Superfund Reauthorization in the Senate:
A Summary of S. 1285

Mark Reisch
Environment and Natural Resources Policy Division

December 29, 1995

96-25 ENR

CONTENTS

Summary
Title I - Community Participation
Title II - State Role
Title III - Voluntary Cleanup .
Title IV - Selection of Remedial Actions
Title V - Liability Allocations
Title VI - Federal Facilities
Title VII - Natural Resources Damages
Title VIII - Miscellaneous
Title IX - Funding

SUMMARY

The Superfund reauthorization vehicle in the Senate is S. 1285, introduced on September 29, 1995, by Senator Bob Smith, chairman of a subcommittee of the Environment and Public Works Committee.

Title I authorizes the establishment of Community Response Organizations in Superfund locales, and increases the Technical Assistance Grants (TAGs) available to citizen groups from $50,000 to $100,000.

Title II authorizes States to carry out all or part of EPA's CERCLA authorities, including remedy selection. States may de-list existing National Priorities List (NPL) sites, and (under Title VIII) may veto the listing of a new NPL sites. Grants to the States from the Fund are provided.

Title III authorizes grants to States to establish and expand voluntary cleanup programs. Interest-free $200,000 loans to local governments to promote brownfield redevelopment are provided. It also provides protection from liability for innocent land purchasers, lenders, lessors, and owners of property next to NPL sites.

Title IV requires that remedies be selected that are the most cost-effective means of protecting human health and the environment. It effectively eliminates applicable or relevant and appropriate requirements (ARARs) and the current-law preference for permanence and treatment, allowing all cleanup options at a site to be considered. It requires the assessment of actual or planned future uses of land and water at the site in selecting the remedy.

Title V establishes a mandatory non-binding liability allocation process for multi-party sites. Parties that accept the allocator's finding may receive a 50-percent tax credit for their pre-1980 cleanup costs if they stay on site to conduct the cleanup. De micromis parties (less than 200 pounds or 100 gallons of material containing hazardous substances) are exempt from liability, and de minimis parties (less than 1-percent share) may receive an early settlement. Response action contractors receive additional protection from liability.

Title VI allows qualified States to exercise EPA's authorities at Federal facilities on the NPL. A Federal facility may be used for research, development, and innovative technologies.

Title VII redefines "natural resource" for purposes of CERCLA; eliminates non-use damages; and eliminates all lost use damages for pre-1980 activities.

Title VIII contains miscellaneous provisions, including a limitation of 90 additional sites on the NPL, and an increase in the authority for emergency response actions from $2 million to $4 million, and the time limit from 1 year to 2.

Title IX authorizes appropriations.

On September 29, 1995, Senator Bob Smith, chairman of the Subcommittee on Superfund, Waste Control, and Risk Assessment of the Environment and Public Works Committee, introduced S. 1285. The bill is an extensive reauthorization of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA, or Superfund). The provisions of S. 1285 are summarized below.

TITLE I - Community Participation

Currently, CERCLA requires only that there be a public notice and comment period before the adoption of many emergency removal actions and all remedial (cleanup) actions. Technical assistance grants (TAGs) of $50,000 are available to the public.

Title I of S. 1285 authorizes the establishment of Community Response Organizations (CROs) near sites on the National Priorities List (NPL), and near sites on State registries that are proposed for the NPL. In addition to local residents, a CRO would represent virtually all other interested parties in the community, including the owner of the polluting facility. CROs would serve as conduits of information to and from the community, and represent it during the remedial action planning and implementation process.

CROs are the preferred recipients of technical assistance grants to obtain aid in interpreting information. As in current law, grants are for $50,000, but the bill allows renewal for up to $100,000. TAGs are also made available to groups at sites on State registries that are proposed for the NPL but not yet listed. The bill eliminates the fund-matching requirement, and authorizes early disbursement of up to $5,000 of the grant. Total funding is limited to 2 percent of Superfund appropriations Grants may not be used to collect field data. The bill directs EPA to ensure that communication about risks conforms to specified standards of accuracy and intelligibility to the lay person.

TITLE II - State Role

At present, States are involved in the selection of remedies and may enter into cooperative agreements with EPA to carry out most cleanup activities on a site-by-site basis. However, final remedy selection must be done by EPA.

Under the bill, States may apply to EPA to be delegated one or more of six specified categories of Federal CERCLA authorities at non-Federal facilities in the State, on a site-by-site basis. (State authority at Federal facilities is addressed in Title VI of S. 1285.) The categories are:

• - site investigations, evaluations, and risk analyses, including remedial investigations;
• - development of alternatives and remedy selection, including feasibility studies, and issuance of records of decision;
• - remedial design;
• - remedial action, and operation and maintenance, including removal actions;
• - liability allocation, including issuance of final settlements; and
• - enforcement, including issuance of section 106 administrative orders, cost recovery, and issuance of civil penalties.

The State has sole authority to exercise the delegated powers, but it may not select a costlier remedial action than would have been chosen by EPA unless the State pays the incremental cost. State-issued 106 orders are subject to judicial review.

Delegated States may remove all or part of a designated facility from the National Priorities List, and EPA may not relist any facility so removed. (Title VIII requires new listings to be approved by the State.) EPA shall perform annual audits of a State's use of funds, may withdraw delegated authority, may take response actions and perform other authorities not delegated to a State, and may perform emergency removals at delegated sites if the State fails to act.

Facility-specific and non-facility-specific grants to delegated States are provided from the Superfund. Grant money may not be used to pay the State share of response costs.

TITLE III - Voluntary Cleanup

There is no specific voluntary cleanup authority in CERCLA at present. However, EPA has initiated administratively its Brownfield pilot program which provides two-year grants of $100,000 annually to communities to clean up idle industrial and commercial facilities where redevelopment is complicated by real or perceived environmental contamination.

The bill authorizes technical and financial assistance to States to establish and expand voluntary response programs. Elements of a qualifying program include public participation in remedy selection, streamlined procedures, authorities to ensure that response activities are completed, and a requirement for State certification that the response is complete. In the first 5 fiscal years, the total to all States is 2-5 percent (2) of the amount available in the Superfund each year, up to $25 million. The amount of assistance in each State is determined by the proportion of total CERCLIS sites in each State.

EPA is directed to establish a program to provide 10-year interest-free loans to local government entities and Indian tribes for site characterization and assessment of brownfield facilities. Brownfield facilities are defined to exclude facilities subject to removal actions under CERCLA, facilities on the NPL, facilities subject to corrective action under the Resource Conservation and Recovery Act (RCRA), facilities being closed under RCRA, facilities subject to administrative orders or consent decrees, Federal facilities, and facilities for which cleanup assistance has been provided under the Leaking Underground Storage Tank Trust Fund. Loans per facility may not exceed $100,000 in each fiscal year, or $200,000 in total; up to $15 million may be appropriated from the Fund in each of the 5 years after enactment for the interest-free loans.

Purchasers of contaminated property are protected from liability if they did not contribute to the contamination, and conducted appropriate inquiries prior to the purchase. The bill limits the liability of lenders or lessors that: acquire property through foreclosure; hold a security interest in the property; hold a property as a lessor pursuant to an extension of credit; or exercise financial control pursuant to the terms of an extension of credit. It excludes from liability landholders whose property was contaminated by a contiguous NPL site, if they did not contribute to the contamination and are not designated as an owner or operator.

TITLE IV - Selection of Remedial Actions

Under CERCLA, cleanup standards are set by looking at applicable or relevant and appropriate requirements (ARARs) of Federal and State laws. Where no ARARs exist cleanup levels are determined using site-specific risk assessments. The law states a preference for using treatment (of soil and groundwater) that permanently reduces or eliminates volume, toxicity, and mobility of contaminants.

The bill requires the EPA to select a remedial action that is the most cost-effective means of achieving the goals of protecting human health and the environment. Human health is deemed to be protected if, considering the expected exposures associated with future land or water use, the remedial action achieves a residual risk from: (1) exposure to carcinogenic contaminants such that cumulative lifetime additional cancer risk is in the range of 10 (-4) to 10 (-6) for the affected population; and (2) exposure from noncarcinogens that does not pose an appreciable risk of deleterious effects. The environment is deemed to be protected if the remedial action will protect against significant risks to ecological resources needed to sustain a significant or valuable ecosystem and will not interfere with a sustainable functional ecosystem.

When selecting a remedy, EPA is to balance the following factors equally: effectiveness, reliability over the long term (replacing CERCLA's current preference for permanence), short-term risk, acceptability to the community, and technical practicability. If achieving the cleanup goals is technically impracticable or unreasonably costly, EPA shall select a technically practicable remedy that minimizes the risk by cost-effective means. A presumptive remedial action is considered to achieve the goals.

Remedial actions are required to protect uncontaminated groundwater suitable for humans and livestock. Groundwater decisions must take into consideration actual or planned future use, natural attenuation, and remedy selection criteria. There may be no presumption that water suitable for drinking by humans or livestock is the actual or planned or reasonably anticipated future use. Remedial action for protecting uncontaminated groundwater may be based on natural attenuation or biodegradation. Remedial action for contaminated groundwater may include point-of-use treatment.

The bill effectively eliminates ARARs, stating that a remedial action does not have to meet any standard that would apply under any other Federal or State law, except that where hazardous wastes are transferred off-site, such waste must go to a RCRA-permitted facility. Institutional and engineering controls are to be considered on an equal basis with all other alternatives.

Section 127 directs that facility-specific risk evaluations be used to: identify the risks posed by a facility, compare the relative protection of alternative potential remedies, and demonstrate that the selected remedial action can achieve goals. The risk evaluation must comply with principles that ensure that future land and water use is considered, and that the evaluation is scientifically objective and includes all relevant data. Risk evaluations must be based on plausible estimates of exposure, use facility-specific data or plausible assumptions, and use all relevant and scientifically objective data available.

The document reporting the results of the risk evaluation must clearly explain the risks, identify the assumptions and uncertainties, present a range and distribution of risk estimates and exposures, state the size of the population at risk, and compare facility risks with other daily and regulated risks.

EPA must issue regulations within 18 months that promote realistic risk characterization.

As part of the facility-specific risk evaluation prepared for use in selecting a remedy, EPA must determine the actual or planned or reasonably anticipated future use of the land and water resources at a facility by consulting the community response organization, facility owners and operators, potentially responsible parties (PRPs), and local officials.

Within 1 year, EPA is to issue a rule establishing presumptive remedial actions for common types of facilities with well-understood contamination and exposure problems. Presumptive actions may include institutional and engineering controls. A remedial action that implements a presumptive remedial action is considered to meet the goals of protecting human health and the environment.

The bill establishes procedures for conducting remedial investigations, feasibility studies, records of decisions, remedial designs, and remedial actions. The procedures provide for public participation. EPA or a PRP must prepare and implement a remedial action plan which includes the results of a facility evaluation and a description of the facility-specific risk-based evaluation under section 127 and discussion of the selected remedy. EPA's approval or disapproval of a remedial action plan with an implementation cost of more than $15 million is subject to judicial review.

The bill sets procedures and timeframes for EPA to provide notice of completion of a remedial action and delisting of a facility from the NPL. Delisting does not affect liability allocations, cost-recovery provisions, or operation and maintenance obligations. A PRP is released from liability if the facility is available for unrestricted use, and operation and maintenance is not needed. If the facility is not available for unrestricted use or operation and maintenance is required, EPA must review the status of the facility every 7 years and require additional remedial action, as needed. A facility or portion of a facility may be made available for restricted use.

Judicial review of facility evaluations, proposed remedial action plans, and final remedial designs subject to EPA review is provided for. The court may stay the implementation of challenged actions.

When listing a site on the NPL, EPA may not include property at which no release has occurred, but to which a contaminant has migrated in groundwater.

TITLE V - Liability Allocations

The law imposes joint and several liability on a strict and retroactive basis, covering owners and operators of sites, generators and transporters of hazardous substances released at Superfund sites, and those who arranged for disposal at those sites. It authorizes EPA to settle with PRPs, provides authority for EPA to prepare non-binding allocations of responsibility, and has special settlement provisions for de minimis parties. EPA may use mixed funding, and may provide settling parties protection from third party lawsuits and covenants not to sue.

The bill establishes a mandatory, non-binding allocation process for multi-party sites where response actions occur after June 15, 1995. Unidentifiable shares would be divided among the responsible parties in the allocation. Parties that accept the allocator's finding may receive a 50-percent tax credit for their pre-1980 cleanup costs, if they stay on site to conduct the cleanup. (3) An orphan share, paid out of the Fund, would cover the shares of bankrupt or insolvent parties. Excluded from the allocation process are facilities where cost shares are already determined, and facilities where no potentially responsible party (PRP) is liable for arranging for disposal, or for transporting hazardous substances.

The bill sets a moratorium on litigation until 120 days after the allocator's report is issued, and a moratorium on section 106 administrative orders of 180 days.

Deadlines are set for EPA's search for PRPs, the election of an allocator by the PRPs and the Fund's representative (from EPA or the Justice Department), submission of information to the allocator, issuance by the allocator of the final list of PRPs, and issuance of the allocator's final report specifying PRP cost shares. The allocation share for each PRP shall separately state percentage shares for activity prior to and after December 11, 1980 (date of CERCLA's enactment). State and local agencies and other tax-exempt parties pay only 50 percent of their allocated shares for activity prior to December 11, 1980; the other 50 percent is allocated to the orphan share.

De micromis parties have no liability, including liability for contribution, and are eligible for early settlement; they are defined as having contributed less than 200 pounds or 100 gallons of material containing hazardous substances. De minimis parties (less than a 1 percent share of liability in the allocator's report) are eligible for early settlement. Owners of property contiguous to contaminated property are exempt from liability; EPA may grant them an assurance of no enforcement, and protection against cost recovery. The liability of "501(c)(3) organizations" (religious, charitable, scientific and educational organizations) that receive a facility as a gift, is limited to the fair market value of the facility.

Any group of PRPs may submit a binding settlement to the allocator for any response action within the scope of the proceeding if it covers 100 percent of the cost of the action, and does not allocate a share to a non-signatory of the settlement nor to a person in the orphan share. Signatories waive the right to seek recovery of costs. The allocator has information-gathering and other powers.

The orphan share consists of the shares of insolvent or defunct parties; the 50 percent shares of tax-exempt parties, and the remainder of any share not paid by a party where: (i) it was an expedited settlement with a person with limited ability to pay; (ii) it was a de minimis party; (iii) the party's share is limited or reduced by any provision of this Act; or (iv) the person settled with the U.S. before the allocation was completed. A share attributed to a hazardous substance that cannot be attributed to any party will be distributed among the allocation parties and the orphan share.

Response action contractors (RACs) receive additional liability protection by being excluded from the definition of owners and operators, and by extending their existing exemption from Federal law to State law. RAC negligence would be evaluated based on the standards and practices in effect at the particular time and place. Subcontractors are also covered.

TITLE VI - Federal Facilities

Current law makes Federal facilities subject to CERCLA in the same way as other parties, but they are not eligible to receive Superfund monies. Federally owned sites that are not on the NPL are subject to State law concerning removal, remedial action, and enforcement.

Title VI authorizes a qualified State to apply to exercise EPA's authorities at Federal facilities, on a site-by-site basis, provided the State utilizes the Federal remedy selection process and standards. The State has exclusive authority; existing interagency agreements are unchanged, except for the State replacing EPA. A State may require a remedial action exceeding Federal standards if the State pays the incremental costs.

There are special provisions for the Department of Energy to annually identify, as part of the appropriations process, environmental cleanup requirements that the department cannot carry out with the funds appropriated for that fiscal year.

A Federal facility on the NPL may be designated for research, development, and application of innovative technologies. The listing of a Federal facility on the NPL may provide notice that specified uncontaminated parcels are excluded.

Federal property to be transferred that is identified as uncontaminated shall never have had hazardous substances or petroleum products stored upon it, instead of storage having been allowed upon it for up to a year, as present law allows.

TITLE VII - Natural Resource Damages

CERCLA makes the Federal and State governments trustees for natural resources; claims against responsible parties must be made within 3 years of discovery of the loss.

The bill writes a new definition of "natural resource" (sec. 101(16)) which includes a "commitment for use" provision requiring that the resource be "subject to a public use or to a planned public use, for which there is an authorized and documented legal, administrative, budgetary, or financial commitment."

It eliminates non-use damages, and all lost use damages for pre-1980 activities, and limits recovery to the restoration of baseline conditions. It limits the liability for the costs of compensatory restoration to $25 million; or to $50 million if the costs exceed $100 million.

The bill allows for de novo court review of a trustee's assessment of whether a party is liable and the extent of any such liability. The bill requires trustees to give equal consideration to natural attenuation and recovery as a viable restoration method, and requires the selection of the most cost-effective method of restoring a resource.

TITLE VIII - Miscellaneous

Section 801 amends section 105(a) of CERCLA to require the President to revise the National Hazardous Substance Response Plan to establish results-oriented procedures for remedial actions that minimize the time required and reduce the potential for exposure to hazardous substances in a cost-effective manner.

Section 802 amends section 105 of CERCLA to limit additions to the National Priorities List during each of the three 12-month periods following enactment to 30 new vessels and facilities. Additions may be made only with the concurrence of the State in which the vessel or facility is located. Authority to add vessels or facilities to the NPL shall terminate 3 years after enactment. Upon completion of response actions for all vessels and facilities on the NPL, the Administrator's authority shall be limited to providing a national emergency response capability, conducting R&D, providing technical assistance, and conducting oversight of grants and loans to the States.

Section 803 increases the authority for emergency response actions from $2 million to $4 million, and the time limit from 1 year to 2.

Section 804 amends section 3001 of the Solid Waste Disposal Act (RCRA). It exempts remediation waste from the regulations that bar storage and land disposal of untreated hazardous waste, and from the regulations establishing minimum technological requirements for disposal facilities. Federal, State, and local permits are not needed if the activities are conducted entirely at the facility at which the remediation takes place.

TITLE IX- Funding

Section 901 amends CERCLA section 111 to authorize appropriations from the Fund of $8.5 billion for a 5-year period, FYs 1996 to 2000.

Section 902 amends CERCLA section 111 to allow payment of orphan shares as a use of the Fund.

Section 903 amends CERCLA section 111 to authorize the appropriation of funds for the Agency for Toxic Substances and Disease Registry (ATSDR) activities to $50 million for FYs 1996-2000.

Section 904 sets limits for FY1996-2000 of $20 million per year for alternative or innovative technologies research, development, and demonstration programs, $20 million for hazardous substance research, demonstration and training, with no more than 10 percent for training; and $5 million for university research centers.

Section 905 authorizes appropriations from General Revenues to the Superfund of $250 million annually for FYs 1996-2000.

Section 906 provides for additional funding limitations by limiting FY 1996-2000 funding for State voluntary response programs to $25 million per year, by limiting Citizen Information and Access Office funding to $15 million per year, and by limiting funding for Community Response Organizations to $15 million. This section specifies that collected recoveries will be credited as offsetting collections.

Section 907 amends CERCLA Section 111(a) to allow the Fund to be used to reimburse PRPs if a PRP and EPA have entered into a settlement under which the Administrator is reimbursed for response costs, and the Administrator determines (through a Federal audit) that the costs are unallowable due to contractor fraud or Federal Acquisition Regulation, or should be adjusted due to audit procedures.

Endnotes

1. $20 million, based on the expected FY1996 appropriation of about $1 billion.

2. $20-$50 million, based on the FY1996 expected appropriation of about $1 billion.

3. The tax credit is referenced in §132(b)(5)(B)(ii) on page 134 of the bill.