Redistributed as a Service of the National Library for the Environment*
|
Redistributed as a Service of the National Library for the Environment* |
|
|
|
Superfund and States: Claudia Copeland. October 16, 1997 97-953 ENR Table of Contents Summary
Issues Potentially Affecting States in CERCLA Reauthorization
The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA, or 99Superftind"), when it was enacted in 1980, gave the federal government the lead role in cleaning up the nation's worst hazardous waste sites. It did not envision that states would assume responsibility to run the program, unlike most other environmental laws. Since 1980, states have come to play an increasingly important role in waste site cleanup and now, through cooperative arrangements, have assumed lead responsibility for about 10% of federal Superfund sites (those on the National Priorities List, or NPL). More significantly, many have developed programs to address sites that do not present enough of a risk to be cleaned up under the federal program, but do require some cleanup by states, localities, and responsible parties. There are an estimated 30,000 such sites nationally, compared with 1,300 NPL sites. Over the last decade in particular, state cleanup programs have matured from site discovery and assessment to deciding what cleanup standards to apply. Half of the states have adopted standards which in some cases are more stringent than federal. Most states follow the federal lead in CERCLA of holding a wide spectrum of responsible parties liable for cleanup, and a large majority also follow the federal model and impose retroactive, strict, joint, and several liability under state cleanup laws. All states but two have established a state response fund (state Superfund), allowing the state to investigate, plan, and conduct emergency response and remedial actions. In addition, 35 states use voluntary cleanup programs as an additional tool. Many have specific programs for brownfields, or abandoned industrial sites, in order to spur redevelopment. A number of policy issues are of interest to states as Congress considers reauthorizing CERCLA. The most important is whether the law will be modified to allow states to assume more responsibility for the federal program. There is apparent agreement that states should have a larger role, because of capabilities they have shown and to reduce duplication and delay in the federal-state Superfund partnership now. There is less agreement on the approach to be used (program authorization or delegation), degree of flexibility, and the continuing federal role in overseeing state programs. States also have interest in other reauthorization issues because statutory changes could have implications for state policies. On the issue of liability, states say that modifying federal rules, in terms of retroactivity or broad categorical exemptions, could lead to the inequitable situation of NPL and non-NPL sites being held to different standards. Most states favor some categorical exemptions from liability, however. On cleanup standards and remedy selection, states contend that NPL sites, including federal facilities, should have to meet more stringent state standards, or the incentive for states to seek more program responsibility is much reduced. Also, development of state voluntary cleanup programs will be slowed without changes in the law to relieve voluntarily cleaned up sites from future federal liability. While seeking more responsibility under CERCLA, states do see a need for a continuing federal role in funding cleanup programs, providing emergency response and backup to states, and research. Since the passage of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA, or "Superfund") in 1980, the federal government has played the lead role in cleaning up the nation's worst hazardous waste sites, whether through enforcement actions against responsible parties or by undertaking cleanup itself CERCLA foresaw only a limited role for the states. Unlike most other environmental statutes, it did not envision that states would assume responsibility to run the program. Waste site cleanup was viewed as requiring large sums of money and highly specialized technical capabilities that the states were unlikely to possess. It was also viewed as a relatively short-term program covering a manageable number of sites (400 to 500 nationwide). Thus, the law established a national pool of money (the Superfund), and EPA implemented the law by selecting contractors capable of acting anywhere in the United States that a site posed a hazard to human health and the environment. In the years since CERCLA was enacted, the goal of cleaning up the nation's priority waste sites has stretched into the indefinite future, and states have come to play an increasingly important role in waste site cleanup. The growing capabilities of the states have been recognized by EPA and by the Congress, but not yet to the extent that states would prefer. Thus, the issue of the state role in Superfund cleanups is one that Congress is considering as it debates Superfund reauthorization. During hearings in the 103rd, 104th, and 105th Congresses, a great many state officials, including Governors and those who implement cleanup programs, have testified on the broad range of issues that concern them about the current federal program and potential changes to it. In the 103rd and 104th Congresses, the leading legislative proposals responded to many of these issues, and a consensus appeared to exist in support of more state responsibility for the program. Consensus was less apparent on a number of other issues, such as liability standards, and no legislation was enacted. State issues are again prominent in the 105th Congress, as House and Senate committees are actively considering a number of proposals.1 This report discusses Superfund issues of interest to states, particularly the issue of states assuming greater program responsibility. In addition, it identifies and discusses several other reauthorization issues in which states have interest because they have implications for state-run hazardous waste cleanup or environmental protection. Current State Authority and Programs Under CERCLA, as amended by the Superfund Amendments and Reauthorization Act of 1986, state authorities with respect to the federal program are concentrated in three areas.
Despite having a limited substantive contribution to remedy selections, states must nevertheless make significant financial contributions to remedial actions that are funded through the Superfund. Under Section 104(c)(3) of CERCLA, for fund-financed cleanups in which EPA has the lead, the state must agree to pay 10% of the cost of the remedial action, including all future maintenance. States do not pay, however, where site cleanup is accomplished by responsible parties. If the state or a political subdivision of the state operated the site, the state must agree to pay 50% of the Superfund-financed response costs. At NPL sites, state involvement is a patchwork, with state responsibilities ranging from performing most response activities under cooperative agreements to simply providing the requisite state funds at the time of the construction cleanup remedy. States have assumed lead responsibility for about 10% of the 1,300 sites on the NPL. At many other sites, states perform certain cleanup activities under EPA's overall direction. The scope of national efforts to remediate hazardous waste sites is only partly reflected by the federal Superfund program. While CERCLA covers all releases of hazardous wastes from contaminated sites, the EPA-administered Superfund program does not address the full universe of sites subject to CERCLA liability. The 1,300 sites on the federal NPL represent the worst sites nationwide in terms of technical complexity, threats to human health and the environment, and cost. In addition, many states have developed programs to address sites that do not present enough of a risk to be cleaned up under the federal program, but nonetheless require some cleanup by states, localities, and responsible parties. States estimate that there are approximately 30,000 such sites in the nation.4 According to state officials, states have assumed the primary responsibility for remediating contaminated Sites, accounting for 75% of the national total.5 States have taken the lead, they say, since EPA has not had the resources to lead the cleanup of the more numerous non-NPL sites. They cite statistics contrasting the large number of sites cleaned up under state programs, compared with federal CERCLA sites for example, 270 state sites in New York, compared with 16 NPL sites there; and 200 state program cleanups in Illinois compared with 5 NPL sites. However, such numeric comparisons are somewhat deceiving, because the state non-NPL sites are in general much less complex technically and less costly. State Cleanup Policies and Remedy Selection. CERCLA imposes fairly rigorous standards for remedial actions at NPL sites. In general, cleanups must assure protection of health and the environment and be cost-effective. It requires that cleanups meet the standards of federal and state environmental laws. The law specifically requires cleanups to meet Safe Drinking Water Act standards and Clean Water Act water quality criteria. It contains two preferences for cleanup: (1) choosing permanent remedies to reduce the volume, toxicity and mobility of hazardous substances and (2) favoring treatment of wastes, as opposed to containment or burying wastes in landfills. State programs have matured from the site discovery and assessment stage, in the late 1 980s, to deciding what cleanup standards to apply.6 Early on, cleanup standards were determined ad hoc and site-by-site; most states used EPA guidance predominantly. Now, states continue to use EPA guidance, but as a measure of their development, by 1995 24 had adopted specific cleanup standards which in some cases are more stringent than federal requirements. States with the most active programs use an array of criteria to determine cleanup levels, generally involving health-based risk assessment, evaluation of cost-effectiveness, and land use factors. Fifty states use drinking water standards and 48 use water quality criteria, as is required by CERCLA for NPL sites, but, in addition, 37 states use groundwater standards, and 27 use soil standards. The use of groundwater and soil standards is notable because they have been developed by the states themselves, as no similar federal standards exist. State Enforcement. The legal authority for state cleanup programs vanes. Some have enforcement authority in their cleanup fund laws; others rely on enforcement in general environmental laws, hazardous and solid waste laws, and groundwater laws. The most important enforcement question under these laws is who is liable for cleanup. Most states follow the federal lead in CERCLA of holding a wide spectrum of responsible parties liable, including owners, operators, generators, and transporters. Again following the federal model, most states (43 in 1995) impose retroactive liability under state cleanup law, that is, holding parties responsible for cleanup of hazardous substances disposed of before a specified date, such as when the program was enacted. The majority of states also have followed the federal model of imposing strict, joint and several liability. Thus, 41 states impose a strict liability standard, which means that the enforcement agency does not need to prove that the responsible party committed a negligent, reckless, or intentionally wrongful act. Joint and several liability is the cornerstone of the CERCLA program and of 37 state programs, as well. The joint and several liability standard means that each company that contributed in any way can be held entirely responsible, unless it can show that its contribution was distinct and divisible. Five states use a proportional liability or causation standard which requires government to allocate liability in shares among the responsible parties. Proponents of this standard say it is fairer, because it holds parties responsible for problems they create and thus maintains the concept of "polluter pays." Finally, a few states use a combination of joint and several and proportional liability. Natural Resource Damages. CERCLA provides for the restoration or replacement of natural resources that have been injured, lost, or destroyed by the release of hazardous substances. The liability standard for natural resource damages is strict, joint, and several, but CERCLA also limits liability in several ways. First, Section 1 07(f)( 1) provides that there is no liability where the release of a hazardous substance and damages resulting from the release occurred wholly before Dec.11, 1980 (the date of CERCLA's enactment). It also provides a $50 million cap on awards for damages and imposes a 3-year statute of limitation for claims for natural resource damages.7 In addition, as of 1995, 28 states had independent authority to recover natural resource damages; half of these have recovered or are now seeking to recover natural resource damages for contaminated sites. Thirteen (including some with their own legal authority) have sought to recover natural resource damages specifically under federal law. State Response Funds. An important element of state capabilities is the existence of funding mechanisms to support the state cleanup programs. As of 1995, all states but two had established a state response fund (state Superfund) which allows the state to investigate, plan, design, and conduct emergency response and remedial actions where necessary, or where responsible parties are unavailable or unwilling to participate. Most states also use state Superfund monies to pay the CERCLA matching cost share for NPL sites. States use various funding sources: appropriations; bonds; fees and taxes on the generation, transport, treatment or disposal of hazardous or solid waste; penalties; and cost recovery. RCRA Corrective Action. In addition to state participation in the CERCLA program, 33 states operate cleanup programs under the corrective action provisions of the Solid Waste Disposal Act (commonly referred to as RCRA). Under RCRA, parties that treat, store, or dispose of certain hazardous materials are required to obtain a permit and operate under its requirements. If a facility's waste disposal practices contaminate a site, RCRA requires that "corrective action" be taken to clean up the site. These actions closely parallel remedial actions under CERCLA, except that RCRA's authority is used to direct cleanups at active hazardous waste management facilities, rather than closed or abandoned sites. Unlike CERCLA, RCRA did envision state authorized programs, from the time of its enactment in 1976. EPA plays an oversight role in authorized states and operates programs in those states not authorized to do so. Both RCRA and CERCLA address the cleanup of radioactive and non-radioactive wastes at Department of Energy (DOE) facilities.8 Much of the radioactive waste at DOE facilities is "mixed" with non-radioactive hazardous waste which is subject to RCRA requirements. RCRA requires facilities to include corrective action plans for releases of hazardous wastes and the hazardous part of radioactive mixed wastes in their permits. CERCLA requires that the most highly contaminated federal facilities listed on the NPL enter into interagency cleanup agreements with EPA; states are parties to these agreements pursuant to their delegated RCRA authority. The Federal Facilities Compliance Act of 1992 (P.L. 102-386) amended RCRA to clarity that federal agencies are subject to fines and penalties assessed by the federal government, states, or localities for violations of RCRA. Voluntary Cleanup and Brownflelds Programs. Unlike the federal government, states use voluntary cleanup programs as an additional tool to address the approximately 30,000 sites identified as needing some cleanup attention. These programs, which vary considerably, allow private parties to investigate and clean up sites, using less extensive administrative procedures (including less public involvement) and less rigorous cleanup (tailored to the risks and conditions at individual sites), and to obtain some relief from future state liability for past contamination. This relief from liability is considered to be very important to private parties as an inducement to participate in voluntary cleanups and, thus, to states as a means of promoting and encouraging the programs. The sites tend to be low-risk sites that would not have been addressed under other federal or state cleanup programs for some time, if at all, but generally where contamination has hindered redevelopment.9 Such programs help states meet remediation objectives, while also achieving business development objectives. Thirty-five states have established voluntary cleanup programs, according to GAO. States encourage voluntary cleanup in various ways: for example, 20 provide some form of enforcement or liability waiver; nine states issue "no further action" letters and take the site off of the state list; seven provide financial incentives (loans, tax credits, or caps on costs); and two provide technical assistance. There are two approaches to defining eligibility for voluntary programs: by the site to be remediated (e.g., sites that fall below a certain threshold or threat level), or by the person or entity applying to participate (e.g., owners of the property or potential buyers). States rarely use state funds to pay for oversight of projects on which volunteers have the lead. Generally, they ask participants to reimburse the state for oversight costs, through direct payments (13 states) and/or fees (14). States have been targeting brownfields, or abandoned industrial sites, through a variety of means. Some have focused specifically on brownfields, distinct from the larger number of sites eligible for voluntary cleanups, while several address brownfields through their voluntary cleanup programs.10 Congress has provided funding to support state voluntary cleanup and brownfields programs. EPA provided $10 million, earmarked in FY1997 appropriations, to encourage development of state voluntary programs. Congress also appropriated $36.7 million in FY1997 specifically for brownfields activities, including grants for site assessment and redevelopment planning and grants to communities to support revolving loan funds to help finance the actual cleanups. For FY 998, beginning Oct. 1, 1997, Congress agreed to fund brownfields activities at the $85 million level requested by the Administration. EPA recognizes the role that state voluntary programs can play in the overall hazardous waste cleanup program and has attempted to encourage these state efforts through recent administrative reforms and funding. EPA has also sought to develop guidelines for state voluntary programs; final draft guidance containing criteria to determine what state programs would be eligible for federal assistance was issued in September.11 While EPA has already entered into memoranda of agreement with 11 states clarifying their roles at state voluntary cleanup sites, some states believe that the guidance does not take into account the wide range of state voluntary programs that exist. EPA has tried to be flexible in the guidance, providing general criteria on community involvement, protectiveness of cleanups, and oversight provided by states. Nevertheless, some states may still believe that the federal guidance is overly restrictive. Issues Potentially Affecting States in CERCLA Reauthorization State Role. The most important reauthorization question for states is whether the law will be modified to allow them to assume more responsibility for NPL sites. State officials strongly desire to have an enhanced role in implementing CERCLA. They contend that they have demonstrated the capability to effectively run a Superfund program and that cleanup is basically a land-use problem which has traditionally been a state and local government responsibility. In their view, it would be more efficient and cost-effective if states that wanted to could assume more responsibility to operate the lull CERCLA program. Allowing states to do so, they say, would eliminate much duplication and overlap between EPA and states. For example, because EPA reserves the right to enforce the remedy selection even at NPL sites where the state has been designated the lead agency, states say there is duplication of effort by EPA and state agencies overseeing cleanup on the same sites. One result is disputes about the remedy and cleanup standards which produces a slower, more cumbersome process overall. Further, in the view of states, by retaining the final decision authority, EPA effectively undercuts the states' ability to achieve cooperation and compliance from responsible parties.12 State officials have discussed this issue for some time and have debated several approaches, including program delegation, authorization, or a hybrid. Should states be delegated the responsibility to administer the federal program? Under a delegation arrangement, a state operates the program using federal authorities. In the view of many states, the delegation model, which characterizes the Clean Water Act and RCRA Subtitle C (hazardous waste, including corrective action) programs, entails considerable EPA bureaucracy at the regional level to oversee the states' implementation. Many states see the delegation model as one in which the federal government dictates what state programs look like. Alternatively, should states be authorized by EPA to operate state programs in lieu of the federal program? Under an authorization model, states would be able to utilize state cleanup laws and liability standards in lieu of CERCLA if they are equivalent to federal law. State qualification is based on performance rather than a process of complying with federal program criteria. The authorization approach, they say, would allow states to fully harmonize standards and requirements applicable both to NPL and non-NPL sites. It is the approach which characterizes approval of state leaking underground storage tank (LUST) programs under RCRA Subtitle I. What states say they favor is enough flexibility in CERCLA to allow any state to choose which approach, or combination, suits them. Thus, for states which do not have their own independent cleanup laws (11 states in 1995, according to the Environmental Law Institute), delegation of federal authorities might be most appropriate, while states with active cleanup programs and specific legal authority could choose an authorization approach allowing them to utilize state laws in place of federal authorities, so long as state requirements are no less stringent. Ideally, states also would like the flexibility to choose lull or partial program assumption, as well. For example, a state could take on responsibility for some NPL sites, but not all, within its jurisdiction (sites below a certain threshold of risk or threat level, for example). Or, a state might take on responsibility for certain steps in the cleanup process at NPL sites, while EPA would remain responsible for other phases (this would be similar to current EPA-state agreements but would provide statutory definition). The overall question for policymakers is, so long as federal dollars are used by states, whether for site cleanup or program administration, how should a goal of giving states more responsibility be balanced against a need for criteria and oversight to assure that those funds are used efficiently and consistent with statutory objectives? Community groups have been actively involved in the Superfund program, since proximity to sites makes contamination and cleanup a very local, immediate issue to them. Most community groups and EPA officials generally support more state responsibility to implement CERCLA. They recognize the enhanced capabilities that a growing number of states have demonstrated, and they also recognize that EPA lacks the resources to complete more than a fraction of the contaminated sites nationwide which remain to be addressed. However, many of these stakeholders believe that states should not be granted federal program authority if they lack the legal authority or adequate financial, personnel, and technical resources to implement the program. They also are concerned that if the approval threshold is too low in terms of criteria that states must meet to qualify, states with minimal qualifications will be allowed to implement the federal program and potentially with little oversight. One key issue for community groups is to ensure that state programs provide adequately for public participation; All rights of public participation are essential, whether a state or the federal government is in charge. In their view, the law should specify' public participation procedures as a necessary criterion for authorizing or delegating the program to states. Otherwise, they say, communities and EPA must simply trust that state programs contain adequate community involvement provisions without any way of verifying that such provisions will be included. Further, EPA and community groups oppose proposals that would approve delegation or authorization automatically or by default if EPA fails to meet deadlines for review. Community groups also want EPA to take into account whether a state has the political will to pursue cleanup by potentially responsible parties who may be economically and politically significant within the state. However, it is unclear what kinds of criteria could be incorporated into law or regulations to reflect this concern in EPA's decision process effectively. A degree of tension exists among some stakeholders about providing a backup role for EPA, after delegation or authorization. States favor limited EPA involvement, restricted to periodic review of state performance but not site-by-site oversight or site-by-site withdrawal of delegation. Yet even some states acknowledge that without CERCLA's political and financial muscle many states will face enormous pressure to relax cleanup goals in the name of short-term cost savings.13 Community groups say that the public needs an effective federal fallback if states fail to carry out their environmental responsibilities. Thus, they oppose proposals that would require EPA to obtain a declaratory judgment by a court to determine that a state has not made reasonable progress at a site covered by a delegation agreement. EPA also would like to be able to move more quickly, in such a circumstance. EPA is on record favoring delegation to qualified states. The agency, too, advocates flexible arrangements, since no single model fits all states. For example, EPA supports allowing states to seek site-by-site delegation, as an alternative to assuming the lull federal program. EPA officials have testified that they favor a delegation process that is less onerous than RCRA delegation but not as simplistic as LUST authorization, which essentially involves a self-certification by a state of its capability to administer the underground storage tank program.14 Some have proposed, but EPA does not support, allowing states to self-certify their ability to assume the federal program, since self-certification would give EPA little opportunity to review and verify the state's documentation. Liability. Liability issues are a particularly good illustration of a topic where changes to CERCLA would impact not only remediation at NPL sites but also the approach taken by states to cleaning up non-NPL sites. States contend that modifying liability rules at the federal level, in terms of retroactivity or broad categorical exemptions, could lead to the inequitable situation of federal NPL sites being held to different standards than state sites. Most states believe that retroactive, strict, joint and several liability should be retained in the federal law, even though a number of state programs are using alternative approaches. Some reform proponents have proposed that the law's liability standard should only apply to contributions to a site that occurred after 1980, when CERCLA was enacted. Proponents of this change (many industry groups) say it is a matter of equity, since most who contributed wastes to sites before 1980 did so legally and without knowledge that they could subsequently be held responsible for cleanup. However, states say that without retroactive liability at NPL sites, most of those sites won't be cleaned up. In many cases, pre-1980 contributions to a site represent all of the hazardous waste that is present. States cannot afford to finance all of the cleanups that would become a state responsibility due to the loss of retroactive liability in CERCLA, they say. Further, states oppose a proposal made by some that would modify CERCLA so that when a site has been released from federal liability, state liability laws would also be preempted at NPL sites. States oppose any such preemption of their liability laws, which could create inconsistency in application of state law at sites throughout the state. They also fear that it would create pressure from potentially responsible parties to be added to the NPL because the federal liability system could be viewed as more favorable.15 At the same time, there is little controversy among states or other interest groups about providing some liability exemptions in CERCLA in order to address fairness issues, speed the cleanup process, and potentially reduce transaction costs. For example, many persons agree that it would be appropriate to exempt de minimus or de micromis contributions to a site (such as parties who contributed less than 100 gallons or 200 pounds of waste) or certain small business categories for whom the burden of being a party to a Superfund cleanup is costlier to society than the benefit of having that party share in the cleanup costs. Likewise, most states support the concept of a "municipal carve-out" provision which would relieve municipalities or counties from some liability at landfill sites (for example, by limiting their liability to a specified percentage of total response costs), on the theory that they transport municipal wastes to landfills as a service, not for profit. There is less consensus on another proposal, to exempt or limit the liability of generators and transporters of any waste at "co-disposal sites" (generally meaning landfills that contain municipal solid waste or sewage sludge and hazardous industrial waste) because of the excessive transaction costs of requiring cleanup where hundreds of parties are potentially responsible. EPA, using authority in Section 122(g) of CERCLA, has administratively removed thousands of small volume waste contributors from the existing liability system. Nevertheless, EPA believes that a broad exemption for co-disposal sites would allow some parties with large liability to avoid all cleanup responsibility. The issue is how to draw a line between liability relief that is widely agreed upon and relief that allows true contributors to a site to evade responsibility, thus forcing the public-at-large to bear cleanup costs. Standards and Remedy Selection. On the question of cleanup standards, states have consistently said that NPL sites should be required to meet state standards, where they are more stringent than federal requirements. First, states say, it is a matter of equity that NPL and non-NPL sites should be held to the same standard of environmental protection. Second, many states say they would not take on the responsibility of the federal program (authorization or delegation), if they could not insist on application of state standards. In fact, CERCLA generally does not preempt more stringent state standards (except for federal facilities), but Section 121 requires states to pay the incremental cleanup cost that results. States argue that, under a revised approach giving states more program responsibility, this effectively would preempt a state's ability to select remedies under its own authority. EPA concurs with states on this issue. States would prefer that either Superfund or responsible parties pay the difference, but industry groups disagree, arguing that if states impose more stringent liability or cleanup than federal standards, they should bear any additional costs or at least be barred from recovering costs from responsible parties. Because a large number of state cleanup laws and programs allow for remedy selection based on an analysis of the prospective use of the property, states tend to favor similar flexibility in CERCLA, what some call outcome-based regulation. Thus, many state programs do not necessarily require or favor permanent remedies at a site or cleaning up groundwater to meet drinking water standards, if groundwater is not designated for such uses. In the area of risk-based decision making, states believe that their programs can serve as a good example for the federal program. Other state officials view the preference for permanent remedies under current law useful for two reasons: it requires that permanent remedies be seriously considered, before a remedy is selected, and if a permanent remedy is more costly but is justified by increased protectiveness, it should be selected. Cost considerations are important but should not override protecting human health and the environment.16 Updating Selected Remedies. A related issue is when it is appropriate to reopen and review final decisions on cleanup plans, the Record of Decision (ROD) in which the remedial alternative is selected. Section 121(c) of CERCLA requires EPA to review completed remedial actions at least every five years to assure that the remedy continues to protect human health and the environment.17 The periodic review is intended to assure that remedial actions are upgraded to take advantage of developing technologies. Some recent legislative proposals would require EPA to reopen final RODs to conform to new cleanup standards or would allow responsible parties to request a reopener of the ROD and allow liable parties to select remedial alternatives. EPA's position is that changes in the law of that sort would severely disrupt and delay the cleanup program, potentially requiring the agency to revisit 1,500 final decisions. At the same time, EPA agrees that it is appropriate to review some decisions to consider new technologies or cost, and the agency is doing so now. To modify the law on this issue, EPA says, Congress should specify a threshold or criteria as the basis for reopening a ROD. Otherwise, too many parties could engage EPA in extended discussions for the sake of delaying actual cleanups.18 State officials, too, recognize that some RODs should be reopened because of cost considerations or technical impracticability. Like EPA, they are concerned about a large number of Petitions to review remedial decisions placing an overwhelming burden on them. Governors believe that they should have the final decision, approval or veto, on whether to approve such a petition.19 Federal Facilities. If states are to assume more responsibility for NPL sites, most believe that CFRCLA should be clarified to allow states to apply their own standards and requirements to federal facilities, just as they would to sites where private parties are involved. It is inequitable, states say, for there to be two regulators of federal facility cleanup (federal and state governments). What is needed, they contend, is a complete waiver of sovereign immunity which prohibits states from enforcing state environmental regulations against federal facility cleanups. This is a longstanding issue in many states, especially in the West. In their view, current language in Section 120(a) of CERCLA does not provide as clear a waiver of sovereign immunity as does language in the Federal Facilities Compliance Act of 1992, but that law does not apply to CERC LA. Moreover, because EPA is limited in its ability to enforce against another federal agency, states believe that it is more appropriate to allow states to oversee federal facility cleanups than for EPA to do so, as some have proposed. Some persons oppose a complete waiver of sovereign immunity, arguing that since federal facilities were built with federal appropriations, the need to clean up those facilities should be balanced by Congress against other federal priorities through the appropriations process. According to this view, since states do not have a direct financial stake in cleaning up these facilities (as they often do with private sites), states should defer to the federal facilities themselves on remedy selection, or they migh1i be tempted to require excessively expensive remedies.20 States disagree with this view and say they are fully aware of the fiscal impacts of federal facility cleanup obligations.21 Natural Resource Damages. Concerning natural resource damage provisions of the law, states have more limited concerns and recommendations for clarification. For example, they recommend that the statute of limitations be clarified, since it has been the source of litigation, so that it applies for three years from the date of completion of a natural resource damage assessment. Under current law, the general rule is that an action for natural resource damages must be brought within three years of the later of the discovery of the loss and its connection with a release or the date on which federal regulations are promulgated. States favor the availability of Superfund monies to fund natural resource damage assessments, because they are a costly up-front cost which is a strong disincentive to recovering for damages to state resources. Similarly, states believe that all costs associated with performing assessments and recovering these damages should be recoverable from liable persons. Current law places a $50 million cap on awards for damages to natural resources, unless the release results from willful misconduct or willful negligence.22 Capping the NPL. Some have proposed that, to limit future federal exposure to pay for cleanups, the NPL should be capped, either at some absolute number or by allowing a fixed number of sites to be added annually. States oppose capping the NPL, arguing that to do so would result in more sites becoming their responsibility to address. NPL sites are of a caliber, cost, and complexity that exceed states' financial resources, they say, and states could soon become overburdened. Community groups oppose capping the NPL for similar reasons. The General Accounting Office estimated that a cap could force states to accept responsibility for 1,400 to 2,300 sites with estimated cleanup costs ranging from $8.4 to $19.9 billion.23 State Voluntary Cleanup Programs. A number of current state programs provide relief from future liability for Site contamination, as an incentive to volunteers. The primary concern of states with regard to federal policy in this area is that CERCLA should state clearly that volunteers are released from federal liability. Such an assurance would remove considerable uncertainty for volunteers (as well as for lenders and the real estate industry), including vulnerability to third party litigation. According to a Maryland official, "Nothing is more important than federal liability protection for parties that have gone through a state voluntary cleanup process." 24 EPA's final draft voluntary cleanup guidance, issued in September, indicates that, for states that establish voluntary programs consistent with the guidance and enter into agreements with EPA on roles and responsibilities, "EPA will not exercise cost recovery authority and does not generally anticipate taking removal or remedial actions" under CERCLA, except under limited circumstances. Such circumstances include if a release from the site presents an imminent and substantial endangerment to public health, welfare, or the environment; newly discovered or changed circumstances at the site demonstrate that the voluntary cleanup was not protective enough; or if the state requests EPA to take action.25 States would generally prefer that a broad release from federal liability be provided in CERCLA itself, rather than in the form of EPA guidance, since a statutory provision would be more permanent and definitive, while guidance can be changed by EPA administrative action. Further, they say, EPA-state memoranda of agreement on voluntary cleanup programs will not adequately resolve questions that many property owners will continue to have, particularly whether the federal government will second guess state actions.26 Future Funding and a Continuing Federal Role. Giving states greater responsibility to implement the federal Superfund program will not diminish the need for federal funding to assist with cleanups or eliminate the federal role entirely. First, in states that do not choose to implement the Superfund program or program components, EPA will still be responsible for administering the program. Even where states do assume more responsibility, there will be a continuing federal role with assistance and funding. States see a need for a continuing federal role to address large, complex sites; to provide emergency response, when needed (the Administration agrees); to do research; and to provide backup to states (for cost recovery and to encourage compliance by responsible parties). Some may see enhanced state roles as a way to achieve significant federal budgetary savings in the Superfund program, but it is more likely that budgetary savings will be small and at the margins (mainly in the area of transaction costs, for example). Because of the likely diversity of state programs that would result, it is difficult to identify areas for which EPA would not have some continuing involvement and might otherwise lead to budgetary savings if the federal government had no regulatory or programmatic role. States believe that under a reformed program, with states more prominent and taking the lead, costs and inefficiencies that currently result from federal-state overlap and duplication will decrease, but overall cost of the program may not. As with other environmental programs, states are concerned about the potential for delegating program authority without adequate funding. States believe that they need program grants to cover overall program administration (these grants would be augrnented as responsible parties reimburse states administering the program for their oversight costs, as they do now with EPA). Today, about three-quarters of states receive grants intended to help build state capacity for Superfund; program grants would be similar. In addition, states will continue to need site-specific funding where no responsible parties are involved or where there are orphan shares at a site because different standards of liability are being utilized (e.g., liability waivers or changes regarding retroactivity). Row to allocate funds that states would use for response and remediation activities is less clear. Among the possible approaches are distribution in the form of block grants, based on a simple formula such as population, or allocation of funds based on the number of NPL sites in each state, so that states with larger numbers of sites would receive a larger percentage of the total. Another approach might be to provide grants to states on a facility-specific basis, depending on the extent of program authorities for which the state were assuming responsibility. A final funding issue concerns changes to the state cost-share requirements of CERCLA, which currently require states to pay 10% of the cost of the remedial action at federal-lead sites and all future maintenance. If the state or a political subdivision of the state previously operated the site, the state must agree to pay 50% of the Superfund-financed response costs. A number of legislative proposals would lower the state cost-share to 10% for both remedial actions and operations and maintenance, and states support this change. EPA favors a different approach, requiring a fixed 15% state cost share for state-lead response activities, including operations and maintenance. Beyond that, EPA has concerns about changing the state cost share more broadly, since doing so would require additional costs to be borne by the federal Superfund. These additional costs could be $90 to $100 million per year, EPA has estimated.27 The views and recommendations of states are important to Congress, as it considers legislative proposals to strengthen and reform CERCLA. Witnesses representing states and their hazardous waste management agencies have been prominently included at Congressional oversight and legislative hearings since the 103rd Congress, and the record of those hearings shows support for many of the states' positions. Nevertheless, it is unlikely that Congress will accommodate all of the states' policy concerns, since a number of them are at odds with concerns of other stakeholder groups - retroactive liability, for example, which most industry groups seek to eliminate, but states would retain. In major areas such as liability, it is unclear for now how Congress will craft future policies when faced with competing and differing perspectives presented by important constituencies. 1 For additional information, see CRS Issue Brief 97025, "Superfund Reauthorization Issues in the 105th Congress." 2 The National Priorities List, compiled by EPA pursuant to CERCLA Section 105, identifies uncontrolled hazardous substances releases from abandoned sites in the United States that are priorities for long term evaluation and response. 3 de Saillan, Charles. "Superfund Reauthorization: A More Modest Proposal." Environmental Law Reporter. Vol.27, May 1997. p.10208. 4 Environmental Law Institute. AN ANALYSIS OF STATE SUPERFUND PROGRAMS: 50-STATE STUDY, 1995 UPDATE. Washington, DC, 1996. pp.12-14. 5 Testimony of Mary Gade, director, Illinois Environmental Protection Agency, in U.S. House of Representatives. Cornmittee on Transportation and Infrastructure. Subcornmittee on Water Resources and Environment. Superfund Reauthorization. Hearings, 105th Congress, 1st Session. (105-8) p. 78. (Hereafter House Transportation 1997 Superfund hearings) 6 Information on state programs in this report comes primarily from the 1995 analysis of state Superfund programs prepared by the Environmental Law Institute (ELI). ELI completed earlier versions of this report in 1989, 1990, 1991, 1993, thus documenting changes in state activity. 7 de Saillan, Charles. "Superfund Reauthorization: A More Modest Proposal." p.10209 8 Advisory Committee on External Regulation of Department of Energy Nuclear Safety. Improving Regulation of Safety' at DOE Nuclear Facilities, Final Report. December 1995. Appendix D. pp. D4-D8. 9 U.S. General Accounting Office. "State Voluntary Programs Provide Incentives to Encourage Cleanups." GAO/RCED-97-06. April 1997. 10 For additional information, see CRS Report 97-731 ENR, "Superfund and the Brownfields Issue," July 22, 1997. 11 62 Federal Register 47495-47506, Sept. 9, 1997. 12 Testimony on behalf of the Association of State and Territorial Solid Waste Management Officials, in U.S. House of Representatives. Subcommittee on Water Resources and Environment. Superfund Reauthorization. Hearing, June 13, 1995. l04th Congress, 1,1 Session. (104-22). pp.115-116. 13 Testimony of Langdon Marsh, director, Oregon Department of Environmental Quality, in House Transportation 1997 Superfund hearings. p.156. 14 Testimony of Timothy Fields, Jr., deputy assistant administrator, Office of Solid Waste and Emergency Response, U.S. EPA, in U.S. House of Representatives. Subcomnittee on Commerce, Trade, and Hazardous Materials. Superfund Reauthorization (Part 2). Hearings, 104th Congress, lst session, 1995. (Serial no.104-30) p.251. (Hereafter House Commerce 1995 Superfund hearings) 15
Statement of Honorable E. Benjamin Nelson, Governor of Nebraska. U.S. Senate. Committee on Environment and
Public Works. Hearing on Superfund Reform,
Sept. 4, 1997. Unpublished. Available at 16 Testirnony of Jay Manning, division chief, Ecology Division of the Washington State Attorney General's Office, in House Transportation 1997 Superfund hearings, p.145. 17 This requirement applies only to sites at which hazardous substances have been left in place. 18 Testimony of Carol Browner, administrator, U.S. Environmental Protection Agency, in U.S. Congress. Senate. Committee on Environment and Public Works. Subcommittee on Superfund, Waste Control, and Risk Assessment. Superfund Cleanup Acceleration Act. Hearing on S.8, March 5, 1997. 1O5th Congress, 1st session. (S. Hrg. 105-60) p.35. (Hereafter Senate Environment 1997 Superfund hearing) 19 Testimony of Richard Gimello, assistant commissioner for site remediation, New Jersey Department of Envirornmental Protection, on behalf of National Governors Association, in Senate Environment 1997 Superfund hearings, p. 39. 20 Testimony of J. Winston Porter, president, Waste Policy Center, in House Commerce 1995 Superfund hearings, p. 155. 21 Testimony of Gale Norton, attorney general, State of Colorado, in House Commerce 1995 Superfund hearings, p.249. 22 Testimony of Langdon Marsh, in House Transportation 1997 Superfund hearings, pp.149-150. 23 U.S. General Accounting Office. "Impacts on States of Capping Superfund Sites." GAO/RCED-106R, March 1996. 24 Testimony of Jane Nishida, secretary, Maryland Department of the Environment, in House Transportation 1997 Superfund hearings, p.165. 25 62 Federal Register 47495, Sept. 9, 1997. 26 Testimony of Mary Gade, in House Transportation 1997 Superfund hearings, pp. 91- 92. 27 Testimony of Carol Browner, Senate Environment 1997 Superfund hearings, p. 359. |
CRS Reports Home
|
||
 |
National Council for Science and the Environment 1725 K Street, Suite 212 - Washington, DC 20006 202-530-5810 - info@NCSEonline.org |
 |