CERCLA Amendments -- The House Subcommittee Bill

CERCLA Amendments — The House Subcommittee Bill

William L. Want

Editors' Introduction: In this dialogue, Mr. Want describes the CERCLA amendments passed by the House Committee on Energy and Commerce's Subcommittee on Commerce, Transportation, and Tourism. At press time, the full committee was proceeding with markup, but the committee version was not expected to differ substantially from the subcommittee bill, with one notable exception. On July 18, the Committee approved by voice vote an amendment, sponsored by Rep. Wyden (D-Or.), that would require EPA to start 540 cleanups within six years, or give Congress a detailed explanation for its failure.The Committee had rejected the day before a similar, but more stringent amendment offered by Rep. Florio (D-N.J.), chairman of the Subcommittee.

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Reauthorization of the Comprehensive Environmental Response, Liability, and Compensation Act (CERCLA) is the most important environmental legislation before Congress this session. The funding provisions of the current law, which provide $1.6 billion over a five-year period, expire on September 30, 1985. New legislation must therefore be enacted by then to provide the increased funding that the Administration and Congress agree is needed.

Most of the drama in the Superfund reauthorization process has been on the House side. A $7.5 billion bill sailed smoothly through the Senate Environment and Public Works Committee on March 1. By contrast, the House Energy and Commerce Subcommittee on Commerce, Transportation, and Tourism on June 20, 1985, rejected by a 13-5 vote Subcommittee Chairman Jim Florio's (D-N.J.) bill as the markup vehicle and instead adopted a bill authored by Dennis Eckart (D-Ohio) and Norman Lent (R-N.Y.). On June 25, 1985, the Subcommittee reported the bill out with only minor amendments.

This dialogue will describe the key provisions of the House Subcommittee bill, which now must pass through the full Committee on Energy and Commerce, plus the Public Works, Judiciary, and Ways and Means Committees, a House vote, and then a Conference with the Senate, all before the September 30 expiration date.

Before describing the bill's provisions on funding, cleanup standards, cleanup schedule, settlement procedures, citizen suits, joint and several liability, health assessment studies, community right to know, technical grants for public participation, and federal facilities, I will briefly mention a few of the bill's other provisions. The bill includes the Leaking Underground Storage Tank authority as a component of the Resource Conservation and Recovery Act (RCRA), rather than CERCLA, as favored by Chairman Florio. It exempts "response action contractors" from liability for all claims arising out of a release unless the contractor's negligent, reckless, or willful misconduct caused the release. The bill eliminates use of the Superfund for payment of natural resource claims. It requires annual audits of the Superfund program by the Inspector General of EPA. Also, it repeals those portions of CERCLA providing for the transfer of liability to the Post-closure Liability Trust Fund. As to litigation, the bill establishes a federal right of contribution or indemnity for persons liable under Section 106 or 107 or current law, but prohibits assertion of such rights against a party who has setted with EPA.

Funding

The bill authorizes $10 billion for cleanup over the next five years and recommends to the House Ways and Means Committee the following sources of revenue:

current feedstock ($1.5 billion)

waste-end ($1.5 billion)

broad-base corporate ($4.5 billion)

underground tank sources ($1.25 billion)

general revenue offset by cost recovery ($1.25 billion).

The bill also recommends a tax on imported feedstocks and imported feedstock-derived products.

Cleanup Standards and Choice of Remedy

The bill has a provision on cleanup standards that addresses the critical Superfund issue of ensuring proper and permanent cleanup. The provision requires EPA "to the maximum extent practicable" to select permanent solutions and alternative treatment technologies that will result in a permanent [15 ELR 10201] and significant decrease in the toxicity, mobility, or volume of the hazardous substance. EPA is to take into account, among other things, the long-term uncertainties associated with land disposal and the risks associated with excavation, transportation, and redisposal.

When contaminated material is removed from a Superfund site for disposal, the bill requires that it only be transferred to a facility that is in compliance with standards of RCRA. The Superfund site itself must be cleaned to the level of relevant and applicable standards of various environmental statutes. Those standards may be waived for a number of reasons, including that compliance is technically impracticable and that compliance would consume a disproportionate share of the Fund. It is expected that at full Committee markup an amendment will be offered on cleanup standards to more clearly apply the requirements of RCRA to Superfund wastes. Where there is no removal of the waste, but it is contained onsite, there must be compliance with Section 3005 of the Solid Waste Disposal Act to the maximum extent practicable.

The bill contains both general and specific requirements for the scheduling of remedial actions. Generally, it requires that EPA give primary attention to those releases that present a public health threat. Specifically, it sets out the following cleanup schedule:

completion of the evaluation of all sites on the Emergency Response and Remedial Investigation System (ERRIS) list within three years;

initiation of remedial investigations and feasibility studies (RI/FS) for all facilities listed on the National Priorities List at the rate of 150 in the first year after enactment, 175 in the second, and 200 in each of the third, fourth, and fifth years;

commencement of remedial action at no fewer than 90 percent of the sites where RI/FS's have been completed within 12 months after such studies are completed.

At the Subcommittee markup, Chairman Florio criticized this provision for not actually mandating the commencement of remedial action by a date certain. He contended that by tying start-ups to the completion of the RI/FS, EPA can avoid remedial action simply by delaying completion of the RI/FS.

Settlements

The bill also has a section that the sponsors say will create a "settlement window" so that responsible parties no longer will "hide in the weeds." Specifically, that section allows any party to limit his liability to that specified in the settlement agreement and allows EPA to then take action against any party that is not a party to the agreement. Also, EPA is authorized, when settling, to enter into covenants not to sue concerning future liability resulting from a release or threatened release of a hazardous substance addressed by the remedial action. Additionally, EPA is authorized to enter settlements granting releases from liability to persons whose contribution of hazardous substances was minimal in comparison with other hazardous substances at the facility. Another settlement provision makes agreements reached under Section 104(b) unreviewable in court as to EPA's decision on the availability and amount of Fund financing.

Citizen Suits

CERCLA does not currently contain a citizen suit provision. The Subcommittee bill would add one, authorizing suits against any person, including the federal and state governments, alleged to be in violation of any requirement under CERCLA and against EPA or any federal agency for failure to perform a nondiscretionary duty under CERCLA. The court may award attorney and expert witness fees to the prevailing or substantially prevailing party whenever it deems appropriate.

Chairman Florio's bill would also have allowed citizen suits against those responsible for hazardous waste releases alleged to cause an imminent and substantial endangerment, as opposed to a specific violation of CERCLA. At the Subcommittee markup, a number of congressmen expressed concern that such a provision would cause a flood of suits which would result in EPA losing control of the cleanup program and using its resources to enter the citizen suits. Energy and Commerce Chairman Dingell (D-Mich.) called for more information from EPA on the probable effects of such an amendment and for reconsideration of it at the full Committee markup.

Joint and Several Liability

The Subcommittee bill does not have a provision making responsible parties jointly and severally liable for the costs of cleaning up hazardous waste sites and facilities. Chairman Florio's amendment to do this was rejected at the Subcommittee markup. In the debate on this question, there was general agreement with EPA Administrator Thomas's view that joint and several liability is critical to forcing potential responsible parties into serious negotiations for settlement. However, those opposing Florio, including Energy and Commerce Chairman Dingell, argued that it was unnecessary to explicitly include joint and several liability in the statute because the courts are already applying the standard, and that any attempt to include such a provision that ultimately failed at conference with the Senate bill which does not have such a provision would risk establishing a legislative intent to reject the current practice.

Public Health Information and Assessments

The bill contains several provisions requiring preparation of public health information on hazardous wastes and sites. It requires that, within six months of the date of enactment of the legislation, the EPA Administrator and the Administrator of the Agency for Toxic Substances and Disease Registry (ATSDR) prepare a list of at least 100 hazardous substances, which the Administrators determine pose the greatest risk to human health at National Priorities List sites. Within 24 months of the date of enactment, the Administrators must add an additional 100 substances to the list. The ATSDR Administrator must prepare toxicological profiles of listed substances at the rate of 25 per year.

The bill further provides that the ATSDR Administrator shall perform a "health assessment" for each National Priorities List site for which, among other things, site-specific pathways of human exposure to hazardous substances have been demonstrated and a significant threat [15 ELR 10202] of current or future adverse health effects exists. These health assessment studies at National Priorities List sites must be completed before completion of the RI/FS at the site.

The bill also allows persons affected by exposure to hazardous substances from a present or past treatment, storage, or disposal facility or present or past removal site or facility to petition EPA to perform a health assessment. Within 60 days "or as soon thereafter as possible" after receipt of a petition for a health assessment, EPA under the bill must initiate the health assessment or explain in writing why the exposure does not present a significant risk to human health. Each assessment is to be completed within six months after the date of the petition "or as soon thereafter as possible." At Subcommittee markup, Chairman Florio and Congresswoman Barbara Mikulski (D-Md.) sought to make the time limits mandatory by eliminating the quoted discretionary language.

Also, the bill allows the Administrator of EPA to, in his discretion, make technical assistance grants to any group of individuals which may be affected by a release at any National Priorities List facility. The grants are to enable the group to obtain technical assistance to review EPA findings as to the site. The amount of the grant is limited to $25,000 and can be given to only one group per site. It may be renewed as to that recipient at various stages of the remedial action for a maximum total of either $75,000 or $100,000 (the exact number of renewals allowed is not clear).

Community Right To Know

The Subcommittee bill requires that owners and operators of facilities producing, using, or storing hazardous chemicals (as defined by the Occupational Safety and Health Administration's Hazard Communication Standard) file with state and local officials a material safety data sheet for such hazardous chemicals. The information that must be supplied is that mandated by regulations under the Occupational Safety and Health Act. The information is to be made available to interested members of the public.

The Subcommittee bill, in contrast to Chairman Florio's proposed bill and the Senate bill, partially preempts state community right-to-know laws. It is likely that elimination of this preemption provision will be considered at the full Committee markup. Also, the Subcommittee bill, in contrast with Chairman Florio's proposed bill and the Senate bill, does not contain a provision mandating detailed information on inventories, emissions, discharge, and disposal of hazardous wastes.

Federal Facilities

The bill reaffirms that all federal agencies are subject to CERCLA and cannot adopt guidelines or procedures different from the Act. EPA is required to evaluate each federal hazardous waste site using the criteria of the National Contingency Plan. Based on the evaluation, if a site is included on the National Priorities List, the federal agency that owns or operates the facility must begin a RI/FS within six months. The Administrator will review the RI/FS and enter into an interagency agreement for the completion of remedial action at the site. Chairman Florio wanted tighter deadlines for dealing with federal facilities and a provision authorizing EPA to initiate lawsuits against noncomplying federal facilities.

Conclusion

The number one concern being voiced in Congress on Superfund reauthorization is the glacially slow pace of cleanup results since CERCLA's enactment in 1980 — only 6 completed cleanups of a current National Priorities List of almost 800 and an Office of Technology Assessment estimated eventual list of as many as 10,000. The House bill attempts to break the logjam with a large infusion of funds and a variety of provisions aimed at inducing action, rather than litigation and bureaucratic machinations. While there is general agreement that the Superfund program has problems, the solutions to these problems have been raucously disputed in the House Subcommittee on Commerce, Transportation, and Tourism. Commerce and Energy Committee Chairman Dingell hopes to move the bill more smoothly through his Committee so as not to jeopardize a reauthorization before expiration of the funding provision of present law on September 30, 1985. Many of the disputes that erupted in Subcommittee, however, are likely to be replayed in the full Committee, and even on the House floor and in Conference with the Senate. Thus, Superfund reauthorization this year should not disappoint those addicted to hazardous waste legislative drama by last year's RCRA reauthorization. But if Superfund does pass this year, as expected, it and RCRA will be tough Acts to follow next year.