CRS Report: -

Summary

The Superfund reauthorization bill, H.R. 1300, was ordered reported by the House Transportation and Infrastructure Committee on August 5, 1999, and now goes to the Commerce Committee, which shares jurisdiction. Title I authorizes programs to assess and clean up brownfields, provides funding for state voluntary cleanup programs, and prohibits federal enforcement at sites cleaned up under state law. Community participation in decision-making is promoted by Title II, and the duties of the Agency for Toxic Substances and Disease Registry are re-focused. Title III relieves a variety of innocent parties of Superfund liability, and reduces, limits, or eliminates the liability for small businesses, municipalities, municipal solid waste, sewage sludge, and recyclers; it also creates a process for determining the cost shares of parties at Superfund sites. Title IV adds some flexibility to remedy selection rules, and adopts several of EPA's administrative reforms. In Title V the role of Indian tribes is enlarged, the state cost share of operation and maintenance is reduced, and states are given final authority at federal facility cleanups not on the National Priority List. Title VI provides program authorization for 8 years: at $1.5 billion annually for 4 years, then gradually declining to $975 million. Title VII recommends reinstating the Superfund taxes. (For more on Superfund reauthorization, see CRS Issue Brief IB1OO11, Superfund Reauthorization Issues in the 106^th Congress.) This report will be updated as events warrant.

On August 5, 1999, the House Committee on Transportation and Infrastructure ordered reported H.R. 1300, a Superfund reauthorization bill, by a vote of 69-2. The bill now proceeds to the Commerce Committee, which shares jurisdiction, and to the Ways and Means Committee for consideration of the Superfund taxes. The bill reauthorizes the program for 8 years, and starts a gradual decrease in the authorization of appropriations in the 5'h year. While ramping down the federal program, H.R. 1300 enhances state authority by promoting state brownfield and voluntary cleanup programs, but it retains the Environmental Protection Agency's (EPA's) authority to intervene at contaminated sites in emergencies and certain other situations. Superfund liability is reduced or eliminated for a number of parties. The bill makes targeted revisions to the Act's remedy selection rules, adds new cleanup provisions, and adopts several of EPA's administrative reforms.

EPA opposes the bill, saying it eliminates the "polluter pays principle" by carving out major exemptions for large corporate polluters, thereby imposing the costs of the program on taxpayers. The agency added that the bill would limit EPA's enforcement capabilities, delay cleanups, drive up program costs, and create new opportunities for litigation. The Environmental Defense Fund and the U.S. Public Interest Research Group also oppose the bill. Supporters of H.R. 1300 include the National Governors Association, the Chemical Manufacturers Association, the National Federation of Independent Business, the American Insurance Association, and organizations representing realtors, the trucking industry, the food industry, automobile dealers, and environmental consulting and remediation firms. The American Petroleum Institute favors some of the remedy selection provisions and the brownfield program, but because H.R. 1300 recommends the reinstatement of Superfund taxes, the organization opposes the bill.

Brownfield Grant Programs. The bill establishes two brownfield programs. The first provides grants of up to $200,000 to state and local governments, state or local redevelopment agencies, and Indian tribes to inventory and assess brownfield facilities, defined as "real property with respect to which expansion, development, or redevelopment is complicated by the presence or potential presence of a hazardous substance."

The other program would provide grants of up to $1 million to the same entities to capitalize revolving loan funds (RLFs) for brownfield remediation (cleanup) at one or more sites. In the case of a remediation RLF grant to a state, the state must pay a matching share of at least 50% of the amount of the grant. The loans may be made (by the grant recipient) to a state, a site owner, or a site developer. H.R. 1300 would allow up to 10% of a remediation RLF grant to be used to monitor the health of any populations exposed to hazardous substances from a brownfield, and to monitor and enforce any institutional controls required to prevent human exposure. The bill authorizes "such sums as may be necessary" to carry out the programs.

State Voluntary Cleanup Programs. The bill authorizes EPA to provide technical, financial, and other assistance for state voluntary cleanup programs. H.R. 1300 provides $25 million per year for FY2000 - FY2007. Each participating state would receive a minimum of $250,000 per year.

Enforcement in Cases of a Release Subject to a State Response Action. The bill prohibits the use of CERCLA federal enforcement authority at a site that is not on the National Priorities List (NPL), and at which cleanup is being conducted or has been completed in compliance with a state response action law. It provides exceptions for emergency situations and cases where contamination crosses state lines.

Additions to the NPL. H.R. 1300 defers listing a facility on the NPL if a cleanup will be performed under other federal or state authority, or if the state is attempting to obtain an agreement from a person to perform a cleanup.

Community Participation. The bill requires the President to take specific actions to ensure meaningful public participation in decision-making at each significant phase of a response action at a facility listed, or proposed for listing, on the NPL. It authorizes state, tribal, and local entities, including the affected community, to propose alternative remedies, and requires the President to make response action records available to the public. Risk information must be presented in an unbiased manner, with uncertainties disclosed, and information must be provided on the releases of hazardous substances from facilities during response actions.

The bill makes technical assistance grants (TAGs) available to communities at a broader range of facilities, deletes the 20% matching contribution requirement, and allows partial advance payments. CERCLA currently provides TAGs of $50,000 to communities at NPL sites only.

ATSDR Duties. H.R. 1300 deletes the requirement to keep a national registry of serious diseases and states that the registry of persons exposed to hazardous substances is for scientific and public health purposes. It broadens the scope of substances for which the Agency for Toxic Substances and Disease Registry (ATSDR) must prepare toxicological profiles, and directs the agency to publish and revise profiles as appropriate, rather than every 3 years. The bill authorizes health effects research by ATSDR directly or through appropriate institutions.

H.R. 1300 requires ATSDR to perform preliminary public health assessments for facilities, and then to conduct full assessments, as needed. It specifies actions for ATSDR to improve community involvement in assessments and provides for grants or contract assistance to groups that may be affected by releases. When appropriate, ATSDR must study exposure or health effects for selected groups to determine the need for full-scale health studies of the entire exposed population. Furthermore, ATSDR must establish an external peer review committee.

The bill directs ATSDR to consult with the Indian Health Service and to respond in writing to tribes or states when rejecting recommendations for further health activities at sites assessed by states. Also, it prevents low population density from reducing the priority of a site when priorities are based on health risk.

Hazard Ranking System, and Special Facility Scoring. The bill revises hazard ranking system provisions by placing the highest priority on facilities with hazardous substance releases that result in actual ongoing exposures at levels of concern. It directs EPA to evaluate areas likely to warrant special attention, such as Indian reservations or poor communities, and to identify up to 5 facilities in each EPA region that are likely to warrant inclusion on the NPL.

Section 106 Amendments. The bill defines "sufficient cause" for establishing a defense for noncompliance with an order; and prohibits federal agencies that are liable parties at a site from using Section 106 cleanup orders against other parties at the site.

Innocent Parties. The bill makes a technical amendment regarding the liability of common carriers by rail. It establishes an affirmative defense for innocent land owners, including: owners who acquired property after CERCLA's enactment or who redeveloped brownfields; owners who acquired contaminated property by inheritance or by charitable donation; governmental entities that acquired property by involuntary transfer or eminent domain; owners or operators (o/o) of publicly or federally owned sewage treatment works; o/o of roads, streets, or other rights of way; o/o of a railroad spur track; and construction contractors who are not response action contractors. The bill requires that the o/o took appropriate care, and made appropriate inquiry prior to purchase. If the federal government has incurred response costs at a facility, the United States may place a lien on the property to recoup any unrecovered expenditures when the facility is resold.

The bill makes any arguments of the United States regarding the interpretation of Section 107(f) (natural resource liability), when acting as a defendant in an action under CERCLA, admissible in an action brought by the United States when acting as a plaintiff.

Additional Liability Limits. The liability provisions of H.R. 1300 may be the most controversial aspect of the bill. It adds liability protection for state, tribal, and local governments for their actions to protect water quality at abandoned mine sites; and clarifies that the owner or operator of property contiguous to contaminated property is not considered an o/o under the Act (thereby protecting the person from liability), provided the person did not cause or contribute to the hazardous substance release, and is not affiliated with the responsible parties.

The bill exempts from liability small businesses (fewer than 75 employees and less than $3 million in gross revenues), and "de micromis" generators and transporters (contributors of less than 110 gallons or 200 pounds of material containing hazardous substances) unless their hazardous substances contribute significantly to the costs of cleanup; it also exempts generators and transporters of municipal solid waste and sewage sludge. The liability of municipal o/o of landfills is limited to 10% of total response costs if their population is less than 100,000, or 20% if the population is more than 100,000. The share of liability for those whose liability is exempted or limited would be paid by the Trust Fund. The existing liability protections of response action contractors (who do cleanup work) are extended to include protection from state liability, and a 6-year statute of limitations is added. The bill allows expedited final settlements for de minimis parties (less than 1% of the volume of materials containing hazardous substances), and for persons, small businesses, and municipalities with a limited ability to pay. It also exempts recyclers of paper, plastic, glass, textiles, rubber, metal, and batteries from liability if they can make certain threshold demonstrations.

Allocation Process. The bill establishes an allocation process to determine the parties' equitable shares of costs at facilities on the NPL, including the share to be borne by the Trust Fund.

This title makes several changes to the remedy selection rules and cleanup provisions of CERCLA §121 and adds new provisions on using institutional controls as part of remedial action strategies. Several of EPA's administrative reforms are incorporated.

Remedy Selection Rules. CERCLA currently states a preference for "treatment which permanently and significantly reduces the volume, toxicity or mobility of the hazardous substances, pollutants, and contaminants - . .." H.R. 1300 adds some flexibility to this provision by authorizing implementation of this preference in accordance with EPA's 1991 guidance on addressing principal threat (hot spot) and low level threat wastes. The bill also adds anew criterion for evaluating potential remedies, i.e., the ability to make property available for beneficial use.

Reasonably Anticipated Uses of Land and Water. The bill requires that exposure assessments be based on the current and reasonably anticipated future uses of land, water, and other resources and on actual exposure data, if available. It also outlines criteria for identifying reasonably anticipated uses of land and water, including requirements to solicit state and local input. Special rules for ground water defer to use determinations made under state ground water protection programs. If no state program exists, the general assumption is that the ground water use is drinking water, unless certain conditions exist. The bill authorizes use of EPA's phased approach to ground water remediation.

Applicable Requirements. The bill deletes CERCLA's mandate that remedies must meet "relevant and appropriate" requirements of other laws. It also drops the applicability of Safe Drinking Water Act maximum contaminant level goals (which are not enforceable drinking water standards) and requires state requirements to be consistently applied.

Institutional Controls. The bill provides that where wastes remain on-site at unprotective levels, a remedy must: include restrictions on the use of land, water and other resources to provide long-term protection of health and the environment; provide for ongoing monitoring and maintenance; and include any necessary and enforceable institutional controls. Institutional controls may be used to supplement, but not replace, other response measures, except in extraordinary circumstances.

Hazardous Substance Property Use. H.R. 1300 adds new provisions authorizing the President to acquire, at fair market value, a hazardous substance easement where institutional controls have been selected as a component of a remedy. Such easements would be enforceable in perpetuity; however, if a person further cleans up a site, EPA may approve a modification or termination and release of the easement.

Risk Assessment Principles. The bill requires that risk assessments under CERCLA must: provide objective assessments that neither exaggerate nor minimize risks; distinguish scientific findings from other considerations; be based on all reasonably available, reliable scientific information and describe the process for selecting the information; and be based on an analysis of the weight of the evidence.

Indian Tribes. The bill increases the role of Indian tribes with respect to public participation, remedy selection, and voluntary cleanup programs, and requires the President to study the health impacts of NPL sites on Indian tribes.

Training and Education. At least 20% of the funds for worker training and education must be allocated to non-profit organizations for training minority and other community-based workers who are or may be directly engaged in hazardous waste removal or containment or emergency response actions.

State Cost Share and State and Local Reimbursement. The bill sets the state share at 10% of all costs of a fund-financed remedial action, and 10% of operation and maintenance costs. Current law requires 10% of the remedial action cost, and all future maintenance costs. Also, the bill makes states (as well as local governments, as in present law) eligible for reimbursement for emergency response actions, up to $25,000 per site.

State Role at Federal Facilities. The bill makes interagency cleanup agreements between a state and any federal agency enforceable in U.S. District Court. It provides for dispute resolution; if no agreement is reached, the state may issue the final determination.

Federal Cost Study. The Congressional Budget Office is directed to conduct a study of the potential costs to the U.S. Government over the next 20 years for natural resources damages.

Authorization. The bill authorizes appropriations for 8 years. The authorization level is $1.5 billion per year for FY2000 through FY2003, $1.4 billion for FY2004, $1.3 billion for FY2005, $1.2 billion for FY2006, and $975 million for FY2007. From these amounts the bill provides direct spending authority to pay for the shares of parties whose liability is reduced, limited, or exempted: for FY2000 - FY2004 it is $300 million, and for FY2005 - FY2007 it is $200 million.

No Superfund money may be used in connection with any natural resource damage claim related to the long-term exposure to air pollutants from multiple or diffuse sources. The bill also authorizes $1 million for a study of the 10-year funding needs for the Superfund program.

General Revenues. The bill authorizes $250 million per year to be appropriated from the general fund of the Treasury to the Superfund Trust Fund.

Excise taxes levied on petroleum and chemicals, and a corporate income tax are the primary sources of revenue for the Superfund Trust Fund which finances EPA's program. The taxes expired on December 31, 1995. H.R. 1300 expresses the sense of the Committee on Transportation and Infrastructure that the Superfund taxes be reinstated for the period January 1, 2000 - December 31, 2007; that the rate of taxes and combination of taxes be commensurate with the revenue needs; and that the taxes may be reauthorized at a lower rate, and may decline over time. The tax language is within the jurisdiction of the Ways and Means Committee.

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