Segment 2 Of 2 Previous Hearing Segment(1)
SPEAKERS CONTENTS INSERTS
Page 14 PREV PAGE TOP OF DOC Segment 2 Of 2
H.R. 1300, THE RECYCLE AMERICA'S LAND ACT OF 1999
Wednesday, May 12, 1999
House of Representatives
Subcommittee on Water Resources and Environment
Committee on Transportation and Infrastructure
Washington, D.C.
The subcommittee met, pursuant to notice, at 10:13 a.m., in room 2167 Rayburn House Office Building, Hon. Sherwood Boehlert [chairman of the subcommittee] presiding.
Mr. BOEHLERT. [presiding] Good afternoon and welcome to the Water Resources and Environment Subcommittee.
Today we will hear why meaningful Brownfields and Superfund reform is needed and how these objectives can be achieved. For those who said meaningful bipartisan reform was impossible, I present the Recycle America's Land Act, H.R. 1300. This legislation has 52 cosponsors, 27 of which are Democrats. It is truly a bipartisan product, painstakingly developed to bring us specific, targeted reform.
Before I proceed any further, I want to thank the 52 Members—and I might add that this list is growing—who have cosponsored Recycle America's Land Act. I must also note that the Recycle America's Land Act has strong support within our Republican Conference. Five full Committee Chairmen are cosponsors of the legislation, and the list goes on.
The American people sent us to Washington to solve problems and I am proud that this committee on both sides of the aisle has again stepped up to the plate. I also want to take this opportunity to thank America's Mayors, particularly, businessmen, small businessmen, union workers, and farmers for working with us to not only develop the Recycle America's Land Act, but also in spreading the word on the need for this critical legislation. I would like to share with all of you a list of those now strongly supporting the legislation and the list is long: the U.S. Conference of Mayors, National Conference of Black Mayors, National Federation of Independent Business, National Auto Dealers Association, National Association of Realtors, the list goes on and on.
Page 15 PREV PAGE TOP OF DOC Segment 2 Of 2
With the support H.R. 1300 enjoys on this committee, in this Congress, and outside Washington, D.C., I am going to redouble my efforts to deliver this legislation to the President's desk. In fact, it is my intention to complete the Subcommittee markup of this legislation before the Memorial Day recess and I fully expect that we will be able to complete the Full Committee markup before that Memorial Day recess. And with good cause, because when we go back home, Mayors, business people, gas station owners, people all over this country are going to be asking us: What are you doing about Superfund reform? We will be able to hold our heads high and say we are moving forward with meaningful, specifically targeted Superfund reform.
But I must confess some disappointment. We belatedly received the Administration's position paper last night, testimony from Administrator Browner, with whom I have worked so closely over the years. You know, it really is a little bit unfair to the Committee to get at the last minute the statement, but I understand there are complications in delivering testimony to the Hill. Disappointed in the sense that we have worked closely, we have worked long, we have worked hard. We repeatedly have heard from Mr. Borski, from Administrator Browner, from others last year that we were this close——and I am talking about millimeters apart in real terms, and yet nothing happened. Then, today, we will hear Ms. Browner's testimony and it is not as positive as I would like. And that disappoints me too and it surprises me.
It surprises me in view of the fact that yesterday the President of the United States in Atlanta challenged America to come forward, challenged America's corporations to come forward and said: Help us redevelop our inner cities. Help us redevelop those areas where jobs are needed most. And let me tell you, we accepted that challenge in this committee on a bipartisan basis long before it was issued. We are trying to do precisely that. That is why it is so important that we have the Superfund reform legislation with the brownfields section that we have in there. That is why we have such strong support from our Nation's Mayors.
I have accepted the challenge of the Vice President of the United States, long before it was issued, to address the legitimate concern about urban sprawl, about the flee of jobs and businesses from our inner cities where the jobs are needed most, out to the green fields and development chaos out there. That is why we need this specific, this targeted Superfund reform. So we have worked long and hard to get there today.
Page 16 PREV PAGE TOP OF DOC Segment 2 Of 2
I am very proud of the fact that this is not a partisan effort. I stand second to none in being proud of my affiliation with my party, just as Mr. Borski and my colleagues on the Democrat side are very proud of their affiliation with their party. But the point is public policy comes first and we have to be responsible and we are being responsible on a bipartisan basis. I would point out: We have equal numbers of Republicans and Democrats cosponsoring this. This is not weighted to one side or another. Every time a new Republican comes on, a new Democrat comes on. Every time a new Democrat comes on, a new Republican comes on.
Twelve members, Democrats, on this committee, proudly identify with this legislation. They have been part of the process, as has the Black Caucus, as has the New Democrats, as has the Blue Dogs, as has the Tuesday Group, as has every single faction that we could deal with. We have reached out; we have embraced them. We have said: Come, let us reason together. And you have that product before you today: H.R. 1300. I couldn't be prouder of it.
I have just come from a press conference with our Nation's Mayors. Mayor Morial of New Orleans; Mayor Turner of Dayton, Ohio; Mayor Marshall of Macon, Georgia. They all stood up there and said how strongly they feel in support of this legislation. They pointed out that just this week they have sent a letter to the President, signed by people like Mayor Daley of Chicago and other very prominent national Democrats, supporting this measure.
So we are very encouraged as we move forward and we want from the Administration—and I hope we will get from the Administrator of EPA today—an expression of the right attitude, of how we can work together to fashion something that is desperately needed. Let me tell you, Madam Administrator, I give great credit to the Administration on what it has done administratively to improve this program. You deserve our praise. You deserve a pat on the back for what you have done administratively. But I will tell you something. That is not enough. We want to codify what you have done. We want to put it in hard and fast legislation for all to see so that the legacy that you will leave will be implemented and somebody will resist the temptation in the future to undo the good that has been done.
Page 17 PREV PAGE TOP OF DOC Segment 2 Of 2
So we are proud to acknowledge where you do good work and we say that we want to do good work together in going forward. And, with that, I am proud to leave this microphone and turn it over to the distinguished Ranking Member from the City of Brotherly Love, Mr. Borski.
Mr. BORSKI. Thank you very much, Mr. Chairman. And I want to first commend you for your leadership on this Superfund issue and all environmental issues. You have been a true environmentalist and a true leader for this Congress. I appreciate very much also today the opportunity you have given our guests to present their views. I am delighted that Ms. Browner is here for the EPA and the environmental community will have a say as well as other guests and I think that that is crucial if we are ever going to try to complete this work, this very difficult job that we have.
I think it is important for us to listen to the people who have experience in the field, find out what their problems may be with legislation, and, perhaps, find a way that we can complete the circle, get down what is doable, and get a bill to the President's desk that we can all be proud of.
Mr. Chairman, too often the success of the Superfund program is lost in partisan rhetoric. Too often we hear that Superfund has cleaned up only a handful of sites nationwide. Well, thanks to the hard work of Administrator Browner and her leadership, I am here to state that the Superfund program today is no longer the Superfund program of the early 1990's. Today, over 90 percent of the sites on the National Priority List are either undergoing cleanup construction or have construction underway. Of the 1386 Superfund sites, 599 have had all cleanup construction completion. An additional 464 sites have cleanup construction underway, shovels in the ground. An additional 208 sites have had or are undergoing other cleanup activities which proceed to a permanent solution. Having cleanup completed or underway at 1248 sites out of 1386 is quite a handful.
Page 18 PREV PAGE TOP OF DOC Segment 2 Of 2
Mr. Chairman, look at how far we have come with the current Superfund program in place. With so few sites remaining to enter the program, now is not the time to reverse course and cause unwarranted and unnecessary confusion and delays in cleanup, as well as an increase, rather than a decrease, in the frequency of litigation. While I am not saying that the current Superfund program is by any means perfect, it is working. Most stakeholders are comfortable with the predictability of the current system. Our task, Mr. Chairman, is to find those quick fixes agreed upon by all various stakeholders which we can accomplish without turning the Superfund program on its head.
I look forward to hearing the testimony of today's witnesses. We can learn much from the experience of the Administration, our locally elected leaders, and from representatives of the environmental and business community. And, of course, any Superfund discussion will concern both the successes and failures of the program. Fortunately in the current environment, the successes outnumber the failures. I hope that this subcommittee can build upon these successes and look forward to working with you, Mr. Chairman, to that goal. Thank you, Mr. Chairman.
Mr. BOEHLERT. Thank you very much, Mr. Borski. Now here we have got an unusual situation—well, it is not all that unusual for Washington, D.C. The Administrator has a heavy schedule and the next panel of the Nation's Mayors have a heavy schedule. They have transportation commitments. And so, therefore, we are going to defer any further statements until after the Mayors' testimony and then all my colleagues will be given an opportunity to have any statement they might wish to have for the record. And, with that, we will go directly to the Administrator. It is a pleasure to welcome you back here.
Ms. BROWNER. Thank you.
Mr. BOEHLERT. As an aside, let me offer my condolences for the poor record of the Baltimore Orioles, but———
Page 19 PREV PAGE TOP OF DOC Segment 2 Of 2
Ms. BROWNER. What about the Marlins?
Mr. BOEHLERT. Madam Administrator, welcome.
TESTIMONY OF CAROL M. BROWNER, ADMINISTRATOR, U.S. ENVIRONMENTAL PROTECTION AGENCY, WASHINGTON, D.C.
Ms. BROWNER. Thank you, Mr. Chairman. And I appreciate the opportunity to once again appear before this subcommittee and to work with you and Congressman Borski as we look at how best to construct legislation that will answer the needs of the American people, protect their health, protect their communities, and allow this Administration to build on its incredibly successful—and I appreciate your recognition of our successful record in reforming, through administrative changes, the day-to-day operation of the Superfund program. I want to thank you, Mr. Chairman, I want to thank Mr. Borski, I want to thank your staffs for the work that we have been able to do together in the years past as we have looked at this program, as we have looked at how to manage this program better.
I also, Mr. Chairman, want to say to you that the President's, the Vice President's efforts to cleanup and redevelop our cities—which I really, quite frankly, think is unparalleled and second-to-none. We created the brownfields program five years ago with support from Congress, but not assistance from Congress. We did it in our base budget. We did it without legislation. We are working at 250 sites today. We are leveraging $1 billion in investments. We are out there doing the work that is necessary to help our cities grow, to strengthen our cities, to strengthen their economies. And there is nothing in the concerns which we raised about this legislation that undermines that commitment in the leadership that the President and the Vice President have provided for our cities.
The bill, Mr. Chairman, which you have introduced, we do believe represents a good faith effort to address what we all recognize to be some of the ongoing issues within Superfund. Some of those things which, quite frankly, despite all of efforts—bipartisan efforts; public-private efforts; Federal, State, local efforts—to address through administrative reforms can't quite get to where we need them to be, given some current constraints within the law.
Page 20 PREV PAGE TOP OF DOC Segment 2 Of 2
If your bill were merely a codification of our administrative reforms and sought to address those half dozen issues which you and I agree on, which you, Mr. Borski, and I agree on need some additional attention, we would join hand-in-hand with you, we would fight each and every day to get this to the President so he could sign a new Superfund brownfields bill.
However, I have to tell you, Mr. Chairman, with all due respect—and I was told recently there is no such thing as constructive criticism in this town, but I am going to give it a shot—there are some issues, perhaps you did not intend the consequences, but they raise real concerns in our minds. And I think that part of the problem may be that this program has evolved dramatically over the last six years. The Superfund program we manage today—and I think you recognize this—is a fundamentally different program than 8, 9, 10, 15 years ago. That is why we have had the successes that we have had. That is why we have had so many sites completed.
My concerns are that your proposal fixes problems that perhaps no longer exist. They were part of the old program; they are not part of today's program. I am also concerned that it may, again, unintentionally, but, nevertheless, break some things that are actually working pretty well. And, finally—and I don't believe you personally intended this—but it does create exemptions for some very large responsible parties, Fortune 500 companies, who had full knowledge of what they were doing and full knowledge of the content of their waste. And the effect of that is the cost to cleanup those sites is transferred to the American people and I don't think that is what you intended.
If I might, Mr. Chairman, just briefly mention a few of our concerns. There are not many, but I want to just flag a few. The first goes to a provision in your proposal which we believe would require EPA, prior to sitting down on a voluntary basis with parties to resolve who pays what, to file, prior to an allocation discussion, a lawsuit in Federal court. We do not think that is in anyone's interest. And if I might, I would like to show you a chart of how the program actually works today. It used to work that way. It doesn't work that way today.
Page 21 PREV PAGE TOP OF DOC Segment 2 Of 2
[Chart.]
We now, on a voluntary basis, are entering into almost 60 percent site settlements. All of the parties come around the table like this and we all agree on how to proceed. No lawsuit. No United States versus. People work together, an agreement is reached, and that is ultimately recorded in a court. But there is no knock, knock, the government is here with a lawsuit. There are some instances where that is not doable and then we do file that lawsuit. But, as you can see, in the vast majority of instances, we don't begin the process with a lawsuit, nor do we ever file a lawsuit.
Under your bill, Mr. Chairman—and I can cite you the provision—we would be required, before having an allocation discussion, to file a lawsuit. I cannot believe that is what you intended. I cannot believe that is in the interests of the 214 sites. Those 214 site settlements represents hundreds, if not thousands, of people, where these issues were resolved outside of an adversarial setting, outside of the Federal courts. Why do we want to burden the judges with all of these things we are doing without them?
The second issue that I want to flag, Mr. Chairman, is the way in which I think, again, inadvertently, your proposal, your bill, may contribute to delay in cleanups. The way you have structured the allocation process, lots of parties which we all agree should not be part of Superfund, should have never heard the word Superfund, are going to hear. And I know that is not what you mean.
[Chart.]
I might show you an example of a site that we are keenly aware of. This is what is referred to as the Barbara Williams site. Ms. Williams is someone we don't think should have been affected by Superfund. We have asked Congress to work with us, draw a bright line in the statute. If you are a small business, if you sent garbage, like the stuff you and I put out every Monday evening for the garbage company to pick up, you should never hear the word Superfund. I think there is not a person up here who doesn't agree with that. We have worked hard within the current law to protect those small parties, but we cannot do it without a fix in the law in the way that we all agree it needs to be done.
Page 22 PREV PAGE TOP OF DOC Segment 2 Of 2
Now, at Keystone, which is a landfill, EPA pursued 11 large contributors, large companies, who brought waste to that site. It was our position that those 11 should bear the lion's share, a fair share, to deal with the problems at this site. Those 11 turned around—not EPA—those 11 turned around and they sued 168 to ask those 168 to contribute to the cost. The 168 turned around and sued 589, which is where Barbara Williams is. Under the current law, we didn't even pursue anybody past the top 11. Other parties pursued it. We say, draw a bright line in there and literally hundreds of those, by an Act of Congress, will never hear about Superfund again.
Mr. Chairman, the way you have structured your allocation process, all of those parties have to give us the records so we can figure out their share. If you want them out, don't harass them, don't ask them for their records. Let it be dealt with in the way we are dealing with it today. Let us just take these people out. Let us make sure they are not having to turn things over. Let us draw a bright line in the statute. Small business municipal waste, homeowners municipal waste, they are out. Not companies who went into the profit-making business of hauling waste. Not those large companies—and I won't say any names, but everyone knows who I am talking about. There are two very large ones out there—not those companies who knew what they were getting into. But the homeowners. The small businesses.
Unfortunately, your bill drags these people back in. I don't think that is what you intended, but I have to tell you that is our reading of it. And, secondly, Mr. Chairman, your bill creates a loophole that lets the large waste hauler out of the picture. They knew what they were doing. They should contribute, not the American taxpayer, to cleaning up this problem. They are doing it at sites today. There is no reason they shouldn't continue to be involved. They knew; they had full knowledge; they were in a profit-making business of hauling garbage.
Finally, Mr. Chairman, there are a number of what could well be benign word changes; a word here, a word there. The word ''all'' becomes ''any.'' ''Unnecessary'' gets added. We have asked your staff to help us understand the problem you are seeking to address with all of these word changes. In some instances, they have been able to help us understand; in others, quite frankly, we continue not to understand.
Page 23 PREV PAGE TOP OF DOC Segment 2 Of 2
We do believe that these changes will create uncertainty in the management of the program. If there is a public policy to be served by these changes, help us understand it and we will support it if we agree. But you are taking a law that has been on the books for 15 years and is perhaps one of the most litigated laws in the country and when you change it, you are going to create a whole other round of litigation and, with it, a whole other round of delays. So we would simply ask you to help us understand why ''all'' becomes ''any,'' ''necessary'' ''unnecessary,'' and the list goes on.
The final concern I will raise is the issue of groundwater and this is an issue you and I have discussed before. We do believe it is important to preserve uncontaminated groundwater. And, obviously, there were negotiations last year. The members of this committee are familiar with those negotiations. I think it is not fair when everyone sits at a table and says, I will agree to this, but only when I see the whole package, to then hold them to that at a later time. I am not here today asking you to assume a position that you had last year. I respect that that was part of a package that we were trying to work through which, unfortunately, we were not able to. But I would ask you to work with us to ensure that uncontaminated groundwater, which may become a drinking water supply does not, inadvertently, become contaminated because we failed to take those steps, which are technically, feasibly available to protect that uncontaminated drinking water.
With that, Mr. Chairman, a final suggestion. There are four, five, maybe six things that we all absolutely agree on. There is no disagreement. You know what that list is. I know what that list is. Many members of this subcommittee, many members of the Congress know. We could probably write maybe a 30-page bill. It would probably have no opponents. We could fix the problems for small businesses. We could do what we want to do on brownfields. We could fix innocent landowners. We could fix contiguous property owners. We could fix prospective purchasers. We could do all of that. We could do it with lightning speed.
Page 24 PREV PAGE TOP OF DOC Segment 2 Of 2
Perhaps that is what we should do and avoid the unintended consequences that may come from 160-page bill. Let us take those things we agree on. Let us pass that bill. Let us fix those things which we couldn't fix administratively, which we have admitted have not been things we can address through administrative reforms. Let us answer the needs of those communities and those small businesses and those who want to come to a site, clean it up, and redevelop it. If, then, there are other issues we should continue to debate, then so be it. But why continue to delay the areas where we have absolute agreement? Thank you.
Mr. BOEHLERT. Thank you very much, Madam Administrator. I want this to be something more than an exchange of views between two old friends. I will have a couple of observations on your opening statement and then I will defer to my colleagues for the questions. But just let me say a couple of things.
First of all, I want to make it abundantly clear that everything we are doing with H.R. 1300—that has earned broad bipartisan support—operates under the assumption that, first and foremost, we are going to protect human health and the environment.
Now let me make some observations on some of the comments you have made. You said, initially, you had a few concerns. Not many, but a few concerns. And I appreciate that. Which means that we have developed a pretty good bill if you only have a few concerns, not many.
Secondly—I am just looking at my notes. You said a few benign word changes and we can, obviously, work that out with ongoing discussion between the two of us.
Ms. BROWNER. Good.
Mr. BOEHLERT. Third, you said you have asked our staff to help you understand what we mean when we say certain things. And I have instructed our staff to ask your staff to help us understand why some opposition to some things that you have strongly supported that have been in bills that the Administration has advanced, that have been in bills that Democrats have strongly sponsored?
Page 25 PREV PAGE TOP OF DOC Segment 2 Of 2
I would report that just four months ago in an appearance before the National Association of Manufacturers, when you were asked about your commitment to Superfund reform, you said—and this is a direct quote—''We will be back at it. We will be there. We would like to see it go and we continue to want it to go. I think the President would like nothing better than to see one of the final environmental bills that he signs in his eight-year tenure to be Superfund. It is what he spoke of in his first State of the Union address.''
And I was there and I was one that stood up and applauded that, as I have frequently stood up and applauded States of the Union addresses when the President has addressed subjects that I think have broad-based support across this Nation and that are not strictly partisan. I stand second to none in my record of working cooperatively with the Administration.
You pointed out some of the good work you are doing and I share that view in terms of administrative reforms. But I would point out that Mr. Fields, one of your great guys, the Assistant Administrator, he agreed with us—and this is a direct quote from him—if we would be advancing the cause if we codified Administration reforms. He said—Mr. Fields—quote, ''Yes, I do believe that. I do want to say very positively that there are certain reforms we cannot work effectively unless they are codified. We believe things like the future anticipated land use that everybody agrees to, it would really help to have that in law as opposed to just in guidance. The fact that applicable requirements should apply, maybe we should drop the 'relevant and appropriate phrase.' The treatment of hot spots, highly toxic, highly mobile waste, these types of reforms we have implemented. It would really help to have those in laws. And boy do we really want to help. And the Administration strongly stands behind that.''
And then quoting you on exemption from liability—boy do we want to get small businesses out and it is so very important. And you said—and this is a direct quote—''The EPA remains committed to working with Congress to enact legislation to remove from Superfund liability small parties that contribute trash and small amounts of hazardous waste to Superfund sites.'' We couldn't agree more.
Page 26 PREV PAGE TOP OF DOC Segment 2 Of 2
And you talked about brownfields. You took great pains to point out that you are moving forward with brownfields redevelopment and I agree with that and I applaud that. But the fact remains—and these are figures from your agency, not figures I conjured up out of the sky—there are 450,000 at a minimum brownfields across America where people aren't even looking at it because they are afraid of future liability. That is why the Mayors—Democrat after Democrat, Mayors like Daley and Morial and Marshall, you know, all over the country—are coming forward supporting this.
You said that you think this bill is a good faith effort and I thank you for giving us high marks for a good faith effort and I don't take credit exclusively for that because I worked hand-in-glove with Democrats on this thing. This is not my product. This is our product. And I am still looking at the light because I am going to restrict myself to five minutes. But the point is, Madam Administrator, once again, we have got a bill that I think has earned broad bipartisan support. We feel very strongly about that. And we want to work with you.
One of the things you pointed out in your opening statement, you had some questions about the allocation system. And we will work with you. And, as a matter of fact, what we have done is we have avoided prescriptive allocation because you said that you didn't want that. And so we have avoided that and we want to give you some flexibility.
The bottom line is, if our hearts are in the right place, if we have the right attitude, if we avoid partisanship and we concentrate on good public policy, then I think we can achieve what you have previously expressed an interest in achieving and which I certainly want to achieve and that is a bill that will go forward and be deserving of the universal applause from across this Nation, from all sectors, from all parties. With that, my red light is on, so I yield to my colleague, Mr. Borski.
Mr. BORSKI. Mr. Chairman, I would just be pleased to yield to the Administrator and see if she wants to respond to any of your questions.
Page 27 PREV PAGE TOP OF DOC Segment 2 Of 2
Ms. BROWNER. Well, Mr. Chairman, we obviously stand by everything we have said that you quote. I would just simply suggest to you that, in some instances, the quote was preceded by a statement with respect to small businesses, with respect to this or that issue. You know, it strikes me that, as I said, there are a set of issues we all agree on. Brownfields is one. Mr. Borski's bill H.R. 1750 on brownfields—that is it. It is there. It is done. Let us pass it. You know, there are provisions that we have all agreed to and I don't think your bill is that much different on brownfields.
Mr. BOEHLERT. With all due respect, we have not seen Mr. Borski's bill because that was worked in solo, you know, whereas we worked on a bipartisan basis. So I want to stress that.
Ms. BROWNER. It has 135 cosponsors now.
Mr. BOEHLERT. Every single one of them is a Democrat, Madam Administrator. And let me point out, this committee under this chair is not partisan. We are working on a bipartisan basis. Every single one of the 135 sponsors of Mr. Borski's bill, which has not been shared with us, which we have never been consulted on, are Democrats. And I don't fault them for that. And I have said to the Democrats who are on my bill, if you want to support that bill too, I would encourage you.
Ms. BROWNER. Well———
Mr. BOEHLERT. But the fact of the matter is, we have a 50–50 split. This is a strong bipartisan effort.
Ms. BROWNER. The point that I am trying to make is that, in the case of brownfields, you suggest the Administration has not been willing to support good legislation.
Mr. BOEHLERT. I said didn't recognize good legislation.
Ms. BROWNER. OK. I was simply trying to say to you that it strikes me that there is a bill with a lot of support, Mr. Borski's bill. The Administration supports brownfields. Why don't we pass it? Why don't we just take it and pass it? I mean, that is an example of where it seems to me there is a lot of agreement and we could see this bill passed very, very quickly.
Page 28 PREV PAGE TOP OF DOC Segment 2 Of 2
If there are changes in the Superfund law which this Administration, or which I have previously supported, and you now hear us objecting to, please let us know. I do have to say, however, that to suggest that a sentence which says, ''The President shall initiate an allocation by filing in the District Court of the United States,'' is not something we have ever supported. I am on page 115, lines 13 through 20 of the copy of the bill which I have. That is not something the Administration has ever supported and we do—it is not simply have concerns with it—we oppose it. We don't think it facilitates the work that needs to go on.
Mr. BOEHLERT. Hey, that—I am encouraged because—and I am not going to take—I am going to give you additional time—I am encouraged by what you are saying because if you want to work on the details of the allocation, we will work with you. You know that. That is our history.
Mr. BORSKI. Madam Administrator, I wanted to speak for a minute. Thank you for your words on our brownfields initiative. I did want to just reiterate that, that you would support? That is something the President would sign into law?
Ms. BROWNER. Yes, tomorrow.
Mr. BORSKI. You also mentioned liability reform for small businesses.
Ms. BROWNER. Yes.
Mr. BORSKI. That you would support it? So this is not a position of the Administration trying to do nothing.
Ms. BROWNER. No.
Mr. BORSKI. If we can bring to you the areas of agreement that all of us are on, you would be happy to recommend that the President sign it?
Ms. BROWNER. Yes.
Mr. BORSKI. But this bill, you have problems with?
Page 29 PREV PAGE TOP OF DOC Segment 2 Of 2
Ms. BROWNER. Absolutely. Yes. That is correct. We have problems with this bill.
Mr. BORSKI. With this bill—and the earlier major criticisms of Superfund where it was a lawyer's dream. Lawyers were making a fortune off of litigation. That has slowed down to the point where we are now getting things accomplished. What would this bill do, in your view, to litigation? Would that alter the whole———
Ms. BROWNER. It would dramatically increase the number of lawsuits. The section that I just referred to would require in every allocation situation—which would be all situations; that is what we strive for—we would have to file a lawsuit. So, in other words, at these 214 sites representing hundreds of parties, rather than voluntarily working together, a lawsuit would be filed or lawsuits, number one.
Number two, our concern, in addition to more lawsuits, are the delays that come with those lawsuits. It drags things out. It creates an adversarial setting.
Number three, we do believe—and I can refer you to the section. It would be on page 76 of Mr. Boehlert's bill—that there are very, very significant loopholes created for large parties, many of whom have recognized their responsibility at sites. And the costs that they have been willing to bear in cleaning up these sites would be shifted to the American people. And I think the concept which has been embraced that the largest polluters should pay their fair share of the cleanup is eroded through these loopholes. It is a section that gives the appearance of simply saying, if you sent garbage, you are exempt, but the position we have taken in the Administration is if you are a small business and you sent garbage, you should be exempt. If you are a for-hire———
Mr. BOEHLERT. Excuse me. Is big business garbage different than small business garbage?
Ms. BROWNER. Yes, it is. Yes, it is.
Page 30 PREV PAGE TOP OF DOC Segment 2 Of 2
Mr. BOEHLERT. That is interesting.
Ms. BROWNER. I would be happy to explain how.
Mr. BOEHLERT. I would love to hear that explanation. Garbage is garbage.
Ms. BROWNER. Well, I will give you, I mean, one example that is—no, it is not. For example, there is a site right now involving two large companies. They were aware of the fact that their, quote, ''paper,'' was heavily laden with PCBs. They knew that. It was part of the negotiation when one company bought and sold a portion of the other company. The way your bill is structured, Mr. Chairman, you say garbage includes paper. That paper is not the same as the paper that is coming out of my house, rest assured. It says ''paper'' and then you continue on down to line 20 and it says wastes that are substantially similar, read up above, notwithstanding differences in volume.
I daresay that—and I am trying to avoid saying the names of these companies although this site is fairly well-known and the names of the companies are very well-known—but I daresay a company that was in the business of manufacturing large volumes of paper and taking the waste from that manufacturing process and disposing of that waste is in no way the same as you or I putting out our garbage. Those are two different fact situations and it is public policy. And I suppose you could decide that your position is I don't care if it is a Fortune 500 who negotiated in a sales agreement between 2 companies liability for cleaning that up, I don't care, it should shift to the American people. We have a different point of view on that. We don't think that cost should shift to the American people.
Mr. BOEHLERT. I would refer your staff to page 76 and page 77, lines 25 on page 76 up to line 1 on page 77. Look it over. Consider it. And then we will talk some more on that. And I have doubled Mr. Borski's time because I know I have made a couple of———
Page 31 PREV PAGE TOP OF DOC Segment 2 Of 2
Ms. BROWNER. We are familiar with that.
Mr. BOEHLERT. But, let me tell you, I am just not going to permit—as friendly as we are, as good a relationship as we have had over these years—I am not going to permit my bill—our bill, not my bill, the bipartisan bill—to be miscast or mischaracterized. That is something I am not going to permit. And, Mr. Borski, I doubled your time. I want you to know that, because I did interrupt.
Mr. BORSKI. Thank you, Mr. Chairman.
Mr. BOEHLERT. You are now at your 10 minutes.
Ms. BROWNER. But, Mr. Chairman, if you and I agree on the principal that garbage—small business garbage, homeowners' garbage—shouldn't be part of Superfund and what your goal is is to codify administrative reforms then can I make a suggestion to you?
Mr. BOEHLERT. Sure.
Ms. BROWNER. We have a regulation defining garbage. Why don't you put it in the statute? We will be done. We stand by our regulation defining municipal solid waste. That is not what you have put in this Act.
Mr. BOEHLERT. Is it for everybody's garbage? Do you have a narrowly defined—look, mashed potatoes are mashed potatoes whether they are generated by a Fortune 500 company———
Ms. BROWNER. This is not about mashed potatoes.
Mr. BOEHLERT. All right, paper, lunch bags.
Ms. BROWNER. No.
Mr. BOEHLERT. Whether the lunch bags come from IBM or Mom and Pop's Grocery Store, they are the same thing. So I will be glad to work with you and I would welcome that opportunity. I sometimes have been constrained because of your travel schedule—and I understand that—and my travel schedule———
Page 32 PREV PAGE TOP OF DOC Segment 2 Of 2
Ms. BROWNER. I will stop traveling gladly.
Mr. BOEHLERT. Yes. I understand how difficult it is. It isn't easy what you are doing.
Ms. BROWNER. But, Mr. Chairman, I have tried patiently not to bring up the name of a company but I do think, for the other members of this committee, Browning Ferris and Waste Management are not Barbara Williams. It is that company. Your bill exempts Browning Ferris. It exempts Waste Management. These are companies who made a profit off of hauling garbage. You are right. It is garbage, but it is lots of garbage and we are simply suggesting they should pay their fair share and not the American people. That is our position. It has been our position for six years. Nothing has changed on that distinction. Small business—out. Browning Ferris, Waste Management, you pay your fair share. Simple.
Mr. BOEHLERT. Ragu is ragu, whether it comes from the company cafeteria of the biggest Fortune 500 company or Barbara Williams' restaurant in southern Pennsylvania. The fact of the matter, I am not trying to exempt any cat, fat or lean. We will go to Dr. Horn.
Mr. HORN. Thank you, Mr. Chairman. I am curious, listening to this discussion, how the Administration now strongly opposes the remedy language, such as taking reasonable costs into consideration when selecting from among protective remedies? That is the same language that appeared in your agency's own Superfund proposal in the 103rd Congress. And how can it be wise policy when you propose it and weakening the protection of human health and the environment when Chairman Boehlert proposes it?
Ms. BROWNER. Congressman Horn, I think you need to read the entire section. In our proposal in the 103rd Congress, we had a preference for treatment and then you looked at these factors. The way this is drafted, everything is given equal weight.
Let me explain what I mean in a real-case scenario. As we read this language, rather than treating contaminated groundwater that becomes someone's tap water, it is acceptable to hand them bottled water. And I don't think that is the kind of preference any of us want to see embodied in the statute.
Page 33 PREV PAGE TOP OF DOC Segment 2 Of 2
In our proposal in the 103rd Congress—again, it is a hierarchy of review—but the overarching element of our position was treatment, not simply alternatives. And so the bottled water example is the concern that we raised. You know, it is easy to say, yes, those same 4 words are in the 103rd Congress and they are in—I am sorry. What number Congress are we in?—the 106th Congress. But you can't simply take three words out. You have to read them in the section in which they appear. I mean, you guys know that better than I do; you write these things. We have to read what you write within the section in which they appear.
The way you have written this section, the cost becomes equal to and no different than, in our consideration, treatment. And the reason we could accept that language in the 103rd Congress is that it sat under the umbrella and the overarching goal of treatment. Here we are concerned.
Mr. HORN. May I suggest to you that on page 132 of the Boehlert bill, H.R. 1300———
Mr. BOEHLERT. Dr. Horn, could we refer to that as the bipartisan bill, please?
Mr. HORN. Yes.
[Laughter.]
The Boehlert bipartisan bill.
Mr. BOEHLERT. Skip Boehlert, just bipartisan.
Mr. HORN. That is right. The fact is, he puts out right at the top of the page, ''Consideration of treatment is a component of the remedy.'' And then he goes into the section in general. In ''balancing factors'' under subparagraph (a), ''Determining the appropriate remedial action.'' ''The President shall give preference to remedies that include a treatment component for facilities with source materials that constitute a principal threat.'' Now that is out of your EPA ''A Guide to Principal Threat and Low-Level Treat Waste.'' And, again, I wonder why you say if something it is great; if Mr. Boehlert and the bipartisan group say something, sorry, you lose.
Page 34 PREV PAGE TOP OF DOC Segment 2 Of 2
Ms. BROWNER. You know, Mr. Horn, can I maybe make a suggestion? If we all agree on where we want to be—take the drinking water—that if someone's tap water is contaminated, we don't think a reasonable alternative is to simply give them bottled water. Why did you rewrite the statute? Why are we rewriting the statute if we all agree that the administrative reforms on remedy are working well, that we are finding the cost-effective solutions, that we are doing the sensible thing? You know, I don't hear people screaming about the fact that, where there is contaminated drinking water, we order treatment and not bottled water.
I mean, if we don't—what is the problem we want to fix? What is the remedy at a site that you are unhappy with that you think was unduly burdensome? Let us take that site and then let us construct the answer. But simply rewriting a statute where we don't seem to have a problem is only going to create a problem.
Mr. HORN. Well, I guess my reaction just listening is it would be nice if you and Mr. Boehlert and the bipartisan team sat down without all the histrionics here and discussed these things word-by-word and not have just he-said, she-said.
Ms. BROWNER. Mr. Horn———
Mr. HORN. And what I guess bothers me in this whole thing is I am reminded of Lucy and Charlie Brown. Charlie Brown is well-meaning, compassionate. Lucy holds the football. And every year he thinks, gee, she is not going to pull the football away on me. And, yes, she pulls the football away on you. So the only I way I know is to get in the same room and be serious and discuss these things line-by-line and I hope you can do that.
Ms. BROWNER. Mr. Horn, I have to take some significant disagreement and I do apologize. I sat with Mr. Boehlert, with Mr. Borski for many days last year into very late hours. I think Mr. Boehlert and Mr. Borski are well aware of the fact that I continue to be available to do that. I have not, at this point in time, been invited to do that. I do not fault the Chairman for the lack of an invitation. I believe that one will be forthcoming. But for you to suggest that I am like Lucy pulling the football out, I really think does this process a disservice, with all due respect. Thank you.
Page 35 PREV PAGE TOP OF DOC Segment 2 Of 2
Mr. BOEHLERT. Madam Administrator, but I recall after those days and evenings and early morning hours with Mr. Borski and you and me and our respective staffs, I do recall everyone saying—Mr. Borski and you—we were this close. Now that was a broad-based Superfund reform. Now we have gone to a narrower, more specific, more targeted Superfund reform and, in most instances, have moved in your direction. Now, it seems to me, instead of this far apart, we are this far apart. And that really disturbs and I wonder about that characterization.
Ms. BROWNER. Well, Mr. Chairman, you know, to use an example would be we were there on groundwater last year. You and I shook hands. We were there. We are not now. It is different. I am sorry it is different.
Mr. BOEHLERT. But we left permanence in the statute. I would point that out.
Ms. BROWNER. Well, but it is not———
Mr. BOEHLERT. We accommodated your request.
Ms. BROWNER. With all due respect, uncontaminated groundwater—the agreement that you, Mr. Borski, and I reached last year, and it was a heartfelt agreement, I believe. I think you recognized the importance of protecting groundwater that may become drinking water—is not embodied in this bill. It is not.
Mr. BOEHLERT. Well, I said—and I am guilty of doing what I said I wouldn't do and having this a dialogue between a couple of old friends, so I will go to Mr. Oberstar because I am certain he will bring a new perspective to this issue. The Chair recognizes the distinguished ranking member of the full committee, Mr. Oberstar.
Mr. OBERSTAR. Thank you, Mr. Chairman. Thank you, Madam Administrator, for a spirited, informed, and precise defense of the Administration's action, of EPA's conduct on Superfund, and the principles which we stand on this issue. It is refreshing to have a person of your stature.
Page 36 PREV PAGE TOP OF DOC Segment 2 Of 2
Ms. BROWNER. Thank you.
Mr. OBERSTAR. Your position comes so well-informed, so precise in response to the questions. You are very specific about interpretations. When you say, why the word changes and why this shift from ''all'' to ''any'' and ''necessary'' to ''unnecessary'' and you can't get answers or at least answers that don't explain much, you know, I have been around the legislative process 36 years and those are not accidents. There are very few unintended consequences in the legislative process. They are readily fixed when they are unintended. But I know that whole careers have been built on a change here or there. A word has put a whole family through college.
[Laughter.]
And when you turn to, Madam—notwithstanding differences of volume—little just four words like that, that is a volume in itself.
Ms. BROWNER. Correct.
Mr. OBERSTAR. I know. I have been around this. I have watched the Clean Water Act, over many years of evolution. But there is either a lack of communication or a change of position on either or both sides. Chairman Boehlert believes there are only a few objections and now just recently he characterized the difference as ''that much,'' hands spread wide apart, rather than millimeters apart. It doesn't seem to me that these are just little changes.
So what are these few changes? What are the just the broad—the categories of change or categories where you feel change is necessary for the Administration to give its support to the bill?
Ms. BROWNER. I think there are one of two ways that we could proceed. One is to take the brownfields bill, those things we agree on—and there are those things—and pass it. That would do a lot to address small business, prospective purchasers, innocent landowners, contiguous landowners, and brownfields. Those five things. Reinstate the fees. We could do that. We all agree on those. You used a kind word—spirited discussion, it is true that we all agree on those. We could do that. And that would be my preference.
Page 37 PREV PAGE TOP OF DOC Segment 2 Of 2
Another option—and this is not my preference, but I respect that there are many involved in this—would be to try and do as we did last year and go through this section by section and see if we can write a 200-page bill that we all agree on. Given where this bill starts, there are four significant areas where we are not close, but I am not adverse to the possibility that we may be, through discussion, able to come close.
I will say this, Congressman Oberstar, it is the same issues that we couldn't get to last year. It is the same set of issues that keep coming back that we are unable to bridge the gap on and, you know, sometimes we are closer and sometimes we are less close. That is affecting the issues that we all agree on, so why don't we just pass the things we agree on?
Mr. OBERSTAR. I agree with that. I think there are more than just those five that you have cited.
Ms. BROWNER. That we agree on?
Mr. OBERSTAR. If there were only five, it would be worth doing. But I think there are many, many more issues than that and subsets of issues. I mean, we went through all of that. I know Mr. Borski and Mr. Boehlert and you spent an enormous amount of time in the last Congress trying to resolve it and we didn't get there. So why don't we just—my suggestion—just take up what we can agree on and pass it? Brownfields, largely derived from the bill from the last Congress, the pending bill of the chairman, with a few changes here and there, is one the President can sign?
Ms. BROWNER. Yes. Yes.
Mr. OBERSTAR. Will sign?
Ms. BROWNER. Yes. Absolutely. He would love to sign it.
Mr. OBERSTAR. We can do it.
Ms. BROWNER. Yes.
Mr. OBERSTAR. That's my position.
Page 38 PREV PAGE TOP OF DOC Segment 2 Of 2
Mr. BOEHLERT. Thank you very much.
Ms. BROWNER. Thank you.
Mr. BOEHLERT. Mr. Bateman.
Mr. BATEMAN. Thank you, Mr. Chairman. Madam Administrator, we have used the term small business a number of times today, both from up here and you from the witness table. Would you furnish the committee with what you believe to be the appropriate definition of small business in the context in which it would appear or how they would be dealt with in this bill? Small business means nothing to me———
Ms. BROWNER. Yes.
Mr. BATEMAN. —until you start talking to me about how many people, how many dollars, or how are you going to quantify what is small and what isn't.
Ms. BROWNER. We would be happy—you are right. There are a lot of definitions of small business that exist in Federal law and, in fact, in our discussions last year, we looked to some of those to offer some guidance. But the Administration, for example, on the small business exemption for garbage, 100 employees is the position that we have taken.
Mr. BATEMAN. I don't want you to do it orally with the staff whispering in your ear.
Ms. BROWNER. OK.
Mr. BATEMAN. I want it in writing so that we will have it in draft and as near tablets of stone so we know what we are and are not dealing with when we approach this from any particular perspective or any area of regulatory or administrative involvement.
[The information follows:]
Page 39 PREV PAGE TOP OF DOC Segment 2 Of 2
[Insert here]
Mr. BATEMAN. The other thing I would like would also be something done for the record. You and the Chairman and Mr. Borski and staff refer to hours and hours and hours you have spent with one another in negotiating this and having discussions on that. Obviously all of us aren't privy to those discussions, can't be privy to those discussions, and frankly it is wasting a good deal of our time today to have you come to have you talk about these discussions, each of you characterizing them a different way.
We have the bipartisan bill. I would love and very much appreciate it if you would submit to me, if not the full committee, a marked up version of that legislation indicating all the changes and the rationale for what changes should be made so that we can look it and people who aren't in 18 hours or 20 hours or 100 hours of negotiations would have a much better feel of where we are coming from. I want to know how much of this difference is real and how much of it is rhetorical or if any of it is political. But I want to get———
Ms. BROWNER. We would be happy to do that for you.
Mr. BATEMAN. That would be very satisfying to this member. Thank you.
Ms. BROWNER. Thank you.
Mr. BOEHLERT. Mr. Baird.
Mr. BAIRD. Madam Administrator, thank you much for not only your testimony, but the work you have done to try to improve how the Superfund program functions. I would like to just ask a couple of questions, particularly relating to recycling. Washington State, as you may know, has been on the forefront of recycling efforts, particularly in the areas of steel recycling and other activities. So this question relates to efforts to address Superfund recycling issues. Particularly when we are discussing suppliers of virgin materials used as manufacturing feed stocks, they are not subject to Superfund liability in regard to a contaminated site. But recyclers, however, who supply their commodities as competitive feed stocks are subject to Superfund liability which raises the question: Does the Administration remain supportive of language that would address this competitive disadvantage between recyclers and virgin material suppliers?
Page 40 PREV PAGE TOP OF DOC Segment 2 Of 2
Ms. BROWNER. Yes, and I think, as you are aware, there was a bill last year. Was it S.2180? There was language in that bill designed to address that issue. We were supportive. Unfortunately, that bill was modified in the final days, which led us to oppose it. It was not that language that we opposed; it was other language that was added. Yes, we continue to support that.
Mr. BAIRD. OK.
Ms. BROWNER. I want to be careful here. There was specific language in that bill which we supported.
Mr. BAIRD. Right.
Ms. BROWNER. Were that language, identical, to show up somewhere else, we would continue to support it.
Mr. BAIRD. I appreciate that distinction and understand.
Historically, the Administration, including EPA, the Department of Justice, and CEQ have opposed relief from reliability and recycling provisions for materials containing PCBs at concentrations greater than 50 parts per million, which is the current Toxic Control Substance and Control Act standard. Does the Administration continue to oppose that kind of liability relief?
Ms. BROWNER. Yes. If the PCB contamination is 50 parts per million or greater—this is what happened to that bill, as I think you are well aware.
Mr. BAIRD. Right.
Ms. BROWNER. We were supporting it and then an exemption for PCB-contaminated paper got added to it and that caused us to oppose the bill and we do continue to oppose an exemption for PCB-contaminated paper or materials in excess of 50 parts per million.
Mr. BAIRD. Thank you very much.
Ms. BROWNER. Thank you.
Page 41 PREV PAGE TOP OF DOC Segment 2 Of 2
Mr. BAIRD. Thank you, Mr. Chairman.
Mr. BOEHLERT. Thank you very much. Mr. Simpson.
Mr. SIMPSON. I thank you, Mr. Chairman. In the discussion you just had with the Chairman when he asked you if garbage is garbage and you said, no, it is not, in distinguishing the two differences, you said one is paper that is produced and has PCBs on it.
Ms. BROWNER. That was one example, right.
Mr. SIMPSON. Well, you were talking about two different substances. Let me put it another way. If the substance is hazardous and a threat to the public—the public health and safety—and it is produced by a company that has 75 employees, is it the same threat to the public company if it produced by a company that has 150 employees?
Ms. BROWNER. I think that we are changing issues here. We are going from hazardous toxic. We were at garbage.
Mr. SIMPSON. If you use the same paper. You were discussing, though, when you said garbage is not garbage, you chose two different subjects—two different pieces of garbage. Does the same garbage that has paper that has the PCBs on it produced and that is a threat to the public, does it matter whether it is produced by a small company or a large company?
Ms. BROWNER. There is toxicity of waste, is obviously an issue. And it is the toxicity that is, the greater the toxicity, the greater the costs of the cleanup. When you and I put out our garbage, it is a little bit of everything.
Mr. SIMPSON. True.
Ms. BROWNER. It is not all of one thing. It is a little bit of everything. When a manufacturer of—what would be a good example—furniture wax puts out their garbage, it is not a little bit of everything. It is a lot of furniture wax. It is a lot of the chemicals that go into making the furniture wax. Simply because both parties put it out at the curb and it was picked up by a waste hauler, shouldn't be their sole determining factor.
Page 42 PREV PAGE TOP OF DOC Segment 2 Of 2
What we are recommending and what we have recommended is either below a certain business size— you should come out if you are a homeowner, if you are a nonprofit, if you are a church, you should come out. If the nature of your waste exceeds the toxicity threshold, then you should be part of an allocation process. But if you are simply putting out—you know, you are a small business, you own a stationary store, you know, on Main Street—and you are putting out kind of a little bit of a lot of stuff, you should be out. We agree.
So there is a difference in what people put out.
Mr. SIMPSON. Good. I am glad to know that the same thing is the same thing whether who put it out there. We just treat it differently. Let me ask another question.
Ms. BROWNER. Because it contributes to the cost of the cleanup differently.
Mr. SIMPSON. I understand. Let me ask you another question. One of the problems that I have with this bill is that I have been told that, because it doesn't deal with one of the problems that I have, is it doesn't with NRDs or it doesn't deal with lead in soils issues and those types of things and the reforms that I think are necessary in those areas and I have been told that any attempt to address those issues kills the legislation by the Administration. Is that true?
Ms. BROWNER. NRD is a complicated issue.
Mr. SIMPSON. It is.
Ms. BROWNER. I will tell you our reading. There is no section in Mr. Boehlert's bill on NRD.
Mr. SIMPSON. That is right. I am talking about Superfund reform in general.
Page 43 PREV PAGE TOP OF DOC Segment 2 Of 2
Ms. BROWNER. The Administration has had the position over the years, recognizing how complicated NRD is, that there are other areas where we all agree and we should move those forward while we continue with the Congress to see if something can be found on NRD that is acceptable to everybody.
Can I—just bear with me for just one moment?
Mr. SIMPSON. Sure.
Ms. BROWNER. EPA is not one of the trustees—am I losing you?
Mr. SIMPSON. No.
Ms. BROWNER. OK. It is Interior; it is NOAA. And we are happy to have them come up and talk to you about NRD. It is a section of the law that EPA is not responsible for and so I am not as well-versed in it. But I will tell you that when we read this, we were concerned. I think people should be aware that simply because it doesn't have a section on NRD, doesn't mean that this bill doesn't affect NRD. We believe it does have an affect on NRD. We believe that, in some instances, it may, in fact, transfer the liability for NRD over to the trust fund. And I think that is something that everyone should explore as to whether or not—that has not been the Administration's position, but I think it would need a fuller conversation.
That is our reading of it. Maybe we misread it. We went over and over it last night. That was how we came to understand what was done with NRD in here and maybe we are wrong, but that is our current reading of it.
Mr. SIMPSON. Well, let me tell you one of the problems I have when I hear the conversation going on in this room about why we don't we just pass the stuff we can agree on is that if we just passed the stuff we agreed on, we will never do some of the reforms that are necessary in some other areas, I believe, and that is some of the problems I have, not only with this bill, but with the other proposal, the brownfields proposal, that has been introduced.
Page 44 PREV PAGE TOP OF DOC Segment 2 Of 2
Ms. BROWNER. And I agree with you and the Administration, I think as you are well aware, for many years took the position that reform shouldn't be piecemeal; it should be comprehensive. But after six years of trying to get a comprehensive bill, I think we recognize that it may not be doable and, in the meantime, there are people out there who we all agree should be relieved of any liability who aren't getting that relief.
I will be honest with you, the Administration has changed positions. We have come to a mind, that comprehensive reform and all that has to be resolved in, ''comprehensive reform'' is really preventing relief for hundreds, if not thousands of people who—there is no disagreement between any of us—deserve relief. That is why we have changed our position, which is to pass the things we agree on; provide the relief; clarify issues of prospective purchaser, and contiguous landowners. We don't have any disagreement on those.
Mr. BOEHLERT. Thank you very much, Mr. Simpson. One of the other areas of agreement with the Administration, when we are dealing with NRD, we acknowledge that it is very controversial. It is very complex. And so we did not feel that in a specifically, narrowly targeted bill, it had a place. That is another debate for another day. And I think the Administration and the Chair are in general agreement on that. You see, there are so many areas, Madam Administrator, where we are in agreement.
Ms. BROWNER. We are concerned that you may have—and you may not have intended this—but in the drafting you may have affected NRD. So we should just talk about that.
Mr. BOEHLERT. Sure. Fine.
Ms. BROWNER. I don't think you meant to. I mean, listening to what you are saying, my sense is you don't———
Mr. BOEHLERT. Maybe you can read my mind. I didn't mean to.
Ms. BROWNER. You didn't mean to touch NRD.
Page 45 PREV PAGE TOP OF DOC Segment 2 Of 2
Mr. BOEHLERT. As in your analysis, that is an unintended consequence.
Ms. BROWNER. OK.
Mr. BOEHLERT. I am educable. Thank you very much. Mr. Barcia.
Mr. BARCIA. Thank you, Mr. Chairman. Mr. Chairman, just because it is controversial doesn't mean we shouldn't go after it.
Mr. BOEHLERT. Well, we are going to address NRD. There is no question about that in my mind. Nor should there be in anyone's mind. It is just that, in a narrowly targeted, very specific reform bill, as the administrator has said, we are looking for areas of common agreement where we know we can go forward. Quite frankly, if we had an NRD section in this narrowly, specifically targeted reform bill, I think it would be the death knell of the bill and that creates a real problem for those of us who are genuinely interested on a bipartisan basis with going forward with meaningful, targeted, specific reform. And I notice—let the record show that the Administrator is nodding her head yes.
Ms. BROWNER. And let the record show that I had turned around to clarify an issue about a site in Mr. Simpson's district and was not listening.
Mr. BOEHLERT. All right.
Ms. BROWNER. I apologize.
Mr. BOEHLERT. But let the record show that the Administrator acknowledged she nodded she nodded her head yes while———
Ms. BROWNER. I apologize. I should have been listening. I apologize. I was trying to understand something about one of your sites, Mr. Simpson, and I apologize.
Mr. BOEHLERT. Madam Administrator, we understand how it works because we are all listening to other voices. Mr. Barcia.
Page 46 PREV PAGE TOP OF DOC Segment 2 Of 2
Ms. BROWNER. I apologize. I should not have been doing that.
Mr. BARCIA. Yes. Thank you, Mr. Chairman. And thank you, Administrator Browner, for being with us today and, again, sharing your views on this important legislation. Recently there was a communication, I believe, that you had sent to Speaker Hastert———
Ms. BROWNER. Yes.
Mr. BARCIA. —regarding the Quincy landfill in Illinois and EPA, of course—and I believe you signed it— sent a letter seeking a total of about $3 million from 165 local firms. Companies on the list included not just the local McDonald's restaurant but also a fertilizer company, construction companies, oil distributors, photographers, and trucking companies. Not all of these firms have wastes that are substantially the same as household waste. In your recent letter to Speaker Hastert on the subject of the Quincy landfill, you said, ''EPA remains committed to working with Congress to enact legislation to remove from Superfund liability small parties that contribute trash and small amounts of hazardous waste to Superfund sites.''
I would like to ask you, if you could, to expand on what you mean by trash. Do you mean all the waste generated by these business or just waste that is substantially similar to household waste? And, also, what do you mean by small amounts of hazardous waste? Do you mean the de minimis amounts, 1 percent or less? Or do you mean one or two drums of material?
And what I would also like to say is during your earlier testimony, it appeared to me like I don't know how you can distinguish between hamburger buns from Grandma's Cafe and hamburger buns, for example, that would be put in a landfill by McDonald's restaurant. Do you view a McDonald's restaurant as part of the larger corporation, as a franchise, or, in your statement that you consider a small business to be a company of less than 100 employees, would that be corporate wide or would that be at that specific location in that particular franchise?
Page 47 PREV PAGE TOP OF DOC Segment 2 Of 2
Ms. BROWNER. You asked about 10 questions so let me see if I can comb through them. I think the best way for me to try and answer them is to back up and explain to all the members what the Quincy site is because I think it is illustrative of why we need legislation. I think it is exactly why all of us agree on some portions of legislation.
Quincy is a landfill. It is virtually identical to the Key Stone situation. There were a number of larger responsible parties and then there were lots of other people whose garbage was going to the landfill. We have asked Congress to draw a bright line in the statute. We have asked—Key Stone is a good example—to draw a line to essentially take out the vast majority of people below the 11. We don't, right now, have that legal authority. Under the Superfund law, under the court interpretations, any of the parties that we seek to cover the cost of the cleanup—in the case of Key Stone, it was the top 11—are free to sue anybody else. We can't clearly block their ability to do that.
So what we have done under our administrative reform is we contact parties if we think they are about to be sued by one of the bigger parties to say, you are about to be sued by one of the larger parties. For a settlement, we will defend you in court against the larger parties. This is not my preference. Draw a line in the statute and take them out. But I can't do that without the change in the statute. So I am doing what is not even the next best thing, it is about the 10th best thing, but it is the only thing that the law allows me to do.
That is what happened in Quincy. The bigger parties were about to start coming down into the smaller parties, so we wanted to get to them first, not because we think they should be part of this, but because that is how the law is structured today.
Now, in terms of your second question, which is—and I think is sort of your question—garbage is garbage is garbage is garbage. There is a change—this is one of the issues that Mr. Oberstar was speaking to—where the language is ''substantially similar,'' as opposed to ''essentially the same.'' Now, you know, I was an English major. Many of you were probably English majors. You know, it doesn't seem like any difference, but the truth of the matter is it is a world of difference in Superfund. When you go from ''essentially the same'' to ''substantially similar,'' when you change the law, the courts will say, ha, they meant something else to happen. They meant something that was not previously included to be included or something previously excluded to be expanded.
Page 48 PREV PAGE TOP OF DOC Segment 2 Of 2
Our strong suggestion would be, with respect to garbage, that we not change the language. It is well agreed to. Everyone knows what it means. And that we add to that definition of what is garbage a definition of small businesses who are not going to be responsible if that is what they were sending. So you build on what is already agreed to rather than redoing it, creating lots of—I promise you. We will litigate in every district court in the country where there is a Superfund site the change from ''substantially similar''—no, it goes from ''essentially the same'' to ''substantially similar.''
Mr. BARCIA. Just one last. In the example you gave relative to PCB-contaminated paper, because some of us can't imagine the difference between say a waste from a local high school cafeteria versus waste from a General Motors plant out of a similar cafeteria, why, you know, a big corporation would have deep pockets if you were going to litigate over mashed potatoes or basically dispose of———
Ms. BROWNER. It is not a question of deep pockets. General Motors' waste is pretty different from your average high school. It is different. They run a manufacturing process. They have employees who wear gloves. They throw the gloves away. The gloves are contaminated. You know, it is different. I mean, you may think it is garbage and, you know, you would walk by the Dempsey Dumpster and it smells like garbage, but the issue for us and the issue for the taxpayers is what drives the cost of that cleanup. And you are exactly right. It is not the forks and the bottles from the high school. We think they should be out. It is the manufacturing waste.
The wax example is the best example. The cost of a landfill cleanup is not driven because a lot of us throw out the empty bottle of Pledge. That is not what is driving it. But if you have a landfill where the manufacturer of furniture wax at the end of every business day was cleaning everything up and taking that to the landfill for 20 years, that drives the cost of the cleanup. There is a toxicity in that that needs to be accounted for in the cleanup. That is the distinction that we are making. It goes back to: Where do you shoulder the cost of cleaning up the site?
Page 49 PREV PAGE TOP OF DOC Segment 2 Of 2
They are giving me another example that might be easier to understand. In the manufacturing—I thought they were telling me don't use Pledge. It says Pledge on here.
[Laughter.]
Another example would be, obviously, in the manufacturing process there are errors. There are what are called off-specs. And you have to dispose of them. So the Pledge manufacturer—and Pledge, as far as I know, is not involved in any site. I just, you know, I use it so I happened to pick it. You know, they are throwing away high volumes of it because it was off-spec. That contributes to the cost of the cleanup. That is the issue for us. It is the cost.
Mr. BARCIA. Do you think there is a substantial amount of PCB-laden material still going into the sites even though the manufacture of PCBs has been banned for many years?
Ms. BROWNER. There are sites, unfortunately—remember, we are dealing with the legacy of our industrial past in many instances. And so there are sites where there are contaminated—well, PCB contamination is one of our biggest challenges, unfortunately. I would say far too many sites and one of our bigger, you know, one of the more difficult type of sites that we face. So the issue isn't what is happening today. The issue is what happened in the past. That is the issue.
Mr. BOEHLERT. Here is the Chair's intention: to go to Mr. Baldacci. We have a vote on. He will have his round. And then we will take a very brief adjournment, dash over there and dash back, because we can't wait to hear the rest of your commentary. Mr. Baldacci.
Mr. BALDACCI. Mr. Chairman, given the fact that it has been hard to live within the five-minute rule maybe what would be wiser, because of the———
Page 50 PREV PAGE TOP OF DOC Segment 2 Of 2
Mr. BOEHLERT. We will give you six.
Mr. BALDACCI. OK, Mr. Chairman. Well, first of all I want to use that first minute to thank you for the work that you have done in trying to draft a document that would get bipartisan support and that you have spent an awful lot of time on and appreciate all the time that you have spent because I have appreciated working with you. There are some issues that we need to work through and I just want to ask the Administrator, there is one particular area that does concern me of the proposed bill if you have it in front of you—and I have been trying to figure it out and not being an attorney, I would lean on as much objective advice as possible—but on page 128 of the bill, where———
Mr. BOEHLERT. Objective advice? Excuse me. I just wanted to make sure—I didn't hear that.
Mr. BALDACCI. Objective.
Mr. BOEHLERT. Thank you.
Ms. BROWNER. That was me he was thinking of.
Mr. BALDACCI. Well, I tried and I figured that five minutes really isn't going to work here. That is why———
[Laughter.]
But would you just—there have been concerns that have been raised that they are changing the standard for the cleanup of groundwater. And that is a concern to me with all of the work that has been done in Maine by both Senator Muskie and Senator Mitchell in regards to clean water. And I would hate to think that we—or I was participating in an effort that was going to loosen those standards for any future cleanup efforts. And the part that I was particularly interested in is in that section of remedy selection. And what in this remedy selection part of the bill loosens that standard?
Ms. BROWNER. On page 128—oh, wait. Hold on.
Page 51 PREV PAGE TOP OF DOC Segment 2 Of 2
Mr. BOEHLERT. While you are checking, I just want to let Mr. Baldacci know I worked very closely with Senator Mitchell and Senator Muskie. I did my share.
Ms. BROWNER. I apologize.
Mr. BALDACCI. And we have worked very closely on dairy issues.
Ms. BROWNER. If you would look at the bottom of page 130, section 4(a) continuing on to 131. The concern we have with that language is I think really sort of twofold. One is the restoration of contaminated resources to potential beneficial uses. Here is what we are talking about. Maybe it is not a drinking water supply today and maybe it is hard for us to predict when it would become a drinking water supply, but treating it so, that that option of a drinking water supply remains viable for the community, we think, is important. It is how we have handled this issue in our administrative reforms. And maybe this is an example of where we could provide to the Chairman this precise administrative reform, which could just be codified as opposed to this issue.
The second issue is the language on page 131, lines 4 and 5, where is says—and, again, maybe you didn't intend this, but this is certainly on reading of it—''considering reasonable points of compliance.'' A point of compliance could be your tap. So, in other words, bottled water would become an acceptable solution as opposed to the treatment.
The final concern we have is —and this is the issue that Mr. Boehlert and I were discussing previously—the protection of uncontaminated groundwater. You may have groundwater that is contaminated. A concern is if it migrates into uncontaminated groundwater. And last year—and this has been an ongoing discussion—we, I thought, had been able to find some agreement over where it is technically and feasibly possible to protect the uncontaminated groundwater. We should all do that. That is a good thing to do. That is not embodied in here, that protection.
Page 52 PREV PAGE TOP OF DOC Segment 2 Of 2
Mr. BALDACCI. Well, thank you very much.
Mr. BOEHLERT. Thank you. Just before we take a brief recess, let me point out something more to you. We took almost word-for-word this section from H.R. 3800.
Ms. BROWNER. It is the ''almost.''
Mr. BOEHLERT. H.R. 3800. Guess where that came from? From you. And then we would cite your regulations because we used your language and your regulations. The NCP preamble also acknowledges that, quote, ''An alternative point of compliance may also be protective of public health and the environment under cite-specific circumstances.'' Federal Register, 1998, and on and on. But this is from EPA. So what we have tried to do, Madam Administrator———
Ms. BROWNER. That is not the language in here.
Mr. BOEHLERT. And I have to run over and vote now.
Mr. BALDACCI. Mr. Chairman.
Mr. BOEHLERT. What we have tried to do is take almost word-for-word———
Ms. BROWNER. But it is the ''almost word-for-word.'' If you like it, take it word-for-word. You didn't do that.
Mr. BALDACCI. Mr. Chairman, reclaiming just a minute of my time, I just want to say to Administrator Browner is that this program needs reform. This program has problems in the way that it is being operated and it is not to the benefit of the public and to the taxpayers the way that it is currently being operated. So I do think that we have some work to do and that we do need to work together to get to that point. And I now would yield back the balance of my time.
Mr. BOEHLERT. Thank you. I hope you are looking to the Chair when you say we need to work together because we will. We look forward to it. In the tradition of Ed Muskie and George Mitchell, two people for whom I have a deep and abiding respect. Thank you very much and we will briefly go for five minutes and we will be back later.
Page 53 PREV PAGE TOP OF DOC Segment 2 Of 2
[Recess.]
Mr. BOEHLERT. The subcommittee will be back to order and it is my privilege now to recognize our colleague from New Jersey, Mr. Pascrell.
Mr. PASCRELL. Thank you, Mr. Chairman. When I looked at the chart that was there, Madam Administrator, the one that was up on your———
Ms. BROWNER. We can put it back.
Mr. PASCRELL. No. I don't need it anymore.
[Laughter.]
It reminds me of the argument, the discussion, that we had, Mr. Chairman, last year on one of the sections of the Superfund that we debated. And, while I believe, Mr. Chairman, that you have worked very hard to move us in a direction of abatement rather than prosecution, I think this is a step forward. Abatement is far more productive. It helps us cleanup the properties and forges cooperation, having seen it work in New Jersey.
But I remember that one of the debates that we had last year, in opening up those agreements—it has cleared my mind like it happened yesterday. And I am glad that that has been taken out of this proposal in the 106th Congress. I mean, could you imagine what would happen if we opened up Love Canal and looked at the agreement that was forged many years ago. Talk about opening up a Pandora's Box and giving a lot of work to a lot of lawyers—which may be good. I have got two in my family—but that is not the direction we should be going in. And I thought that that was an agreement that we made.
Mr. BOEHLERT. The Chair agrees with you.
Mr. PASCRELL. But when I look at the, you know, settlements and lawsuits. That was a very important chart that was placed up before us. I must ask the Administrator a question. First, I want to thank you for coming. And you are very articulate. You are very up front. I like that. You must be from a city.
Page 54 PREV PAGE TOP OF DOC Segment 2 Of 2
[Laughter.]
Ms. BROWNER. We think of Miami as a city.
[Laughter.]
Mr. PASCRELL. As a legislator that has dealt with litigants in Superfund cases over a decade, I appreciate the impact the litigation can have on the overall speed of Superfund cleanups, which are, on the average now, 12 years.
Ms. BROWNER. It is getting better.
Mr. PASCRELL. 12 years is a lifetime.
Ms. BROWNER. I agree.
Mr. PASCRELL. In a business that is hanging on and neighbors that want to know what the heck is going on. By the way, I think you could do a much better job at EPA in informing neighbors what this cleanup stuff is all about.
Ms. BROWNER. OK.
Mr. PASCRELL. We are not there, believe me.
Ms. BROWNER. OK. If there is something specific we are happy to do it. We do have timetables and we can work that out with you.
Mr. PASCRELL. Well, I do have some specific questions. I have always stressed the process of abatement over litigation. And I know, at first, when we talked about that, those folks involved, deeply involved, in environmental issues surrounding us stood back. Prosecution, except in rare cases, works. If we don't have cooperation, this is not going to happen.
Am I correct in assuming that the EPA feels that H.R. 1300 will dramatically increase Superfund litigation? And what effect will this increased litigation have on the speed up of cleaning a particular property, whatever that property is?
Ms. BROWNER. Yes.
Page 55 PREV PAGE TOP OF DOC Segment 2 Of 2
Mr. PASCRELL. Two questions.
Ms. BROWNER. Yes. It will dramatically increase litigation in two ways. Second, litigation, in my experience, always results in delay. Where we can reach a voluntary agreement with all of the parties on how to share the liability and proceed to the cleanup, we are better served than when we enter into litigation. To initiate an allocation process to bring parties to the table under this bill we are required to file an action in district court. I can't even fathom why when right now at almost 60 percent of the sites which involve hundreds of parties, we are getting a resolution and not burdening a Federal judge, not creating an adversarial courtroom discussion. Discussion would be a kind word, argument.
Mr. PASCRELL. You are right. What I don't quite understand to the Chair, Madam Administrator, is that I have watched the Chairman of this committee very carefully, particularly on these issues and it would seem to me that he would want to contract the process and not extend it. But if your chart is not hyperbole, but reality, it would seem to me that we are doing is opening up a door that we don't want to open and would be in conflict with the general mission and principal stated by this Chair last year. And what I don't quite understand, Mr. Chairman, is I believe that is what I have perceived in you.
Mr. BOEHLERT. Your perception is accurate.
Mr. PASCRELL. And it would seem to me, though, that the Administrator has touched upon a situation that we need to address. Because if we are going to prolong this further, our 12 years which is moving now to 11 years and 7 months or 6 months will now go up to 12 years and 4 or 5 or 6 months. That is not what we desire, Mr. Chair.
Mr. BOEHLERT. Mr. Pascrell, let me assure you, we will be most happy to work with the Administrator on the details of the allocation system.
Mr. PASCRELL. Thank you, Mr. Chair.
Mr. BOEHLERT. Thank you very much. Mr. Sherwood.
Page 56 PREV PAGE TOP OF DOC Segment 2 Of 2
Mr. PASCRELL. Good to hear you say that.
Ms. BROWNER. Thank you.
Mr. SHERWOOD. Thank you very much, Mr. Chairman. Secretary Browner, without getting too wordy. I have got to give you a little background.
Ms. BROWNER. OK.
Mr. SHERWOOD. I represent northeastern Pennsylvania, and we have some of the most beautiful, pristine rivers, water, streams, the Upper Delaware, the Upper Susquehanna, the Poconos, the endless mountains—we have it. It is one of our major assets and I want to protect it. I also represent the old anthracite mining areas, so I understand a ravaged landscape like few people have the opportunity to see close-up and personal.
Before in my other life, before I came to Congress, which is not that far away, I was an automobile dealer. And all my life we changed people's oil. And we took that oil in and sometimes you burned it in a waste oil furnace or what you had left over, you gave to an approved recycler. And lots of people in the same position as I am now were lots less prosperous, little gas stations, tiny garages, and they did the right thing.
And I would like to know what your opinion is if the site that they disposed of this oil in, following all the rules, goes bad, I would like you to help me understand why they should be responsible?
Ms. BROWNER. We would agree, and we have previously agreed with an exemption, it's commonly referred to as the recycler exemptions. For example, scrap metal, oil, plastic, glass. Mr. Chairman, I see you shaking your head. I think we all have agreed on that. I would suggest to you that your bill goes a little bit further than that. I think we can work on that. But with respect to the fact situation that Mr. Sherwood is raising, recycled oil, we agree with you. They should not find themselves a part of Superfund. There is no disagreement. This is one of the things that we would recommend expeditiously pass through the Congress.
Page 57 PREV PAGE TOP OF DOC Segment 2 Of 2
Mr. BOEHLERT. We are glad it's contained in the bill. Thank you very much.
Ms. BROWNER. But we would just suggest that your recycling language has some more components to it. This component we can support, yes.
Mr. SHERWOOD. To what extent? What would your language be? How would we get this out of the present law?
Ms. BROWNER. I'm trying to write legislative language kind of on the fly, but I think it would essentially be any—here's the challenge and this is why the nuances of this are not insignificant.
Mr. SHERWOOD. I understand.
Ms. BROWNER. We agree with you that the corner gas station, the automotive—you owned a dealership as I understand it?
Mr. SHERWOOD. I did, yes. I do.
Ms. BROWNER. A dealership, obviously.
Mr. SHERWOOD. A Jiffy Lube?
Ms. BROWNER. Now this is where things start to change.
Mr. SHERWOOD. OK.
Ms. BROWNER. And the reason is, and there is a reason here, and I don't want to say that it is Jiffy Lube specific, but an example, but to use a very, someone in the business of, exclusively in the business of is very different from someone in a different—you were in the business of selling cars. You also have to change oils. So that's the distinction here, but in terms of what you're raising. Well, it can look like it's not a distinction with all due respect, but, again, where we come from on this is the taxpayer. And when you look at the cost of cleaning up one of these sites, what drives it is toxicity, volume of toxic materials.
Page 58 PREV PAGE TOP OF DOC Segment 2 Of 2
Mr. SHERWOOD. And litigation.
Ms. BROWNER. Not the clean-up of the site. I'm not suggesting there aren't litigation costs, and we have worked hard to minimize those, and with the right bill, we could further minimize those. But I'm talking about the dollars spent to bring in the clean-up crews, to run the bulldozers, to build the walls, to cap the landfill. When you look at the nature—the engineering, the construction necessary, it is driven by toxicity and volume of toxic materials. That's the nuance here. It can sound like oil is oil is oil, but the fact of the matter is someone who is in the business 24 hours a day and is a business, as opposed to someone like yourself who is doing a variety of things, one of which happens to be, that's the distinction we would make.
Mr. BOEHLERT. Well, thank you very much.
Ms. BROWNER. Thank you.
Mr. BOEHLERT. I'm very glad to know that you support our bill.
Ms. BROWNER. No, I didn't say that.
Mr. BOEHLERT. Well, she supports a section of the bill.
Ms. BROWNER. No, I didn't say that.
Mr. BOEHLERT. Yes, you did.
Ms. BROWNER. No, no, no.
Mr. BOEHLERT. Besides the nuances.
Ms. BROWNER. No, well, but you know what?
Mr. BOEHLERT. No, we responded to what you said last year. We did. You said you want these guys, the fleets and everything. We were letting them off the hook. And we said, you know what? You're right, we're not going to let them off the hook, but we want this corner gas station. We want the individual auto dealer. We want to give them the exemption.
Ms. BROWNER. Mr. Chairman———
Page 59 PREV PAGE TOP OF DOC Segment 2 Of 2
Mr. BOEHLERT. And then those in the future prospectively who comply with EPA standards, we say OK to them too for the exemption.
Ms. BROWNER. Mr. Chairman, with all due respect, your bill lets fleets out. I was trying to avoid having to get into that publicly and to work with you privately.
Mr. BOEHLERT. Because prospectively we say those who abide by EPA regulations?
Ms. BROWNER. No, no, it's not a prospective issue. I'm happy to show you the section.
Mr. BOEHLERT. I would be most happy, in a timely fashion. Thank you very much. Mr. Borski, do you have any further questions?
Ms. BROWNER. For business, we agree with.
Mr. BORSKI. Mr. Chairman, yes, I just want to thank the Administrator for her testimony and just follow-up on one thing because I want to make sure that this is clear to the future panelists as well as to yourself and other members of the committee. Madam Administrator, my question is would you support legislation that the brownfields, small business exemption, prospective purchaser, and contiguous and innocent property owners, if we could carve a bill out in those areas, would you be supportive?
Ms. BROWNER. Yes, and I think there are probably two other issues we could add to the list.
Mr. BORSKI. That perhaps are something that have been generally agreed to.
Ms. BROWNER. Prospective purchaser, the truly innocent landowner, what we mean there is a person who has no reason to know, no way to know, exercise due diligence, couldn't discover it.
Page 60 PREV PAGE TOP OF DOC Segment 2 Of 2
Mr. BOEHLERT. Scrap recyclers? I mean you've already done it before, so now you're not going to retract?
Ms. BROWNER. I'm sorry, which recyclers?
Mr. BOEHLERT. Scrap recyclers, glass.
Ms. BROWNER. We said scrap. We said scrap metal, plastic, glass.
Mr. BOEHLERT. You're coming a long way. I think we're getting there.
Ms. BROWNER. Mr. Chairman, I don't mean to be difficult, but I am concerned that I frequently hear quotes of things that I've said; and I don't deny that I've said them, but they were in a context that is not brought to bear in this discussion. And the nuances of how we re-write the Superfund law will be as important in—will drive how much litigation unfolds as much as anything. And I think there are huge sections of the program that we all agree are not broken. And simply tinkering with them, and that is what you may think it is and that theoretically I should be able to agree to it, I would simply suggest to you that that tinkering will bring hundreds of lawsuits while everyone argues over what that tinkering meant. That has been our experience time in and time out.
So to go back to Mr. Borski's point, I think prospective purchasers, truly innocent landowners, contiguous property owners, small businesses, who sent municipal solid waste as defined in the EPA regulations, which are publicly available, the recyclers that we have just discussed, brownfields, the fees. That is a bill that could be written tomorrow and passed. Those are all areas where I don't hear any disagreement in this committee, which is not to say there aren't people who would like to do some additional things. I recognize that, and we would be willing to work on it.
But a lot of the concerns I've heard from members, for example, Mr. Sherwood, we agree with his concern. We think it should get fixed, but the people he is speaking of are going to get caught up while we try and work through very cumbersome issues, which, quite frankly, we may not be able to ever reach agreement on and meanwhile the small businesses are unfairly suffering. Now I know someday I'm going to hear that I said small businesses are unfairly suffering. They are unfairly suffering because all of us cannot simply set aside whatever it is we had once wished for, and you and I had a long list, and say, OK, let's take what is in hand. Let's do that which we know we can do and then we'll be the good, committed public servants and come back and try and do the rest.
Page 61 PREV PAGE TOP OF DOC Segment 2 Of 2
Mr. BOEHLERT. Let me conclude this on a very positive note.
Mr. BORSKI. Mr. Chairman, I have one more question on my time, if I could?
Mr. BOEHLERT. Sure.
Mr. BORSKI. I would appreciate that very much. So I wanted to make sure that I understood. You would support, if we could get a narrow bill, you're pleased to support it? We could take care of the things we just talked about.
Ms. BROWNER. Yes.
Mr. BORSKI. So for future witnesses, I wanted to ask that as well. I wanted to ask one final question. Has your agency done any estimates on the cost of this bill, H.R. 1300, to the taxpayer?
Ms. BROWNER. We've done a very preliminary estimate. When you look at the kind of exemptions that we believe exist in terms of the larger responsible parties who are bearing their fair share today of clean-up, that would not have to pay their fair share in the future, that shifts it to the taxpayer. It shifts the responsibility. And we would estimate that to be in the several hundreds of millions of dollars, which I might add, not only is it more money to the taxpayer, but it also delays the clean-up because there is a fixed amount of money that Congress has generally been willing to appropriate. And if we have to take some of that money and apply it to sites which are currently being covered by responsible parties, there is a lot fewer sites that are going to get done in any given year.
Mr. BORSKI. Thank you, Madam Administrator.
Ms. BROWNER. Thank you.
Mr. BORSKI. And, Mr. Chairman, I have a copy of a letter from the Department of Justice containing its views on H.R. 1300 and ask unanimous consent that it be put in the record.
Page 62 PREV PAGE TOP OF DOC Segment 2 Of 2
Mr. BOEHLERT. Without objection.
[The information follows:]
[insert here]
Mr. BORSKI. Thank you, Mr. Chairman.
Mr. BOEHLERT. And I have a letter from the Mayors all over our country. Without objection, I'll include that in the record at this point indicating their strong support.
Mr. Sherwood, you have one additional comment, can you make it brief?
[The information follows:]
[Insert here.]
Mr. SHERWOOD. Thank you, Mr. Chairman. I'll be brief. Administrator Browner, I would love to have a conversation with you some time about what I perceive is a change of EPA policy on the combined sewer overflow problem in Lackawanna County. And not today, but we need to do that.
Ms. BROWNER. OK, we will set up a time.
Mr. SHERWOOD. We'll be in touch.
Ms. BROWNER. Yes.
Mr. SHERWOOD. Thank you.
Mr. BOEHLERT. Let me conclude in a very positive note. One, by thanking you, by thanking your time, Tim and Diane and Kevin and Cliff and Seth and all the usual suspects who join you when you come up here before us. We have profited greatly from your testimony. I think it's fair to say that we have general agreement, subject to the nuances and clarification thereof. Thank you very much, Madam Administrator.
Page 63 PREV PAGE TOP OF DOC Segment 2 Of 2
Ms. BROWNER. With all due respect———
Mr. BOEHLERT. Subject to the nuances. Now I did give you that lead.
Ms. BROWNER. There are nuances———
Mr. BOEHLERT. And there are nuances.
Mr. OBERSTAR. Differences.
Ms. BROWNER. —and there are differences. Thank you, Mr. Oberstar.
Mr. BOEHLERT. Well, yes, but you just indicated in response to—I mean in all fairness, you just indicated in response to Mr. Borski that we would accept the bill that dealt with and he just outlined in general form.
Ms. BROWNER. Your bill goes far beyond that.
Mr. BOEHLERT. Well, a whole bunch of things without looking at the nuances of what he is proposing specifically. So I'm determined, and we are determined to move forward. It is the intention of the committee, subject to consultation, obviously, at all times with the Minority, before the August recess, to go forward with the markup. And I think we've waited too long. We've consulted continuously. We will maintain that open dialogue with you and others in the Administration; and we will welcome any clarification that you can show us where this bill has unintended consequences. We would welcome that. We would welcome any observations you might share with us on nuances that concern you. But first and foremost, we are determined to go forward with something that first and foremost protects human health and the environment, gets on with cleaning up our toxic waste sites, recognizes the good work the EPA has done, codifies some of your very productive and positive administrative changes, and addresses in a realistic, fair manner some of your legitimate concerns. And this is not perfect by any stretch of the imagination. You know it and I know it. But we're not going to wait until hell freezes over to do something.
Page 64 PREV PAGE TOP OF DOC Segment 2 Of 2
Ms. BROWNER. Mr. Chairman, I look forward to an invitation from you to sit down and work through our differences. It has not yet happened. No, they're not small. They are not small. More lawsuits, large responsible parties exempted, uncontaminated ground water not protected. Those are not small.
Mr. BOEHLERT. Let me say those are not views that this Chair shares and that a number of people on both sides of this aisle share, and we will not accept that characterization of this bill. There are some improvements that are warranted. We will have open dialogue with you on a continuing basis, but we are proud of the product we have produced. We want to make it better, and we look forward to your input to help us make it better. Thank you very much.
Ms. BROWNER. We are available whenever. Thank you.
Mr. BOEHLERT. First of all, without objection, all members may submit opening statements for the record.
Now on to this next panel from the U.S. Conference of Mayors. We have the Honorable Michael Turner, Mayor of Dayton, Ohio; the Honorable Jim Marshall, Mayor of Macon, Georgia; and we expect shortly to have Mayor Turner and Mayor Marshall joined by Mayor Marc Morial of New Orleans.
Gentlemen, we appreciate the outstanding support that you have given to the bill in question. We value your input. We welcome the dialogue that we've had over these past years, not just months, and we look forward to your testimony.
I will ask Mayor Turner to start first. And thank you very much, Madam Administrator. I will ask Mayor Turner to start first and then Mayor Marshall. And I would assume that by the time Mayor Marshall finishes, Mayor Morial will be here.
Mayor Turner, you're up. Thank you very much.
TESTIMONY OF HON. MICHAEL TURNER, MAYOR, DAYTON, OHIO; HON. JIM MARSHALL, MAYOR, MACON, GEORGIA, AND HON. MARC MORIAL, MAYOR, NEW ORLEANS, LOUISIANA
Page 65 PREV PAGE TOP OF DOC Segment 2 Of 2
Mayor TURNER. Thank you very much, Mr. Chairman. We are pleased to provide you the U.S. Conference of Mayors report on Recycling America's Land, which really gives a picture of the need for relief for American cities for what has been discussed in part as some of the unintended consequences of the Superfund legislation and its creation of brownfields, the resulting urban sprawl, and the loss of our farmlands.
It has been very educational to listen to the discussion that preceded us because I think that some of the distinctions that need to be made that relate to cities were part of that discussion. Certainly cities and Mayors throughout the country are advocates for human health and our environment. We were some of the areas that were first impacted by unregulated pollution and its impact upon our populations. Obviously, this is an issue that can be made very emotional by referring to issues of the impacts of human health and the environment.
However, the unintended consequences while we have advanced our efforts to cleanup the environment has been the abandonment of industrial sites throughout our cities. These abandoned industrial sites today represent the picture of our suburbs tomorrow and the picture of rural America that is yet to come. If the laws are not changed, the decisions that are being made by people who are looking to construct industrial factories in our suburbs or rural America will apply to even the sites that are being operated today and not just ones that are abandoned.
In the Recycling America's Land report, we quantify for you what the impact is on some of America's cities. The report has information from 220 cities, which include 39 States and Puerto Rico. Of the 180 cities surveyed, they identified 19,000 brownfields. They represent more than 178,000 acres of abandoned industrial land. This is equal to the land that is occupied by the cities of Seattle, San Francisco, and Atlanta, which lays idle as a result of some of these current laws.
The U.S. Conference of Mayors asked the Mayors to identify what were the top three things that were impacting our ability to develop these sites. Number one was the need for additional clean-up funds. Number two were the liability issues, some of which you discussed previously. And number three were additional funds to be able to conduct environmental assessments so we could determine what really is the environmental condition of some of the property that we're seeing.
Page 66 PREV PAGE TOP OF DOC Segment 2 Of 2
The U.S. Conference of Mayors report also identifies the potential benefits for developing abandoned industrial sites. About two-thirds of the respondents indicated that there would be local revenue gains through increased taxes that could be applied for education, public safety, and to produce additional jobs if these sites were made productive again. The estimates range between $1 billion to $2.7 billion of additional tax revenues that would enure to our local governments. Of the 115 cities responding, they indicated that they could absorb a population of 3.4 million people, which is roughly the equivalent to Los Angeles, our second largest city, if some of their areas could be developed and encourage populations to return once again to our cities.
In addition to increased taxes and increased population, jobs would be created. Of the 168 cities responding, they indicated that the jobs that would result from the development of their abandoned brownfields areas, 675,000 jobs would be created.
Now Mayor Marshall and myself, both of us are attorneys, I'm a practicing attorney and former real estate attorney. And Mayor Marshall has been a law professor and it's been interesting in listening to the language that is being used concerning the issue of innocent purchaser. Obviously, the U.S. Conference of Mayors in identifying the issue of liability looks at the concept of innocent purchaser as someone who is innocent from having contaminated a property. Administrator Browner, when she was testifying, indicated that her view of innocent is ''someone who does not have a reason or a way to know.''
Well, certainly I can show you and drive you through our city and as you look at abandoned industrial site after abandoned industrial site, you don't have to be an expert and you don't have to be knowledgeable or experienced to know or to have what would be classified as a reason to know that these sites have some contamination. If that is a basis for liability, for creating all liability for what might be found at that site, they will remain forever idle. We will have created monuments to our industrial past. And what is even more frightening is our industrial facilities today are those abandoned industrial monuments of tomorrow. If the law is changed to allow truly innocent landowners, those who did not contaminate the property to be free from liability for the contamination, we can see these sites put back to productive use.
Page 67 PREV PAGE TOP OF DOC Segment 2 Of 2
Thank you.
Mr. BOEHLERT. Thank you very much.
Mayor Marshall?
Mayor MARSHALL. Thank you, Mr. Chairman. I appreciate the opportunity to testify before the committee, and I appreciated Administrator Browner's remarks. And I certainly hope the committee is going to be able to get together with the Administrator and you all can come out with a bill.
We've been stuck with the status quo for too long in my opinion. And I second what Mayor Turner has said. Our cities are becoming monuments to this—well, we're being held hostage in a sense to the desire on one hand to clean these properties and on the other hand to put these properties back into productive use. Macon is a city that is very similar to the cities that you see around the country, and I not only was a law professor who taught property law, but I'm a commercial lawyer representing banks and businesses. It's incredibly difficult to get somebody to come in and redevelop one of these sites. As soon as you start talking about it, they go, ''No, no, no, I'm not even going to think about it because of the liability problems that are associated with this.''
If you can simply cut off the liability for the new user and put the site back into productive use, it means that site and then the adjacent site and the adjacent site and the adjacent site increase in economic value, the entire area increases in economic value, and it's a lot more likely in my opinion that those sites will be cleaned up.
As long as we continue the cycle of abandoning these sites and not really wanting to know what's there, the effect is going to be a steady spiral down and no economic reason to clean the sites up as people spread out and then we cause more environmental problems due to sprawl and then due to the pure social problems of us separating one another, those with the get up and go, getting up and doing just that, leaving.
Page 68 PREV PAGE TOP OF DOC Segment 2 Of 2
There are a couple of things, it's not just the innocent purchaser defense that should be available and expanded dramatically, and it has been by your bill, and we support that, Mr. Chairman, but municipal solid waste. Landfills operated and owned by cities are landfills that typically are old and a prior set of taxpayers caused the problems that exist in those landfills. If the clean-up for those problems is imposed upon the current set of taxpayers, it means that our property taxes and other taxes go up, which means people leave, which means the tax base goes down, which means you've got to raise the taxes even more to deal with this problem.
The problem is largely caused by individuals who are no longer here. They are spread out all across the United States and it seems to me that all across the United States, we can help the centers of our cities deal with these problems. If you impose the cost solely on the city, it's simply going to mean more sprawl and it diminishes the likelihood that those problems are going to be dealt with effectively.
I co-chair the Mayors and Bankers Task Force at the United States Conference of Mayors. We are working closely with the Federal Home Loan Bank system. The banks, I think some 7,000 with about $370 billion in assets, are interested in helping develop home ownership to reclaim America's brownfields lands in its inner cities. It's very difficult for bankers to even think about doing that. If you are motivated by profit and it's easy to go out and do greenfield developments, but difficult to come in and do brownfields developments because of the regulations that currently exist and the threat of liability, you just go ahead and do your greenfield developments.
The committee's bill is bipartisan. I think that the only future for something coming out of this Congress this year, approved by the Administration, is going to be a bipartisan bill. As Mayors, we are not in a position to talk the details of the bill. What we see of the bill, we like. It is heading in the right direction, and we certainly encourage the bipartisan group and you, Mr. Chairman, to work with the Administration and the Administration to work with you to produce a product that can be passed this year so that we can move on to try and address other problems that we have and not just stay stuck on this one.
Page 69 PREV PAGE TOP OF DOC Segment 2 Of 2
And I appreciate the opportunity to appear. I appreciate all the work you have done and the remarks of Administrator Browner.
Mr. BOEHLERT. Thank you very much, Mayor. You know I think we can all agree up here that the Nation's Mayors are on the front-line and you probably have the most difficult job with the greatest challenges of any in elective office from the grassroots right up through the Congress because daily you are right there.
Mayor Morial?
Mayor MORIAL. Yes, good afternoon, Mr. Chairman and Members of the committee. Let me, first, thank the Chairman for including us in this discussion to shape some meaningful legislation around this issue. And we want you to know that our organization and the Mayors we represent today are a bipartisan group of Mayors who represent cities large and small, east and west, north and south, cities old and new. And for about five years, we have been working in earnest on the issue of brownfields.
Let me just cut right to the hunt. We've got an economic recovery in this Nation right now that is sterling, that is outstanding. That economic recovery has touched many Americans, but that economic recovery has not significantly touched other Americans. All one need do is ride through America's cities. You will find old service stations, old industrial sites, old factories, old warehouses, old structures, many with great value, many well located, many with the opportunity to be re-used, re-built, redeveloped to create jobs, to create taxes for our communities, and to create opportunities for our people.
What motivates us today with respect to this legislation is the idea that we cannot afford to sit and wait, debate and let this recovery go by with low interest rates and with strong capital markets and not look at the assets in our cities as opportunities for new investment, both public and private. I can point in my own city to a number of brownfields sites that have been cleaned up. An old fiber factory, an old cotton mill have been re-built and redeveloped. But I can also point to you a number of other sites that for which the developers and the owners need some sort of relief on the liability side, some help with clean-up in order to guide it back into commerce.
Page 70 PREV PAGE TOP OF DOC Segment 2 Of 2
You are right, Mr. Chairman, Mayors have it rough because when I go to a neighborhood meeting in an area where there is an abandoned site, someone says, ''Mayor, do something about that closed service station on the corner. Do something about the old can factory in our neighborhood. You just do something about it. We don't want to hear any reasons why this law or that law is in the way. You all go get it changed.''
So we are here to commend you, Mr. Chairman and all of the Members of the committee, and we appreciated the discussion with Administrator Browner. It reminded me of one of my city council meetings.
[Laughter.]
Which was healthy debate American style. But we know that there are details and issues that you all have to get together on, but we commend you and we would ask perhaps that this report that we have put together be made an official part of the record because we think it illuminates a lot of the issue.
Mr. BOEHLERT. Without objection, so ordered.
Mayor MORIAL. So thank you so much. We appreciate it.
Mr. BOEHLERT. Thank you all very much, and I do appreciate the very valuable input we've had from Mayors across the country in trying to fashion something that responds to a legitimate, identifiable need.
Mayor Marshall, you spoke eloquently on the need for liability relief for municipalities at landfills that become Superfund sites. Is it safe to say that liability at landfills is as important as brownfields for some cities?
Mayor MARSHALL. Well, it certainly is very, very important for the City of Macon. I frankly think if we could recover all of our brownfields sites in the City of Macon, some 1,700 acres, basically under-utilized or unused, and have all of those sites be vibrant, lots of jobs, lots of tax base, we are much better able to deal with the problems associated with our old landfill. So the two are hand in hand.
Page 71 PREV PAGE TOP OF DOC Segment 2 Of 2
But, clearly, the problem with the old landfill is one that if we have to pay for it, assuming that there is a big problem and we don't have one right now, but if we have to pay for it, the money has got to come from someplace and it is going to come from all these folks we are asking to come into the city and build new factories and create new jobs. And if they see the city—if they see the prospect of increased taxes and other costs associated with coming into the city, they are less likely to do so. These things are all interwoven. And this is just one part of the puzzle here. But imposing liability on cities for their old landfills is just one more thing that makes the city less attractive and causes people to be less interested in being in the cities and causes those folks to move out.
And when you think about who caused the problem for the most part, it wasn't that set of taxpayers. We are so mobile in this society. I can give you the figures. You all probably know them. But, what, 25 percent of our population moves every year? And when you think about the mobility of the society and how quickly businesses roll over those sorts of things, the current group of taxpayers and future taxpayers that would be asked to pay for this problem weren't the ones that created the problem.
Mr. BOEHLERT. Mayor, the President yesterday was down in your neck of the woods, I believe it was Atlanta.
Mayor MARSHALL. Atlanta.
Mr. BOEHLERT. And he spoke with some passion about the need to—and he challenged people about the need to— revitalize areas of distress, most of which are found in our inner-cities. This committee has accepted that challenge long before it was issued and that's why we have worked so closely with the U.S. Conference of Mayors because there are 450,000 of those brownfields in Macon, in Dayton, in New Orleans, all over the country that need to be redeveloped, but before the business people, before the owners come forward, they wanted some certainty.
Page 72 PREV PAGE TOP OF DOC Segment 2 Of 2
So let me ask Mayor Turner and Mayor Morial to respond to this, do you think the owners of these brownfields need certainty to do deals, certainty that they won't be second-guessed by EPA, certainty so they can come in with some assurance that they didn't contribute to any problem and they want to redevelop the site, but they are afraid to go forward because they don't know what might happen in the future so we are trying to provide some certainty for them against future liability.
Mayor Turner?
Mayor TURNER. Well, I don't have to speculate in answering, having practiced real estate law for 10 years. I can tell you I sat around the table many times with those individuals that you talked about where there would be a site that has suspected contamination and there would be a site that was greenfield and overwhelmingly no one is willing to take the risk on a brownfields site on liability that is under determined, unquantifiable, and where there is a site available that would have no risk.
Clearly, the sentence we have here in Ms. Browner's report that, ''In some cases, these may be the only parties available to conduct clean-ups,'' rings throughout the country while people know that if they are the only parties available to conduct clean-ups, the only remedy that they have is to make certain they are not one of those people that is in that position to have to conduct one of those clean-ups if they are not responsible for the contamination themselves. So certainly that is the detraction.
Mr. BOEHLERT. Mayor Morial?
Mayor MORIAL. Yes, Mr. Chairman, I can give you a real example of an old incinerating facility, which is located in the central city part of New Orleans, was identified in our brownfields survey of 1995 as a brownfields site. A community-based group well-known with national affiliations wanted to take that site and build brand-new low and moderate income housing. Because of the uncertainty with respect to liability, that deal did not happen. And that was a deal where the city was prepared to invest its own HOME and CDBG dollars. It was a deal where a willing community group and a bank would marry themselves and step forward and do this deal to create jobs and housing for people in our city. Because of the questions with respect to liability, Mr. Chairman, that deal did not happen.
Page 73 PREV PAGE TOP OF DOC Segment 2 Of 2
Mr. BOEHLERT. Thank you very much. And that is a very good illustration. There are so many deals with great potential that don't happen because of the concern about future liability.
Thank you very much, Mayor Morial. Mr. Borski?
Mr. BORSKI. Thank you, Mr. Chairman. I represent the City of Philadelphia and our Mayor, Ed Rendell, is I think one of the best Mayors in the country, if you don't mind. And we still have in the City of Philadelphia, despite having a great Mayor, probably the best in history, and, again, a great guy, we still have a major problem in the City of Philadelphia. We are still losing population even though we have someone who arguably has been called the greatest Mayor we have ever had, and part of it I think is because people are chasing the jobs. The new developments are in greenfields. They are in the open space. They are not taking place in brownfields in the cities, and so I don't think there is any argument that we need brownfields legislation.
My question to you would be, and you sat through the earlier discussions with the Administrator, if we are unable to come to an agreement on a comprehensive Superfund report, shouldn't we pass a narrowly defined brownfields piece of legislation that would give you the relief that you want to have? I can't imagine you would object to that.
Mayor TURNER. Well, it depends on how narrow that you go. If you go to the narrow definition that the Administrator talked about, which is the definition of innocent being reason or a way to know of likely contamination, you haven't changed anything from the current situation. You will have limited success. You will have huge Government intervention and investment in order to have any success. If you actually create an innocent purchaser defense where innocent means ''I didn't contaminate it,'' then you are going to have a explosion of capital attracted to cities because these sites are attractive.
Let me give you an example. If we take a 10 acre site in our city, and we do an environmental assessment. And we have determined that there is a certain quantity of contamination and let's say it is going to take a half million dollars in our opinion to clean it up. There still isn't any certainty for that purchaser that that is it. Even if we say we will put up that half a million, and we do that environmental remediation, and they buy it and they build their new industrial facility, a week later, two weeks later, it could be determined that in fact this is, as was referred to before, this could be Love Canal and suddenly they now have the liability for the entire facility that they didn't contaminate and that they took the risk of going on. Unless that can be quantified, unless it can be determined what their actual liability is going to be, they will continue to go elsewhere and that stands for the factories that we have that are operating today.
Page 74 PREV PAGE TOP OF DOC Segment 2 Of 2
Mayor MARSHALL. Mr. Borski, if I could?
Mr. BORSKI. Sure, Mayor?
Mayor MARSHALL. Take a piece of property that is anywhere in the United States in a city and it is sitting there vacant, there is a good chance that the owner of that property is aware in the sense of know history of the property that the property has contamination problems, but the owner is not going to do a phase 1 or a phase 2 environmental inspection, find out what the contamination is and let EPD, EPA, whoever it is, know, as the owner is required to do under the law once they know. So they prefer in many instances to simply walk away from the property, fence it and leave it. And so we have a lot of properties that are stuck in that kind of a status quo. How do you get them out of that status quo? Well, one way to do that is to try to make the properties so attractive economically that people are pushing the owner to sell. In many instances, owners still are not going to sell. They are not going to be interested in finding out what the problem is because they know they are going to be liable for cleaning it up. The innocent purchaser defense that is in the Boehlert bill that we support, we think is a good idea, isn't going to solve that problem.
That the purchaser has protection still leaves the problem with the owner being unwilling to sell because the owner doesn't want to find out about the problem and then subsequently be held liable for the problem and that is a major issue in many of these instances and it would be nice if whatever bill comes out, that bill could somehow try to address that issue.
My impression is this, and I'm not a great expert in this area, but my impression is this: It is hoped by EPA and others that the economics associated with a particular parcel of land will be such that the person coming in and the person currently owning it will somehow reach a deal and clean it up. That this is the opportunity, it is when the transaction occurs. It is let's hold hostage the transaction to ensure that the land gets cleaned up. And if the purchaser isn't going to be forced to clean it up because they are going to be deemed innocent, then nobody may clean this land up and then the taxpayer might be stuck. Well, we certainly don't want to stick the taxpayers, but I am afraid that the status quo means that these lands are going to continue to lay fallow and in cities like Macon, they are not going to get more economically valuable. It is just not going to happen.
Page 75 PREV PAGE TOP OF DOC Segment 2 Of 2
Mr. BORSKI. Yes, I guess my question was in a different sense, however. My question is and, again, you heard what the Administrator was saying, if we can't come to an accord and pass a comprehensive Superfund bill, should we pass a stand-alone brownfields bill that will give you the relief you need? My sense is that brownfields are being held hostage to the overall comprehensive reform. If we can't get that done, even though our all great intentions, would you be supportive of a stand-alone brownfields bill?
Mayor MARSHALL. I think the position paper that the U.S. Conference of Mayors has submitted details the things that we think are very positive in the Boehlert bill. Whether it is the Boehlert bill or the Borski bill or some other bill, whether it is called comprehensive reform or brownfields bill, I don't know that that matters to the Conference. I think from a practical perspective, a bipartisan approach to this is absolutely necessary and the only bipartisan approach we have seen in the last couple of years is represented by the Boehlert bill.
So we would ask the Administration to work with the Boehlert bill to see whether or not that bill can't be fine-tuned in a way that would be satisfactory to the Administration. Obviously, we are in the position of having to say if we can't get everything we would like, we will take what we can get because the current status quo is simply unacceptable. It really places one heck of a burden on cities.
Mr. BOEHLERT. Thank you very much, Mayor Marshall.
Mr. BORSKI. Mr. Turner? May I, Mr. Chairman?
Mr. BOEHLERT. Do you want to respond to that?
Mayor TURNER. Certainly. I think that it really depends on what you mean by brownfields though. In the discussion that was occurring this morning, the identification of what is an innocent purchaser defense seemed to be part of the chasm that exists in what bill should go forward. Brownfields reform, for it to be effective, is going to have to have an innocent purchaser defense where if you didn't pollute it, you are not liable for it. And the definitions that we were hearing this morning did not follow that.
Page 76 PREV PAGE TOP OF DOC Segment 2 Of 2
Mr. BORSKI. But if we had that, if we had prospective purchaser, you would be for a stand-alone bill if we couldn't get comprehensive through that took care of that———
Mr. BOEHLERT. Well, obviously they would want to see the bill. But the fact of the matter is if I———
Mr. BORSKI. I have a bill I would recommend to you, H.R. 1750. We will send you a copy.
Mr. BOEHLERT. They will be glad to look at it. I would hope that you would share it with the U.S. Conference of Mayors as we have for all these years.
Mr. BORSKI. Good. By all means.
Mr. BOEHLERT. Let me point out that it is well beyond—it is not a choice of comprehensive reform or more targeted specific reform, we passed that debate long ago. We are not going forward with comprehensive Superfund reform. We are going forward with H.R. 1300, which has earned the support of Mayors from across the country and a whole wide range of organizations with narrowly, specifically targeted reforms. Comprehensive is off the table. I would prefer more comprehensive reform, but we are narrow, we are specific, we are addressing legitimate concerns, and we have done so in a bipartisan manner, which has earned the support of the organization you represent.
But I can tell Mr. Borski from my experience working with the Conference of Mayors, you are always receptive to any proposal that is advanced that addresses your legitimately identified problem. So thank you very much.
Mr. BORSKI. Mr. Chairman, my question to the Mayors was not if—obviously they support this bill of yours and they are free to do that and should be, my question is if that is not doable. They were here, they heard the Administrator today. There are more than small problems with the bill. The question really is can we do, if we can't do 1300, can we do a brownfields specific stand-alone bill and would that be helpful or not?
Page 77 PREV PAGE TOP OF DOC Segment 2 Of 2
Mr. BORSKI. We could wait another couple Congresses before you get something else through.
Mayor TURNER. Right. I think Mayor Marshall was saying that our goal is that there be a bill that is successful and that passes and the bill that we came to testify for has bipartisan support. The possibility in the future of a limited brownfields bill is something that it sounds like the Administration from Administrator Browner that they oppose also. And that really is the issue that we are here to support that is in Boehlert's bill.
Mr. BOEHLERT. Thank you very much. I appreciate that.
Mr. BORSKI. The Administrator has suggested she would sign 1750 into law, which would give the brownfields relief.
Mr. BOEHLERT. She would sign it to law?
[Laughter.]
Last time I checked, there was somebody at 1600 Pennsylvania that signs it.
Mr. Sherwood, it is a pleasure to recognize you?
Mr. SHERWOOD. Thank you, Mr. Chairman. And the testimony of the Mayors here today has been most interesting to me, and I thank you for coming because I think you have synthesized for us or brought together a big problem we are all grappling with and it is the relationship of development of greenfields or brownfields. And what you are telling us is if we can't get an innocent purchaser defense, the pressure will be to continue to develop greenfields. So we lose our farmland. We lose our timberland. We lose our view. And all the things that we don't want to lose.
And we can't bring the industrial development and the real estate prosperity back into our central cities where the infrastructure is already there. We don't have to rebuild it. We don't have to build it to start with. It is there. So I just want to bring that out. It seems so obvious to me. But do you feel that if we can do that and sort of get a clean bill of health after some remediation is being done for a purchaser that then you will have this activity back in your cities?
Page 78 PREV PAGE TOP OF DOC Segment 2 Of 2
Mayor TURNER. Absolutely. We are approached daily and weekly from developers who have interests in properties in our city that have the financial wherewithal, the capital, and the businesses that will produce jobs only to have the deals and transactions fall through the cracks as a result of an inability to provide them the assurances that if they acquire land that is currently abandoned and develop it, that they would not be subject to liability for contamination that they did not create.
Mayor MARSHALL. Mr. Sherwood, I think it is a puzzle and this is one piece of the puzzle. There are a lot of factors in our society that push greenfield development over brownfields redevelopment and if you don't take each little step that you can in order to reverse that trend, simply because there exists all kinds of other steps that must be taken, it means you will take no steps and nothing will get done.
This is an opportunity to take a step in the right direction. Is it going to solve the entire problem for a city like Macon? Of course not. It is not going to do that. But it heads us in the right direction and it is a giant step, it is not a baby step.
Mr. SHERWOOD. But your testimony mirrors almost exactly the input that I get from Austin Burke, the head of the Stranton Chamber of Commerce, that if he tries to sell a brownfields as a opposed to a greenfield, it is no contest.
Mayor MARSHALL. That's true.
Mr. SHERWOOD. And, therefore, we have to remove the restrictions on the brownfields so that we can re-use that industrial property.
Mayor MARSHALL. Absolutely.
Mr. SHERWOOD. Thank you very much.
Mr. BOEHLERT. Thank you very much, Mayor Marshall, Mayor Turner. I want to thank you both very much. And we will do the best we can to try to help you and to try to help the President accept the challenge of redeveloping our cities and creating more job opportunities where they are needed most in your cities in Dayton and Macon and New Orleans. So we are partners for progress in this effort. Thank you once again.
Page 79 PREV PAGE TOP OF DOC Segment 2 Of 2
Mayor TURNER. Thank you for having us.
Mayor MARSHALL. Thank you, Mr. Chairman.
Mr. BOEHLERT. Our next panel consists of Mr. Stanley Diver, Vice President, Diver Chevrolet of Wilmington, Delaware. He is the spokesperson for the National Automobile Dealers Association, which has endorsed H.R. 1300. Mr. Thomas Sullivan, regulatory policy counsel from the National Federation of Independent Business, with whom we have worked closely, and they strongly endorse this bill, H.R. 1300. Mr. Michael Steinberg, Morgan Lewis & Bockius, Superfund Settlements Project; and Mr. Bernard J. Reilly, Corporate Counsel for DuPont De Nemours, a Chemical Manufacturers Association representative; and finally Velma Smith, Executive Director of Friends of the Earth. And she is making her way to the table.
We will go in the order of introduction. First, Mr. Diver from the National Automobile Dealers Association. Mr. Diver?
And in each instance, we would ask that you try to hold your testimony to no more than five minutes. Your full statement will appear in its entirety in the record at this point, but as you can see, we are trying to get on with the proceedings.
And the other thing is—and I always do this and I see some veterans here at the table—you've been before these subcommittees and full committees before, I always have to apologize because it would appear that you have two Members, three Members of Congress here, and what is all the interest in this bill for? The fact of the matter is there are other hearings going on at this very minute. The House is considering very important legislation dealing with the Y2K problem. Members aren't sitting around someplace twiddling their thumbs. They are off and doing other things. But we are vitally interested in your testimony and that will be shared with all of our colleagues. And, quite honestly, if the truth be known, we have the most important ingredients in this overall formula right here, the professional staff on both sides of the aisle.
Page 80 PREV PAGE TOP OF DOC Segment 2 Of 2
So with that preamble, Mr. Diver, the floor is yours?
TESTIMONY OF STANLEY M. DIVER, VICE PRESIDENT AND DEALER OPERATOR, DIVER CHEVROLET, WILMINGTON, DELAWARE, ON BEHALF OF THE NATIONAL AUTOMOBILE DEALERS ASSOCIATION; THOMAS M. SULLIVAN, REGULATORY POLICY COUNSEL, NATIONAL FEDERATION OF INDEPENDENT BUSINESS, WASHINGTON, D.C.; MICHAEL W. STEINBERG, MORGAN LEWIS & BOCKIUS, WASHINGTON, D.C., ON BEHALF OF THE SUPERFUND SETTLEMENTS PROJECT; BERNARD J. REILLY, CORPORATE COUNSEL, DUPONT COMPANY, WILMINGTON, DELAWARE, ON BEHALF OF THE CHEMICAL MANUFACTURERS ASSOCIATION; AND VELMA SMITH, EXECUTIVE DIRECTOR, FRIENDS OF THE EARTH, WASHINGTON, D.C.
Mr. DIVER. Mr. Chairman and members of the subcommittee, my name is Stanley Diver and I am Vice President of Diver Chevrolet in Wilmington, Delaware. On behalf of the National Automobile Dealers Association, our dealership, and our employees, I would like to thank you for the opportunity to testify today on the negative impact of the flawed Superfund program on small contributors.
At the present time, my dealership is mired in litigation at the Berks Superfund Site in Douglassville, Pennsylvania. In 1991, the Federal Government commenced a lawsuit against a number of major waste generators alleging violations of the Superfund law at the Berks site, which operated as an oil and solvent recycling facility from the 1930's until 1985. In turn, these major waste generators sued several hundred small or potentially responsible parties, and we were one of the many dealers named as a PRP.
Diver Chevrolet, like most dealerships, is identified as a contributor by the testimony of a former truck driver who transported used oil to the Berks site. Based almost entirely on his personal recollection, he estimated the time period which he believed he had picked up used oil, as well as the amount that he collected.
Page 81 PREV PAGE TOP OF DOC Segment 2 Of 2
Our alleged contribution was initially set up at 81,000 gallons during the period of 1965 to 1980. After carefully analyzing our dealership's records and compiling affidavits of former employees, we demonstrated that the amount of used oil allocated to the dealership was impossible. Based on our storage capacity in earlier years and the fact that the allocated quantity far exceeded the amount of used oil generated by the dealership. Despite our diligent efforts, this detailed analysis was entirely outweighed in the process by the truck driver's vague recollection and a few handwritten notes from only one of the 15 years during which used oil was allegedly collected from the dealership.
Due to our analysis, the amount was later reduced to under 69,000 gallons, but this amount is still clearly excessive and impossible. The rules of evidence used in this process were anything but fair. Our contribution to the site was based on questionable evidence and extrapolation. Because of this process, we were left with having to prove a negative to reduce our liability and, of course, it is just about impossible to meet that burden of proof.
As a result, we have been assessed an astounding liability of more than $168,000 based on our alleged contribution. Since the dealership was in compliance with the law at the time the used oil was collected for recycling, I am utterly amazed at the guilt that has been applied to my company's well-intended actions. It is especially galling given the fact that we sent the used oil to be recycled and relied on authorized used oil handlers.
Unfortunately, our case is not at all unique. In the vast majority of cases in which automobile dealers have been designated as parties to Superfund sites, liability has been based on efforts to recycle rather than dump used oil. What seemed to be an environmentally responsible act has turned out to be a costly nightmare. While it is my nature to stand and fight for what is right, I have had no choice but to recommend to my fellow family owners that we accept any settlement offer. What choice do we have, as the cost of litigation would be exorbitant and the disclosure of an open-ended, several liability of this magnitude would overwhelm our year-end financial statement? However, this settlement is a huge burden as the costs cannot be passed along in any way and so it comes out of the wallets of the Diver family.
Page 82 PREV PAGE TOP OF DOC Segment 2 Of 2
The legislation you have sponsored is a major step toward providing liability relief for those who sent their used oil to be recycled. As I understand it, you bill includes two provisions that address the concerns of many small contributors regarding used oil recycling. First, it would eliminate liability prospectively for those persons who arrange for the recycling of used oil. More importantly, it expands the protections under current law for service station dealers to include used oil collected for recycling in earlier years from vehicle oil changes and from ''do-it-yourselfers.''
In closing, I would like to emphasize that like many dealers, we sent our used oil to a legitimate recycling facility. It was stored in compliance with all applicable regulations in effect at the time. It was not mixed with any hazardous substances, and it was transported by a legitimate waste hauler to a licensed facility established to recycle used oil into a reusable resource.
Quite frankly, I don't know what steps our dealership could have taken to be more environmentally responsible. That is why I strongly urge the subcommittee to support the bipartisan Boehlert-Rahall bill and thereby relieve the burden of liability that has been imposed on those persons who sent their used oil to recycling facilities. Doing so would not only restore equity to the Superfund program, but would also prevent innocent parties from being penalized for acting responsibly. Please don't allow the law to continue punishing people who weren't negligent in any way, and who made sincere efforts to act in an environmentally responsible manner.
Thank you again for the opportunity to express my views.
Mr. SHERWOOD. [presiding] Thank you very much, Mr. Diver.
Mr. Sullivan?
Mr. SULLIVAN. Mr. Chairman and Members of the subcommittee, thank you for the opportunity to testify this afternoon on the urgent need for small business liability relief in Superfund reform legislation.
Page 83 PREV PAGE TOP OF DOC Segment 2 Of 2
My name is Tom Sullivan. I am regulatory policy counsel for the National Federation of Independent Business. With the Chairman's permission, I would ask that my full statement be submitted into the record?
Mr. SHERWOOD. Without objection.
Mr. SULLIVAN. Many of you are familiar with Barbara Williams, one of our small business members who testified before this subcommittee in October of 1997 and has testified in both the House and the Senate on how her restaurant was unfairly dragged into the Superfund system for disposing of food scraps. This subcommittee started your Superfund hearing in 1997 by showing a Mike Wallace interview with Barbara Williams that aired on 60 Minutes. It highlighted Barbara's unfair and terrible experience on how the Superfund law can treat small business.
Even this morning, Administrator Browner cited the Barbara Williams scenario as an unintended consequence of the Superfund law. The real tragedy is that in October 1997, there were over 200 similar landfill Superfund sites. These continue to happen. In particular, in a small town called Quincy, Illinois.
Less than four months ago, over 160 small businesses, individuals, and school districts in Quincy received a letter from EPA stating that they may be liable for the clean-up of their local landfill. This landfill received waste from 1967 to 1978 and was listed as a Superfund site nine years ago. EPA requested that the small business owners pay over $3 million for legally disposing of their trash over 20 years ago. Two weeks ago, 31 of those small business owners chose to accept EPA's settlement offer in the hopes that the nightmare would end for them.
But more questions remain than were put to rest. Why were small business owners forced to pay millions for legally disposing of their waste 20 years ago? Why did Superfund, a law designed to address the serious problems of hazardous waste, cast its net over small business owners like Barbara Williams or like Mac Bennett in Quincy who owns Roy Bennett's Furniture and disposed of old couches? And Greg Shierling who owns a McDonald's in Quincy, and I might add that is truly a small business. McDonald's in Quincy has engaged its state-of-the-art recycling and disposal practices since Greg's parents opened the restaurant in 1964. Clearly, Mr. Chairman, Members of the subcommittee, the Superfund law must be fixed.
Page 84 PREV PAGE TOP OF DOC Segment 2 Of 2
At the 1997 October subcommittee hearing and, indeed, again this morning, Administrator Browner stated that 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. Now that same scenario that was described in '97 is repeating itself in Quincy, Illinois.
I went to Quincy a few weeks ago to help our members (there are 30 NFIB members that are caught up in the Superfund situation) and other small business owners understand the law and explain why they are being dragged into the Superfund system. These people are the same as the small business owners in your community. Despite their concerns, their legitimate concerns about losing their business, losing their employees, their reputation in the community, they were concerned about small businesses that may be caught up in this system in the future. They all said the same thing to me: ''Go back to Washington and fix this law so that it doesn't happen to anyone else.''
Mr. Chairman, we believe that the time for Superfund reform is now. We cannot afford to wait for more examples of injustice to prompt us to take action. Virtually all sides in the debate agree that some small businesses should never have been pulled into this system. The reforms contained in H.R. 1300, this committee's bipartisan bill, Recycle America's Land Act of 1999, will cure many of the problems associated with Superfund. Most importantly, it gives immediate relief to small businesses and directs the money otherwise used to drag small businesses into court towards more appropriately cleaning up the toxic waste sites.
We will continue to work with this subcommittee and all Members of Congress who are committed to providing immediate Superfund relief for small businesses that have been under the cloud of misplaced liability for too long.
I thank the subcommittee for its attention and would be happy to answer any questions.
Mr. SHERWOOD. Thank you very much, Mr. Sullivan. This committee is very glad to hear the testimony of the National Federation of Independent Business and the National Automobile Dealers Association, Mr. Diver.
Page 85 PREV PAGE TOP OF DOC Segment 2 Of 2
Mr. Steinberg of Morgan Lewis & Bockius?
Mr. STEINBERG. Thank you, Mr. Chairman. I am pleased to be here this afternoon on behalf of the Superfund Settlements Project, a non-partisan industry group founded in 1987. As the Project's name suggests, our primary interest lies in finding ways to encourage settlements, reduce litigation, and minimize transaction costs at Superfund sites. To give you an idea of our commitment to the settlement process, our 10 member companies have collectively paid out well over a billion dollars in site studies and clean-up costs to date.
In reviewing H.R. 1300, Mr. Chairman, we have focused principally on the liability allocation provisions in section 311 of the bill. We believe those provisions are carefully drafted and would strengthen the Superfund program, and for that reason, we support their enactment.
What I would like to do this afternoon is to describe the problem with the current law that those provisions seek to address, the ways in which they solve that problem, and then I would like to respond to some of the concerns raised by Administrator Browner during her testimony earlier this morning.
The fundamental statutory problem that section 311 tries to address is the misuse of joint and several liability to target a small number of companies at a particular Superfund site. This starts the spiral of contribution litigation that we have heard so much about during this hearing and during previous hearings. I wish I could agree that this problem is on its way to being solved. It is not.
When I testified before this subcommittee two years ago, I described a site in Texas that has extremely high clean-up costs and a very large orphan share. Well, the litigation at that site has gone on these two years because the parties at that site have no way to obtain an allocation and have no way to reach closure with EPA, given their disagreements about the size of the orphan share. And so the litigation continues unabated. That is the cost of leaving this program unchanged.
Page 86 PREV PAGE TOP OF DOC Segment 2 Of 2
EPA, to its credit, has expressed support for the concept of orphan share funding and has even adopted an administrative reform that goes by that name. Again, as I pointed out when I testified here in March of 1997, EPA's orphan share funding reform stops far short of the principles embodied in H.R. 1300 and in predecessor bills, the kind of legislative reform that has become mainstream thinking for several Congresses now. In fact, EPA's recent interpretation of its own administrative reform has made it even narrower than when it was first introduced in 1995.
H.R. 1300 does four principal things to cure this problem. First, it calls for a neutral allocator to decide the size of the share to be paid by the Trust Fund. Second, it recognizes the Trust Fund should pay not only the orphan share but the shares of those parties whose liability is eliminated or capped by other provisions in the bill. Third, it requires EPA to accept settlement offers from PRPs based on the allocator's decision. And, fourth, it requires reimbursement for parties who perform clean-up work under unilateral orders instead of consent decrees, ending the current unfair treatment of those parties under current law.
Each of those four steps is a major advance over where we are now. Each goes well beyond EPA's administrative reform and would finally help put an end to the spiral of contribution litigation that has been clogging the Federal courts for years now.
We heard several concerns during Administrator Browner's testimony about how these allocation provisions would work, and I would like to speak to those. I think the principal concern we heard was that H.R. 1300 requires EPA to sue first before approaching parties to discuss settlement. I must say I was puzzled to hear that, because that is not how I read the language in the bill. Page 127, for example, of the bill specifically recognizes that any party may resolve its liability to the United States at any time. So the ability of the United States to enter into settlement discussions with one or more parties before or during or after the allocation is expressly preserved in the bill.
Page 87 PREV PAGE TOP OF DOC Segment 2 Of 2
Second, at page 115, the bill calls for a virtually automatic stay of the litigation as soon as it is filed by the Government. So the Government would go to court, file a complaint and the case would then be stayed immediately except in extraordinary circumstances. That is really no different than what happens today when EPA reaches a settlement. In order to lodge a consent decree, the court needs a complaint to give it a case to settle. And so EPA files a complaint and a consent decree essentially simultaneously. The filing of the complaint itself does not lead to discovery or to other adversarial consequences.
The second major concern we heard from Administrator Browner was that H.R. 1300 would somehow drag into the process the Barbara Williamses, the little parties who don't belong there. And, again, I was puzzled to hear that. That is not how I read the bill. Pages 119–20 make it clear that the allocator isn't even allowed to assign shares to small businesses that send municipal solid waste to these sites. So I don't understand why we would have those parties dragged into allocation proceedings when the bill says that the allocator can't assign any share to those parties.
The other concern was that they would be required to provide information. And, again, the bill doesn't specify information gathering authority. There is no indication in the bill that small businesses that sent only MSW would be required to provide information to the allocator. So it seems to me those concerns may be somewhat overstated.
In sum, from the Project's standpoint, assigning a neutral allocator to make these decisions and recognizing the need for orphan share funding and funding the shares of exempt parties will make this program truly faster and fairer and more efficient and that means making it a more successful program.
Thank you.
Mr. SHERWOOD. Thank you, Mr. Steinberg. Can we have a copy of your testimony for the record?
Page 88 PREV PAGE TOP OF DOC Segment 2 Of 2
Mr. STEINBERG. Yes, sir.
Mr. SHERWOOD. We will enter it, without objection.
Mr. Reilly of the Chemical Manufacturers Association?
Mr. REILLY. Good afternoon, Mr. Chairman, and Members of the subcommittee. My name is Bernie Reilly with DuPont. I am here representing the Chemical Manufacturers Association.
CMA has worked on Superfund reform since the early 1900's—1990's.
[Laughter.]
It feels that way, sorry. H.R. 1300———
Mr. SHERWOOD. Mr. Borski says it only seems like since the 1900's.
Mr. REILLY. I can relate. H.R. 1300, America's Land Recycling Act, falls short of what many of us would like to see in terms of Superfund reform, but it definitely moves in the right direction. In fact, we wish to commend you, Mr. Chairman, and Members of the subcommittee, for continuing leadership in seeking to make Superfund work better, faster, and more fair. The strong bipartisan support for the bill indicates we can achieve these goals.
The evidence is mounting that after 17 years of existence, there is more of Superfund behind us than there is ahead of us. CMA believes H.R. 1300 builds upon what we have learned and can be the vehicle for this Congress to finally move forward with fundamental reform.
H.R. 1300 addresses many of CMA's key reform principles, some of which I would like to highlight. First, it tailors the resources to meet Superfund needs. Building a smart Superfund is CMA's highest priority. I think we understand from EPA's testimony that the backlog of sites is largely behind us and, indeed, we are toward the end of the Superfund pipeline. Yet, despite this progress, concerns have been raised about the funding required for cleaning up the remaining sites and the President's budget calls for a full reinstatement of the taxes at previous levels.
Page 89 PREV PAGE TOP OF DOC Segment 2 Of 2
CMA seriously questions whether that level of funding is justified to complete the job at hand. In fact, CMA believes that program funding could be dramatically reduced while still achieving the goals of the statute. Any excess funding in the Superfund budget we would caution could lead the program to expanding beyond its core mission to simply use available dollars.
Congress should take steps, as detailed in my testimony, to ensure that there is a reasonable relationship between expenditures to complete the Superfund sites on the national priority list and revenues collected for that purpose.
As to brownfields, we believe H.R. 1300 does encourage brownfields redevelopment. But we believe that Congress should establish a HUD revolving loan fund, paid for out of the HUD general revenues to encourage brownfields development. On other brownfields issues, we believe that targeted Superfund liability relief also should be provided for purchasers, innocent landowners, and to current landowners that ensure that there is clean-up prior to transferring land. We also believe that the Superfund liability cloud should not hinder State brownfields programs as it does today. A number of these issues are addressed in H.R. 1300.
We believe as to the liability scheme, that a streamlined process, outlined by Mr. Steinberg, and administered by a third-party neutral should be established to allocate future clean-up costs and that the orphan share should be paid by the fund. In that process and in the name of fairness, the shares belonging to any parties for whom liability is either decreased or extinguished must not be transferred directly or indirectly to the other parties. Any exemption should be funded out of general revenues rather than paying for these exempt party shares from the remaining PRPs at the site or from the trust fund, which generally is based on industry taxes.
On the issue of natural resource damages, we believe that the proper focus of the National Resource Damage Program should be the restoration of injured or lost resources and not surplus damages. Restoration should complement the work performed through remediation. Further, Federal facilities and private sites should be subject to identical NRD responsibilities. CMA believes that NRD reform is needed and should be more fully addressed in H.R. 1300.
Page 90 PREV PAGE TOP OF DOC Segment 2 Of 2
On remedy selection, H.R. 1300 facilitates better and quicker remedial actions by requiring that remedy decisions to focus on actual and reasonably anticipated rather than hypothetical exposures and scientifically sound risk assessment principles. Further, it would allow for the use of institutional controls that reduce risks and would remove the prescriptive mandate for remedies to conform to inapplicable but potentially relevant and appropriate requirements.
And, frankly, we are a bit confused with the way the Administrator this morning characterized H.R. 1300 as allowing bottled water at sites. That is not the way we read the point of use on brown water issue. In fact, in many respects, H.R. 1300 remedy selections reflects what EPA is doing today when it picks remedies.
In conclusion, CMA supports the strong bipartisan process begun Chairman Boehlert and the other 53 Republican and Democratic sponsors with the introduction of the Recycle America's Land Act, H.R. 1300. More work is needed, but we at CMA strongly believe this bill represents a strong vehicle to accomplish that result. We look forward to working with you and would be happy to answer any questions that you may have.
Mr. SHERWOOD. Thank you very much, Mr. Reilly. I just can't believe that you think that the Federal Government should be held to the same standard as the rest of the world.
Velma Smith of the Friends of the Earth, please?
Ms. SMITH. Thank you, Mr. Chairman. I have a brief written statement that I would ask to be placed in the record along with written materials by my colleagues at the Environmental Defense Fund and U.S. Public Interest Research Group.
Mr. SHERWOOD. Without objection.
Ms. SMITH. Thank you. I would like to start by thanking the staff for their diligent and hard work, their fortitude in working on this since the 1900's or seems like 1900's. It truly has been a tough job, and I don't envy them that. I also want to thank the Chairman for not including an extensive section on the natural resource damage. I think that that is an important step there. I thank you, as a veteran of this, in some areas making this a little bit sparer bill than previous bills.
Page 91 PREV PAGE TOP OF DOC Segment 2 Of 2
But with those things aside and recognizing that effort, I still have some major problems with this legislation. In our view, H.R. 1300 changes—there are two critical provisions. There are the titles that deal with who pays and the title that deals with how clean is clean. And in those critical areas, it is our view that H.R. 1300 does great harm.
Now, though I have done it before, I don't really relish being the skunk at the picnic, but be that as it may. I want to make it clear that we cannot in any way endorse this legislation. In fact, we can't do—when you have worked through negotiations, you get used to, while not endorsing, can you swallow hard and be quiet? And I am afraid in this instance, I can't choose to do that either. We must vigorously and loudly oppose it. And on this point, I speak for not only Friends of the Earth, but also my colleagues at Environmental Defense Fund and U.S. Public Interest Research Group.
In our view, H.R. 1300 is a bad Superfund reauthorization, not for want of trying. It will disrupt the pace of the clean-up program. It will invite more, not less, legal wrangling. It will place the financial interest of polluting companies above the future options of contaminated communities. It will stifle rather than nurture the important advances in ground water science and remediation technology that the Superfund program has fostered to date.
I know that these are harsh criticisms, and I am sure it is exasperating to hear them, but let me explain a bit about why I feel the need to be so blunt. To do that, I would ask you to think back to the beginning of the reauthorization journey. And at that time, a lot of expectations had been raised for Superfund. People expected a lot of Superfund, and they expected speedy clean-ups. Some 10 years into the program, that wasn't happening. So we came to the time for reauthorization amidst very harsh criticism.
By 1993, Superfund site neighbors had grown widely frustrated and impatient with lack of progress and major corporations, as you know, had done a remarkable job of discrediting the program using, or abusing I should say, the third-party contribution suits to go after small businesses, the Girl Scouts, and local governments.
Page 92 PREV PAGE TOP OF DOC Segment 2 Of 2
A good deal of the criticism at the time, in my view, consisted of hyperbole and pretty outrageous exaggeration. EPA was not requiring return of old rail yards to pristine conditions. They weren't requiring ''pump and treat'' at every groundwater contamination site, and they weren't taking old mine sites and requiring that soil be cleaned up so that children could dine on the dirt.
During those early days of reauthorization, I sat before this committee and other committees and tried to remind them that the Superfund program was doing some positive things, it felt pretty lonely at the time. But even then, the program was not living up to its expectations. It needed new energies and attention. It needed repair.
So Congress moved on a reauthorization effort that is now six plus years long. And for six plus years, I think we have been in kind of a fog frustration with this program and even furor over it. And in that furor we have had dozens of drafts circulated, and those of us who are veterans have really immersed ourselves in all these drafts.
Now, I ask you for today, just step for a moment, step back, step away from those drafts, and think about a fundamental question. Is the Superfund program that your bill seeks to address the Superfund program of today? Or, does the bill primarily address the image of the program that existed early on? I will leave to EPA—it is in my written testimony, but there are a number of reforms that have been adopted that I have made—that have made a significant difference.
But I would also like to point out that something that EPA may not have stressed. And that is over the last decade, there have been significant advances in ground water cleanup technologies. My written testimony actually specifically discusses a few of these found in the literature. And it clearly appears from the literature, and I urge this committee to explore the information that we are on the verge of having a much enlarged and much improved tool box for cleaning up ground water. I am concerned greatly that we not, at this level, stifle that innovation and where we are with ground water remediation.
Page 93 PREV PAGE TOP OF DOC Segment 2 Of 2
If Superfund reauthorization deletes the preference for permanent treatment overall, as your bill does, and takes away the push for permanent solutions, as your bill does, what will happen to these fledgling efforts? If costs are elevated in the remedial decisionmaking hierarchy, then are not we likely to nip this innovation in the bud? We should not move to a stage of heavy reliance on institutional controls and long-term management rather than final cleanups.
If treatment remedies today are being used in less than 40 percent of the sites, what message does your bill send to communities, to PRPs, and also importantly to the courts? Will treatment become the rarely used option for modest hot spots, and evolving ground water technology businesses die out?
We fear that the wholesale revision of the remedy section in your bill will yield sloppy cleanups that will require vigilant operation and maintenance for many years to come.
In our view, the bill invites litigation on the question of reasonably anticipated uses and makes that difficult prediction the starting point for all cleanup issues. It may make EPA's efforts to cleanup—to speed up cleanups with presumptive remedies.
On the important question of who pays, your bill, in our view, does grave harm to the fundamental polluter pays approach of strict joint and several liability.
Now, I know that it can be argued that it leaves that language intact, but our reading of it is that it eats around the liability in such a way as to really create a presumption that this is all about proportional liability; that strict, joint, and several liability has really pretty much disappeared.
Mr. Chairman, I might go on, but rather I would like to go back to my earlier question. What Superfund program does this bill attempt to fix? I suggest it is the image of the program at the beginning of the decade rather than the program we have today. If that is the case, I urge you to take credit for the oversight that has brought reform and improvement to the program and do only what must be done.
Page 94 PREV PAGE TOP OF DOC Segment 2 Of 2
First, renew the taxes. Second, reach across the aisle and work on a brownfields legislation that addresses prospective purchaser liabilities that were just discussed; and carefully amend any problems that remain for de minimis parties and local governments under the gun with regard to municipal solid waste. Drop the law's unintended bias against the recycling of scrap paper, metals, and other materials as ironed out by long and careful negotiations.
These, and these alone, are relevant Superfund reforms for 1999. I thank you, Mr. Chairman.
Mr. BOEHLERT. Thank you very much. And let me just say, in response to your statement, that I appreciate all the good things and positive things you said about what we have done. I do not agree with some of the things that you have questioned—for example, you say we delete the preference for permanence. We do not do that, and that is a fact.
And secondly, I cannot believe that anybody would pose the basic system of fair share allocation of responsibility. Third, I think that the basic Superfund program has come a long way, and I could not agree more with you, and I have been among those willing to give credit to the Administration where they have made administrative changes that have improved the program and accelerated the cleanup. But I use the Administration's own words—the Administrator and her staff's own words—in saying that we need something to deal with liability; and it is going to come only through legislation.
And I turn to our Nation's mayors who are pleading with us to do something in a responsible way that will help us cleanup 450,000 brownfields from coast to coast. And we have to respond to that. And I am very mindful of the President's message yesterday in Atlanta. And I am very mindful of what the Vice President has said about urban sprawl, and I want to work with both the President and the Vice President to address those two very sensitive issues. And one way we do that is in our browns field section. So we are trying to do a whole lot of good things, and I would hope you would at least grant us the best of intentions. And we do welcome your input. You have been very valuable resource, and I thank you for that.
Page 95 PREV PAGE TOP OF DOC Segment 2 Of 2
Now, let me turn to Mr. Sullivan, if I may. I have a specific question.
In your testimony, you note that small businesses have been dragged into Superfund sites for simply throwing out their household trash. Should we infer from that that NFIB is only seeking liability protections for household trash disposal or is NFIB seeking liability protections for all small businesses? Would you address that, Mr. Sullivan, please.
Mr. SULLIVAN. Certainly. Mr. Chairman, what I was doing in the written statement and also in my oral statement was making the parallel between Barbara Williams, who threw out household garbage, and what is going on in Quincy, Illinois, right now; and that is a vastly larger universe. But the small businesses there—the same way Barbara Williams is—do not deserve to be in the Superfund system for what they did legally 20 years ago. And that is the purpose of clarifying municipal solid waste.
We would prefer to go further than that and to address the question of whether H.R. 1300 deals with the past Superfund law or the current law? And we would say that for the liability provisions and the small business liability relief, it most certainly addresses the Superfund law now, because if we were to simply sit back or to codify the administrative reforms, then we would not be helping or solving the problem in Quincy, Illinois. It goes beyond that, Mr. Chairman.
Mr. BOEHLERT. Thank you very much. And that is why I so much appreciate the good work and input that we have had from your organization. And let me stress on a bipartisan basis, and even the Administration agrees, that it is sort of crazy to keep small businesses on the hook in general. And we may have some differences on how best to get small businesses out, but the fact of the matter is we want to get the small guy off the hook. We want to get on with cleaning up our toxic waste sites in a responsible manner. So I appreciate the valuable assistance we have received from the organization you are representing.
Let me ask Mr. Reilly, and this is somewhat of a longer question, but I will try to be explicit. Given your experience with the Superfund program and with working on Superfund reforms and Superfund legislation—and it is extensive—were you surprised by the Administration's testimony? And let me go beyond that by saying, are you surprised that EPA can no longer support consideration of reasonable costs as a remedy selection balancing factor, a provision that was in the Administration's proposed Superfund bill? Now, this may be unfair to ask you this question, so you may want to be very terse by saying, yes, you were surprised and somewhat disappointed, or you can expand on it if you want to.
Page 96 PREV PAGE TOP OF DOC Segment 2 Of 2
Mr. REILLY. Rather than taking on EPA, I would say that in practice, EPA and the regions now when they pick remedies normally follow the current law, which has cost in there. And I think it is very fair to have a reasonable cost test when we are taking a new look and maybe a shorter list of criteria for remedy selection. So I was little disappointed that somehow the impact of those words apparently meant a lot more to the administrator than they did to those sitting on this side of the table.
Mr. BOEHLERT. Just let me say because I do want to stick to the time limit for the Chair as well as everyone else. I do not want to have preferential treatment. But the bottom line is simply this that we have consciously reached out to one and all—to the environmental community, with whom I proudly identify, to small businesses, to auto dealers, to the corner gas station guy, to anyone and everyone who would express a willingness to work with us. We have worked tirelessly with Mr. Borski and the Minority staff over the years, and with the Administrator herself. Some people may characterize the exchange that the Administrator and I had this morning as an unfriendly exchange. I would not do so at all. I think she is just as committed as I am to improving a program, and we know from our own words that she is requiring legislative action in some areas to do what we want to do. There is not choice, and further that the fact of the matter is that a tax, I think—I am convinced, knowing how this town works—the tax is going to be renewed, as it should be.
The question is it going to be renewed with a reformed program that focuses on cleaning up, or are we going to maintain the status quo, improved though it is over these years, are we going to maintain the status quo and still have too many dollars going into litigation and courtroom battles rather than actually cleaning up Superfund sites.
With that, I am proud to relinquish the microphone to my colleague from Philadelphia, Mr. Borski. And we know we have learned from him that Philadelphia now has unquestionably the best Mayor in history, according to Mr. Borski's interpretation. And I would assume the Mayor is very supportive with Mr. Borski, likewise.
Page 97 PREV PAGE TOP OF DOC Segment 2 Of 2
Mr. BORSKI. Thank you, Mr. Chairman. You can make sure the Mayor hears you say that rather than me, but I appreciate that. Mr. Sullivan, I just wanted to ask you a question. You were here just earlier and you heard what the Administrator had to say. Could—would NFIB support a smaller version that took care of this small business exemption that you are all looking at?
Mr. SULLIVAN. I think, Mr. Borski, in answer to your question about reaction to the some of the positive statements that the Administrator has said, I would like to clarify that we do not deny the improvements for small business that have been underway with the administrative reforms. What I tried to bring about in my oral and written statement is that we do not feel as though they go far enough, and because of that, we are strongly supportive of the liability relief provided for in H.R. 1300.
We are pleased with hearing the Administrator say that small businesses are unfairly suffering. We are optimistic we can work through the nuances to get to achievable and immediate liability relief for small business, signed into law this year.
Mr. BORSKI. Yes, I guess my question would be if—with all best intentions H.R. 1300 just cannot get there for whatever reason, would you be supportive of a smaller version that would take care of the small business people? As I heard the Administrator today, it seemed to me that a smaller, narrower version is something that could be accepted. I am just curious if that is acceptable to you as well?
Mr. SULLIVAN. Again, I also tried to be very clear in my written statement and oral statement that we want to work with all Members of Congress, and I probably should have added, with the Administration, to provide that type of immediate relief that the Administrator admits can only be had by fixing the law. So if that is the intention towards a narrower bill or the provisions that are within H.R. 1300, that is something that the NFIB looks forward to working with the subcommittee on.
Page 98 PREV PAGE TOP OF DOC Segment 2 Of 2
Mr. BOEHLERT. Mr. Sherwood.
Mr. SHERWOOD. Thank you very much, Chairman Boehlert. I look at H.R. 1300 as a rare opportunity for me to do the right thing for everybody I represent—my environmental friends and my business friends. And that is what good legislation is all about. I am a little concerned. I would like to find today that the—that redefines service station dealers a little bit because, Mr. Diver, I am afraid if we are not careful, that will get defined too narrowly someday to help out people—businesses such as yours. I see that as a little pitfall. And I wanted to address a couple of remarks to you.
You folks have been in the Chevrolet business about seven years longer than the Sherwoods, so we have been fighting the same problems for a long time, and I took a trip, I believe, with your dad a few years ago. But this issue—you are trying to do the right thing. You are sending to a recycler, and it still comes back to bite you; and I would like to ask if you were not able to defend the amounts, because as I run my pencil here a little bit, that is a hundred barrels of oil a year for 15 years. What were they—they obviously were not recycling much. They were dumping it all.
I mean, it seems to me like you sent it to a recycler; if it was recycled, you could not have possibly had those kind of gallonages (sic). I mean you those kind of gallonages in, but they could not have possibly been dumped. Was there any, was there any forum to express that information?
Mr. DIVER. Before I answer the question, if I could make one comment, I would like to agree with your description of your district back home, as you made earlier, having lived in Tunkanek for two years.
Mr. SHERWOOD. I understand.
Mr. DIVER. Was there a forum? We twice, as they shared a little bit of data each time, would take the data they have and run our numbers. We went through our historical records, calculating several different methods—by estimates of how many oil changes we were doing a day, by looking at our records, and the costing of the oil, so we could figure out how much oil that was. We calculated every which way we could.
Page 99 PREV PAGE TOP OF DOC Segment 2 Of 2
By our worst-case estimates, our liability is four times greater than the amount of total waste oil that we could have generated. OK, that seems to be totally outweighed by a few scraps of paper and the recollection. And there was—you threw it at the third party administrators and they came back and said, no. And the description, as a layperson, was, to me, throw out everything you know about due process and what is fair in testimony, because this legislation and this type of law has its own balance—has its own scale. And, therefore, everything we did, while it was analytical and objective, was totally outweighed by the testimony of the whole.
Mr. SHERWOOD. Because my quick running a pencil up here, that was exactly my opinion. I did not see how that could be true. But I am very happy today to have testimony by the National Automobile Dealers Association and the National Federation of Independent Businesses because between the two of those small groups—of those groups, they represent more small business people, more employment and by consequence more working families than most organizations that it could have testified in front of us here today, and I thought that was very significant. I thank you very much for your participation.
Mr. DIVER. Thank you.
Mr. BOEHLERT. And I would also like to point out the Friends of the Earth represents a lot of small businesses and interested people, and it has always been a pleasure for me to work cooperatively with you. And I think we are talking about nuances here as the exchange between the Administrator and the Chair indicated earlier. And so we are going to continue to work with you, and thank you very much. Gentlemen, thank all of your for your valuable input. You are considered as resources to this subcommittee, as we are trying to do what is right for America, and I appreciate that. Thank you very much.
Mr. DIVER. Thank you.
Mr. BOEHLERT. Our next and final panel today, panel four, consists of three representatives. Will they make their way?
Page 100 PREV PAGE TOP OF DOC Segment 2 Of 2
From the National Governors' Association, Mr. Tom Curtis.
From the City of Rockford, Illinois, Ronald Schultz, who is the legal director; and from the National Association of Realtors, Hal Maxfield. He is from Mansfield, Ohio. He is with the Mansfield Real Estate Company.
From the National Association of Industrial and Office Properties, Mr. Barry Trilling, from Pittsburgh, PA.
And from the National Association of County and City Health Officials, Tom Milne, Executive Director, here in Washington, D.C.
It is a pleasure to welcome all of you. Let me state at the outset that your statements will appear in the record at this juncture in their entirety. The Chair would appreciate it if you could try to summarize your statement. And the Chair will be indulgent, as the Chair always is, because we consider this important business, and so we want to hear what you have to say.
Let us go in the order of introduction. Mr. Curtis, I believe your are first.
TESTIMONY OF TOM CURTIS, DIRECTOR, NATURAL RESOURCES GROUP, NATIONAL GOVERNORS' ASSOCIATION; RONALD N. SCHULTZ, LEGAL DIRECTOR, CITY OF ROCKFORD, ILLINOIS; HAL MAXFIELD, HAL MAXFIELD REAL ESTATE COMPANY, MANSFIELD, OHIO; BARRY J. TRILLING, PEPPER HAMILTON LLP, PITTSBURGH, PENNSYLVANIA, AND THOMAS L. MILNE, EXECUTIVE DIRECTOR, NATIONAL ASSOCIATION OF COUNTY AND CITY HEALTH OFFICIALS.
Mr. CURTIS. Thank you very much, Mr. Chairman. My name is Tom Curtis, and I am pleased to be able to make———
Mr. BOEHLERT. Tom, would you pull that up closer up to you? And let me say the Governors have been very helpful, and I appreciate that.
Page 101 PREV PAGE TOP OF DOC Segment 2 Of 2
Mr. CURTIS. Well, thank you, sir. I am happy to be able to make a brief statement this afternoon on behalf of NGA.
First, I would like to reiterate the Governors' strong commitment to protecting public health and the environment. I know you know that. As the Governors know, there is no constituency anywhere in this country for being soft on pollution, for protecting or hiding contaminated sites, or for being weak on cleaning up those sites and getting them back into a productive use. So the Governors do not stand second to anyone in terms of their strong commitment to the goals that I know you share.
They do have a strong interest in making a few changes to the Superfund program and believe that a number of changes are needed to improve the program's ability to cleanup the Nation's worst hazardous waste sites quickly and efficiently. And, Mr. Boehlert, we commend you for making an excellent start at those changes. I know Mr. Borski is not here at the moment. I would say that although we have not had the chance to read his bill, we look forward to reading it and would be happy to make any comments to him in addition on his bill.
Mr. BOEHLERT. So, too, do I.
Mr. CURTIS. The Governors are committed to doing everything within their power to assisting members on both sides of the aisle at developing a successful bill. We hope to work with all of you across the aisle again to develop a final bill that enjoys broad bipartisan support and that the President can sign this year.
Because the States have not yet completed a comprehensive review of the bill of your bill, Mr. Chairman, I would like to limit my remarks this afternoon to two key issues in your bill: the brownfields issue and the Governors' right of concurrence with new additions to the national priorities list. We believe that both of those changes are critical and they work together to make a more streamlined, efficient program.
Clearly, brownfields revitalization is critical to the successful redevelopment and reuse of many contaminated former sites. In considering how best to restore brownfields to productive use, please remember the importance of state voluntary cleanup programs. States are responsible for cleanup at tens of thousands of sites that are not on the National Priorities List. In each of the past five years, States have completed an average of about almost 1,500 brownfields sites. It is important that Federal legislation support and encourage these successful programs by providing the clear incentives and flexibilities that States need to continue these efforts.
Page 102 PREV PAGE TOP OF DOC Segment 2 Of 2
There is no question that voluntary cleanup programs and brownfields redevelopment are currently hindered by the pervasive fear of Federal liability under the CERCLA. Many potential developers of brownfields sites have been deterred because even if a State is completely satisfied that its cleanup standards have been met and even if the site is not on the NPL, there is a potential for EPA to take enforcement against the cooperating party under the CERCLA liability scheme.
While the language in your bill, Mr. Chairman, improves current law in this respect, we believe your important provisions could be strengthened and clarified. Your bill only precludes enforcement at a brownfields site where cleanup is being conducted or is completed. This language may leave innocent landowners who are not required to take or complete action under many State laws vulnerable to State enforcement. While your bill offers a defense against liability for innocent landowners, such landowners, innocent landowners, could still find themselves in court incurring substantial legal fees even if they have complied with state law.
In addition, the exceptions to enforcement in your bill may let EPA take an enforcement action in inappropriate situations. We believe that the States should have an adequate opportunity to go to a site and take their own appropriate action or to cure any defect that EPA may see in the State's response at a given site before EPA would step in and take enforcement action even under a reopener, as defined in your bill.
A better approach, we believe, and what the Governors strongly recommend, would be to ensure that at non-NPL sites, a release of liability under State cleanup laws that are protective of human health and the environment would constitute by operation of law a release from Federal liability.
In addition, we believe CERCLA should be amended to give credit in the form of a legal release to those who have cleaned a site to protection standards in accordance with the State voluntary cleanup program that is protective of human health and the environment. These changes would greatly encourage voluntary cleanups and, thus, increase the number of cleanups completed.
Page 103 PREV PAGE TOP OF DOC Segment 2 Of 2
Another provision that we believe is very important concerns the concurrence of the Governor of a State in which a site is located before a site could be added to the NPL. We believe that this provision is vital. There has been a great deal of discussion in recent years about the future of the Superfund program and whether Congress ought to legislate a ramping down of the program. We believe that with State programs having grown much more mature than was the case in the early days of the Superfund program, there will be a natural process of relying more and more on States to do most of the cleanups. Because States are currently overseeing most cleanups, listing a site on the NPL when the State is prepared to apply its own programs and authorities is not only wasteful of Federal resources, it is very often counterproductive, resulting in increased delay and confusion and greater costs.
To avoid this, Governors should be given the statutory right to concur with the listing of any new NPL sites in their State. In the event that EPA discovers an imminent and substantial threat to human health and the environment, of
course, it could continue to use its emergency removal authority.
It is currently EPA policy, I would note, to seek the Governor's concurrence before listing a site in his state, and we simply ask that you codify this practice and mandate as a matter of law that EPA obtain the Governor's concurrence.
In summary, Mr. Chairman, again the Nation's governors appreciate your very hard work in advancing your proposal. We look forward to working with you and with members on both sides of the aisle. I hope that all members will roll up their sleeves in the spirit of genuine compromise and pass a bill that the President can sign this year.
Mr. BOEHLERT. Thank you very much, and I want to thank the National Governors' organization for being so helpful and so free to share counsel with us. A number of the governors are very close personal friends. One of my dearest friends is Tom Ridge, the Governor of Pennsylvania, and my own governor, George Pataki. I work very closely with him, and Don Sunquist down in Tennessee. I mean, there are whole lot of them. George down in Austin, so the Governors' Association is a valuable resource that we should constantly look to for advice and counsel because they are there. They are dealing with these problems every single day, and they can—we can learn from their experience.
Page 104 PREV PAGE TOP OF DOC Segment 2 Of 2
Mr. Schultz.
Mr. SCHULTZ. Thank you, Mr. Chairman. Thank you for the opportunity to address your committee on the critical issue of recycling America's urban land.
My name is Ron Schultz. I am legal director for the City of Rockford. Our Mayor, Charles Box, sends his regards, but he was unable to attend today. Mayor Box co-chairs the U.S. Conference of Mayors' Committee on Brownfields. Mr. Box fully supports the simplification of Superfund, represented by H.R. 1300 and believes that the brownfields funding contained in the bill will be a productive investment in America's cities.
The Rockford community is just completing a decade-long Superfund experience. In January, the City of Rockford entered a voluntary settlement with the Department of Justice and the State of Illinois, whereby over $17 million was agreed to be paid by the city and over 130 property owners for past and future response costs. We believe that this
settlement was unique in that a municipality took the lead in negotiating the settlement and promoting an equitable allocation of costs. We were able to negotiate protection from Superfund liability for future owners and lenders. The complete Rockford experience has been documented by Peggy Morrissette of the Manufacturer's Alliance in a case study that I would like to submit for the record.
Mr. BOEHLERT. Without objection, so ordered.
Mr. SCHULTZ. Thank you. Rockford is the second largest City in Illinois. We have a population of about 140,000, and we are located just northwest of Chicago. Industry Week last year named us as one of the top 25 manufacturing centers in the country. We have over 1,000 small manufacturing firms operating within the city. The problem with our manufacturers is that they have used a variety of solvents over the years in the metalworking industry. These solvents sometimes were routinely dumped on the ground. And with our sandy soil, they reached and contaminated an aquifer in the city.
Page 105 PREV PAGE TOP OF DOC Segment 2 Of 2
Superfund worked very well when some of these contaminants began showing up in the drinking water of 500 private homes just outside the city limits. The EPA stepped in to protect public health and connected over 500 homes to our public water supply. These homes were then annexed to the city. That was the good news.
The bad news was that the search then began to look for the responsible parties. First, one square mile was designated as the Superfund site, and that only contained the residences. There were no polluters there. Then this site expanded to five square miles, and not all of the polluters were identified yet. Soon, 10 square miles of the City of Rockford were designated a Superfund site, which was 20 percent of the land area of the city. Over 600 industrially zoned properties were affected and some adjacent homeowners were even having trouble getting loans. Lending and buying of industrial properties in this older industrial area of our city ground to a halt. And we were faced with the prospective of the pyramid which Administrator Browner had with her this morning of hundreds of lawsuits being filed to try to sort out liability.
We knew that, as a community, we had to do something, and Mayor Box took the lead in trying to organize a voluntary settlement. We knew that the lawsuits would take time and money, our property tax base would be eroding.
We looked to a model of Wichita, Kansas, which was able to come up with a community-based solution, and that provided a very good example. But the problem was, for us, that Wichita was not on the NPL, and we were. This made the fast solution that Wichita came up with very difficult to implement for us. We were able to work through some of these problems, but it took quite a while to get to a voluntary settlement. But we were able to do that with many of the provisions that are incorporated in H.R. 1300.
Therefore, we support the bill because it would encourage voluntary settlements.
Page 106 PREV PAGE TOP OF DOC Segment 2 Of 2
Section 104 and 105 offer assurance that the Federal Government will not unnecessarily intervene in State voluntary cleanup negotiations, such as happened in Wichita.
Section 303 offers relief for innocent parties—the clarifications for contiguous property owners would be very useful in cases like ours, where there are contaminated aquifers.
And thirdly, section 401 encourages more realistic remedy selections. I must say that the selection in Rockford was realistic, and the EPA did do the right thing here. But I shudder to think how close we were to a remedy that cost ten times as much.
In summary, early participation by local governments and business leaders can encourage realistic settlements and cleanups. H.R. 1300 would support such efforts, and we in Rockford encourage its adoption.
Mr. BOEHLERT. Thank you very much.
Mr. Maxfield.
Mr. MAXFIELD. Thank you, Mr. Chairman. And thank you for the opportunity to present the views of the National Association of Realtors on H.R. 1300, the Recycle America's Land Act.
I wish to thank Chairman Boehlert for his continued and determined leadership in building bipartisan consensus on this very important issue.
My name is Hal Maxfield. I own a full-service commercial real estate company in Mansfield, Ohio. I have been a commercial real estate broker for 27 years.
It is often said—and I agree—that realtors do not just sell real estate, they sell communities. The more than 730,00 members of the National Association of Realtors, real estate professionals involved in all aspects of the real estate industry, are concerned and active members of their
communities. We want clean air. We want clean water, and we want clean soil. We care about a healthy quality of life as well as a vibrant economy, and we are willing to do
Page 107 PREV PAGE TOP OF DOC Segment 2 Of 2
our part to maintain that important balance.
However, we also expect the same fairness, certainty, and predictability from government regulators that our customers and business partners expect from us. In this respect, Superfund has clearly failed.
Superfund began with the laudable goal of cleaning up hazardous waste sites to protect human health. Progress has been achieved, and for that the EPA deserves credit. Unfortunately, progress has come at a high price. While
serving as a mechanism for hazardous waste cleanup, Superfund has also served as an engine for massive litigation. Deep pocket parties targeted by EPA have turned around and sued smaller entities. Many small business owners who did nothing more than dispose of common garbage, recyclers who tried to be environmentally-conscious, and innocent property owners who have not caused or contributed to hazardous waste contamination have been drawn into years of costly litigation defending against the threat of huge cleanup liability.
As a first step, these parties should be provided with the maximum possible degree of liability relief so that the resources can be targeted toward cleanup rather than litigation. When it comes to Superfund cleanup, we must ensure that the real polluters pay.
From the perspective of a taxpaying citizen, it is the right thing to do to ensure that Superfund is administrated in a fair and effective manner. From the perspective of a businessman, it will provide the certainty needed in order to move forward in developing sites that are known or suspected to be contaminated.
As a second step, the Federal Government should recognize and support the hazardous waste cleanup efforts currently underway at the State level. In an effort to revitalize their urban centers, most States, including my State of Ohio, are creatively attacking the hazardous waste problem by providing incentives through a voluntary cleanup program.
One common incentive provided by these programs is liability relief. Typically, the State will provide some form of liability relief, it has had in an approved cleanup. In Ohio, relief comes in the form of a No Further
Page 108 PREV PAGE TOP OF DOC Segment 2 Of 2
Action letter from the state EPA. Unfortunately, there is no guarantee that the Federal EPA will not assert authority at a future date and require additional cleanup. Without the certainty of owing that they are protected from Federal as well as from State liability, property owners and developers
are very reluctant to undertake development of a site which might be or which is contaminated.
Let me give you an example. I recently had a contract as listing agent to sell a large warehouse property, over 30 acres with two 100,000 square foot buildings on it. And the prospective buyer wanted to add another 250,000 square foot building on the property. The property unfortunately was located adjacent to an active—oh, I am sorry—to an inactive government operated landfill. There were concerns about contamination on the property due to the possible and potential migration of heavy metals from the landfill sometime in the future. The site that we were trying to sell was a clean site, but the concern was that there would be migration from this former landfill.
If we only had to comply with Ohio law, the government entities that operated the landfill could have removed the contamination, to a level acceptable to warehousing use and property would have been sold in a reasonable time. However, because of uncertainty over future Federal liability, the lender and purchaser were reluctant to go forward. As a result, it took five years to close the deal, and that was only after we found a new buyer and a new lender willing to face the possible risk of future liability.
If these reforms are achieved, hazardous waste sites throughout the country will be returned to productive use. Communities will be revitalized by increasing the tax base, creating jobs, and rejuvenating neighborhoods. Otherwise, they will remain blighted and unused, contributing to nothing but economic ruin.
H.R. 1300 presents a win-win opportunity for everyone by achieving cleanup of hazardous waste sites, encouraging property reuse and enhancing community growth. The National Association of Realtors supports H.R. 1300, and we encourage the 106th Congress to act on Superfund reform.
Page 109 PREV PAGE TOP OF DOC Segment 2 Of 2
I thank you again for this opportunity to present the views of the National Association of Realtors, and I will be glad to answer any questions.
Mr. BOEHLERT. Thank you very much, Mr. Maxfield.
Mr. Trilling.
Mr. TRILLING. Good afternoon, Mr. Chairman. I am Barry Trilling, member of the National Association of Industrial and Office Properties, NAIOP, and Chairperson of the NAIOP's task force on Superfund Reform and Brownfields Revitalization. I practice law as a partner in the Pittsburgh office of Pepper Hamilton, LLP, and I have concentrated in environmental law and land use issues for more than 25 years, including a stint at the Justice Department as its lead attorney in the litigation over the Love Canal, perhaps the original brownfields.
NAIOP, with more than 7,000 members, is the Nation's leading organization of developers, investors, and owners of commercial real estate. We own the brownfield properties. We buy the brownfield properties. And we develop the brownfield properties. We support H.R. 1300, but we have some proposals on how we think it might be improved.
My written testimony details the whys and wherefores, but in brief, Superfund's open ended liability scheme has led owners to mothball contaminated properties. You have heard that over and over again today. When these properties do appear on the market, most developers avoid them for fear of endless uncertainty and undue financial liability. In my testimony today, I will focus on section 303, Innocent Party Protection; section 104, Deferral to State Cleanup Programs; section 401, Remedy Selection; and section 102, Brownfields Grant Programs.
Section 303 amends Superfund section 107's liability scheme to release innocent owners who did not contaminate the site. In doing so, it refers to the exercise by these owners of appropriate care of hazardous substances. This comprises site specific determinations based on good commercial standards and practices at the time of the defendant's acts and omissions. It also provides for appropriate inquiry into site conditions by innocent purchasers, based on customary standards and practices at the time of acquisition. These two provisions dealing with innocent landowners and new purchasers guard against EPA's imposing current standards of knowledge and technology that did not exist at the time of the relevant acts. This should provide some responsive reference to Administrator Browner's statement this morning about people who bought properties before Superfund's enactment when these standards did not apply and no one could have knowledge of such standards.
Page 110 PREV PAGE TOP OF DOC Segment 2 Of 2
Regrettably, however, in amending Superfund section 107(b), we think that section 303(a) places an unjust burden on the landowner to establish its eligibility for the defense. In fairness, the plaintiff should have the burden to establish the landowner's guilt, rather than for the landowner to prove its innocence. On the other hand, section 104 properly releases parties that comply with State programs, correctly recognizing that site owners and developers need assurance that their investments and cleanup to meet State standards will not come back to haunt them.
Site purchasers also need to know that they will not face future Federal liability for properties cleaned up under State programs. This applies both to EPA enforcement, and even more importantly, something people have not addressed here today, trailing liability from lawsuits filed by private parties long after a party who owns or purchases the site no longer has involvement. They are not just afraid of an unreasonable EPA; they are concerned about somebody 30 years later coming back and sinking a footer someplace where no one had ever expected contamination to be. And—despite reasonable efforts to cleanup the property, they are stuck with liability, even if they did not create the problem. This is a major reason these properties are not moving and remain mothballed.
H.R. 1300 will provide reasonable finality with statutory protections for persons who meet the requirement of state programs. While neither the Federal Government nor private parties will able to bring cost recovery or contribution actions, the State governments, which issue the final releases will continue to be able to pursue their Federal Superfund remedies, an adequate level of protection.
H.R. 1300 also protects human health and the environment where conditions warrant Federal reopening of State approved cleanups. This reopener and the ability of the States to reopen belies what I think is a cynical assertion that the States will compete to establish the lowest cleanup standard among themselves in order to attract business. It is just the opposite. It will encourage the development and use of successful State programs, like Pennsylvania's. Section 401 addresses unrealistic cleanup standards also in Title IV. This avoids unrealistic standards which mandate actions whose costs exceed the value of the property to be cleaned up.
Page 111 PREV PAGE TOP OF DOC Segment 2 Of 2
Referring back again to Pennsylvania's land recycling program, part of its extraordinary success is due at least in part to allowing cleanups with site specific risk-and use-based cleanup standards instead of inflexible standards that may be technologically or financially unattainable. We think section 401 of H.R. 1300 adopts this concept, and we share the skepticism expressed by Mr. Reilly, and others about reading this bill to dilute protection of human health. The bill, by requiring EPA's exposure assessments and remedy selections to adopt this concept, makes it consistent with current and reasonably anticipated uses of the property. A steel mill, after all, should not have to meet the standards of a day care center.
Section 102 provides significant financial incentives for brownfields cleanup, but we think it would be a better bill if those incentives were a bit more market oriented. Site cleanup alone cannot assure access for a brownfields. Oddly, while the incentive provisions for grants for site inventories and assessments has these economic standards, the provision for site remediation grants does not.
We encourage you to act now. We have a great window of opportunity while we have economic prosperity. Let us act while prosperity exists and get some of our developers to get into those urban infills. Thank you.
Mr. BOEHLERT. Thanks very much.
Now, this is what happens on the Hill. We have got a call in the House for a vote. Mr. Milne, we will be able to conclude your testimony if you reasonably stay within the five minute limit. So, would you go forward, please?
Mr. MILNE. Thank you, Mr. Chairman. I am Tom Milne, Executive Director of the National Association of County and City Health Officials, which is half of my time just saying the name of the association. We serve all 3,000 local health departments in the country. As you probably know, local health departments are the agencies on the front lines in protecting and promoting the health of their communities.
Page 112 PREV PAGE TOP OF DOC Segment 2 Of 2
I personally spent 25 years in the practice of local public health, the last 15 of which was as an Agency Director in southwest Washington State. We are honored to have this opportunity to comment on H.R. 1300, and I will limited my comments today to just those public health aspects of the bill.
We believe the bill will significantly strengthen public health and community participation in Superfund, and has the potential to assist in the responsible development of brownfields. We are very grateful, Mr. Chairman, for the attention that you have given to the public health role in Superfund, including the role of local public health departments. Public health considerations have been built into the Superfund from the very beginning, and have been carried by the actions of ATSDR. However, the full potential for public health intervention to improve the efficiency and effectiveness of Superfund has not been realized.
To achieve this potential, the Superfund program must require full involvement of public health experts from the earliest stages of the Superfund process.
H.R. 1300, as you know, Mr. Chairman, recognizes this by requiring the consultation with local public health officials at the time of preliminary assessments and site inspections and then regularly thereafter.
When a hazardous waste site is identified, everybody in the community has questions. Public health assessments using the best scientific methods and data available help to answer those local questions and alert all parties to the key public health issues, and equally importantly in some instances the assessments can also mitigate local concerns by demonstrating that there, in fact, is not a health problem.
Once a hazardous waste site is identified, there is a window of opportunity for establishing baseline health and exposure data to understand the potential health risks that exist and to develop plans for remediation that specifically address those health risks. This window all too often closes before public health has a chance to intervene.
Page 113 PREV PAGE TOP OF DOC Segment 2 Of 2
H.R. 1300 encourages the completion of public health assessments prior to the choice of remedial activities, lending to the higher likelihood that health considerations will be included. As you know, Superfund process is governed by State and Federal agencies, and local health departments have not had statutory authority. But they do have the responsibility for the protection and promotion of health for their entire community. It is critically important to bring local public health agencies to the table, then, to understand demographic and cultural characteristics that apply to remediation.
Let me say a few words, if I can, about brownfields. While the statutory authorities differ widely from Superfund, the same health and public health principles apply. Local public health officials dealing with the 600,000 brownfields, the number that we are using, know that the health of the public is intimately linked to economic prosperity. Economic development is vital to creating and sustaining healthy communities.
Done carelessly, however, economic development can have a negative impact on the health of the public. The local public agency's role in brownfields includes the application of professional expertise to determine the readiness and the appropriateness of a property for redevelopment. It includes determining the baseline health status of the community members that are potentially affected by the site. Public health authorities can serve as brokers between developers, redevelopment authorities, and the community at large. They may conduct long-term monitoring of the site as well.
Done well, public health oversight of brownfields can protect the investment of the developer and the health of the community. As with Superfund sites, health protection of the special vulnerabilities of children is especially critical.
Redevelopment of a waste disposal site in Weld County, Colorado, illustrates the benefits of public health involvement. The county commission, aware of an abandoned waste site—and that it was lying unused—requested the health department to investigate the site to determine what, if any, contamination remained. An assessment revealed that the soils beneath the facility were contaminated. The health department worked with the prospective developer to establish a common-sense plan involving soil treatment, which the development paid for. The project was completed. The county is now assured that there is no risk of future public health problems due to contamination, and the property is back on the tax roles.
Page 114 PREV PAGE TOP OF DOC Segment 2 Of 2
H.R. 1300 establishes a number of granting mechanisms, which you are well aware of. We would suggest three changes—three additions—that the mechanisms also include funding for: assessments of local public health impacts of redevelopment and remediation activities; secondly, ongoing monitoring of human health and environmental effects; and lastly, ongoing enforcement of institutional controls that may be delegated as laws change and affect local health authorities.
We have additional comments in writing, Mr. Chairman, but just to reemphasize, we very much appreciate your leadership in this. We think it is an important bill, and we support its passage.
Mr. BOEHLERT. Thank you very much, Mr. Milne. As I think it is very apparent to one and all, public health and the environment need to be protected, and that is the purpose of this bill.
We have a call in the House, and I could ask you to hang around for a half hour. That would not be fair to you. Let me say all of your statements are in the record in their entirety. We appreciate your comments. We appreciate your constructive suggestions. We appreciate the spirit with which you come before this committee. Together, we can get something accomplished that is going to be good for all.
So I thank you for your input, and I would declare this hearing adjourned.
[Whereupon, at 2:11 p.m., the subcommittee was adjourned.]
[insert here]