24 ELR 10161 -- The Superfund Reform Act of 1994: Success or Failure Is Within EPA's Sole Discretion

The Superfund Reform Act of 1994: Success or Failure Is Within EPA's Sole Discretion

Steven M. Jawetz

The Clinton Administration's proposed Superfund amendments -- the Superfund Reform Act of 1994 (SRA) -- were introduced in both the House and Senate in early February. Steven M. Jawetz of Beveridge & Diamond, reviews several key provisions of the bill's first five titles, including proposals to increase delegation to states, narrow defenses to EPA administrative orders and cost recovery actions, institute a nonbinding allocation process, and modify the remedy selection process. Mr. Jawetz assesses the extent to which the bill would address various concerns about EPA's current Superfund program. He focuses particularly on the practical impact the bill's provisions would have on potentially responsible parties (PRPs), noting provisions of the bill that might overrule existing case law, identifying several instances in which the bill would narrow PRP defenses and enhance EPA's authority, and suggesting some changes in approach that might improve the bill. Mr. Jawetz concludes that, because so much of the bill would enhance EPA's authority and discretion, the bill's success or failure in improving Superfund would depend on the choices EPA made in implementing it.

Steven M. Jawetz is a principal in the Washington, D.C., office of Beveridge & Diamond. Founded in 1974, Beveridge & Diamond has over 80 attorneys nationwide practicing in virtually every area of environmental law.

[24 ELR 10162]

On February 3, 1994, Representative Al Swift (D-WA) introduced the Clinton Administration's proposed "Superfund Reform Act of 1994,"¹ characterizing it as a "good beginning" for the process of reauthorizing and reforming the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).² Senator Max Baucus (D-MT) introduced the same bill on February 7, 1994.³ The bill includes a number of major revisions to the Superfund program, as well as a variety of attempts to overrule recent case law legislatively.

This Article describes and analyzes several key provisions in the first five titles of the Superfund Reform Act of 1994 (SRA). The Article focuses on provisions that the Administration has proffered as the answer to many of the criticisms leveled at the Superfund program over the past decade, and on other provisions that should be of significant concern to potentially responsible parties (PRPs). In particular, the Article attempts to evaluate the likely practical impact of those provisions on PRPs. The Article leaves to a later analysis the Administration's insurance fund proposal to reduce insurance coverage litigation.

A primary theme that emerges from a close reading of the bill is the preservation of the U.S. Environmental Protection Agency's (EPA's) discretion. This theme appears again and again, with respect to limitations on state authority, listing of sites on the national priorities list (NPL), limitations on PRP defenses, exercise of various settlement authorities, acceptance of liability allocations, use of enforcement authority, determination of cleanup standards, and selection of remedies. EPA's efforts to preserve its discretion are understandable and in some instances may allow a useful degree of flexibility. The great latitude granted to the Agency, however, leaves open the issue of whether these purported "reforms" would in fact achieve their stated goals of making the Superfund program "faster, fairer, and more efficient."⁴ In truth, the success or failure of these amendments would depend entirely on how EPA implemented them.

Title I Community Participation and Human Health

Section 103 -- Community Working Groups

Proposal

The bill would amend CERCLA § 117⁵ to provide for the establishment of a Community Working Group (CWG) for each site. The CWG would serve as an information clearinghouse for the community and as an advisory group to EPA, particularly for the purpose of determining the reasonably anticipated future use of land at the facility. The CWG would include persons residing near the facility, other local residents (including local members of national citizen groups), members of the local medical community, local officials, facility workers, local business community members, and PRPs. EPA would not be bound by CWG recommendations, but would be required to give them "substantial weight." If substantive disagreement existed within the CWG, EPA would be required to give the views of affected local residents "substantial weight." EPA would need to explain in writing any decision on future land use that was inconsistent with a CWG recommendation.⁶

Analysis

Public participation historically has been a weak point in the Superfund remedial action program. All recent "consensus" proposals (such as the proposals of the National Advisory Council for Environmental Policy and Technology (NACEPT) Superfund Evaluation Committee and the National Commission on Superfund)⁷ recommended increased [24 ELR 10163] involvement of local citizens in the remedy selection process. The Administration proposal is consistent with these recommendations.

The concept of a CWG seems both beneficial and workable. The biggest concern raised by the proposal is the requirement to assign CWG or local resident views on future land use "substantial weight," regardless of the factual basis for those views or the level of dissention within the CWG. Political pressures may make rejection of even ill-advised CWG recommendations difficult. One way to reduce the potential risks of this proposal while preserving its virtues would be to establish in the legislation additional criteria that these recommendations must meet. For example, the legislation could provide that, to be entitled to "substantial weight," CWG recommendations would need to be based on existing local land use patterns, established land use trends in the area of the site, existing or proposed master plans and zoning ordinances, and/or existing or proposed deed restrictions controlling the future use of the site.

Title II State Roles

Section 201 -- State Authority

Proposal

Authorization or Referral. The bill would add a new § 127 to CERCLA that would allow a state to seek either full program authorization or site-specific referrals to undertake all necessary response activities (including enforcement) at proposed or final NPL sites. For either type of delegation, the state program must be consistent with the federal program, including remedy selection and liability allocation procedures of the SRA. EPA would fund state response activity with Superfund money through cooperative agreements and contracts, subject to a state cost share of 15 percent. EPA would have the authority to review state-selected remedies and request modifications; if the state did not resolve EPA's concerns, EPA could withhold Superfund money or withdraw all or part of the state's authorization or referral.⁸

Limitations. Federal funding would not be available for state response work to achieve a level of cleanup more stringent than that required under the SRA, and no party would be liable for the incremental response costs associated with achieving the more stringent level of cleanup. Apart from NPL sites for which a state had been granted authorization or referral, the state would have no authority at NPL sites "to take or order a response action, or any other action relating to releases or threatened releases."⁹

Analysis

Overall, these provisions appear to address constructively some existing problems with the presence of multiple overlapping governmental authorities at a site. In addition, because of the provisions for state cost sharing, EPA oversight, and no PRP liability for response costs in excess of those needed to meet Superfund program requirements, the bill should control adequately the potential exercise of state authority under a delegated program.¹⁰

The provision eliminating state authority to take or order response actions at NPL sites that are not delegated to the state would appear to overrule United States v. Colorado,¹¹ in which the Tenth Circuit upheld Colorado's authority to establish independent cleanup requirements for a Resource Conservation and Recovery Act (RCRA)¹² hazardous waste management unit at an NPL site under the state RCRA program, notwithstanding the CERCLA § 113(h)¹³ prohibition of preenforcement challenges to EPA's selected remedies. It would also appear to preempt the application of other state cleanup laws to nondelegated NPL sites, such as the New Jersey Spill Act.¹⁴

Section 206 -- The National Priorities List

Proposal

The bill would eliminate the need for EPA to engage in rulemaking to add sites to the NPL. Instead, EPA could modify the NPL administratively, although an opportunity for public comment still would be required. The decision to list or remove a facility from the NPL would be within EPA's "sole discretion."¹⁵

Analysis

Under current law, EPA must go through notice and comment rulemaking to add facilities to the NPL, and facility owners and operators may challenge the listing of part or all of their facilities in court. Although having EPA's listing decisions declared arbitrary and capricious is extremely difficult, some petitioners have succeeded in doing so.¹⁶ Under the proposed change, however, this opportunity for judicial review would be eliminated. If the change is enacted, EPA will have little incentive to consider the input of affected parties when making listing decisions, and facility owners will have no judicial means of avoiding the stigma potentially associated with being listed as a Superfund site.

Title III Voluntary Response

Sections 302-303 -- Assistance to State and Local Governments

Proposal

The bill would require EPA to establish a program to provide technical and other assistance to states to establish and [24 ELR 10164] expand voluntary response programs. Eligible state programs would not encompass voluntary cleanups at a variety of sites where response work was slated to occur under another authority. The bill also would require EPA to establish a program to provide technical and other assistance to municipalities to conduct site characterizations for facilities at which voluntary response actions are proposed to be conducted.¹⁷

Analysis

Overall, these provisions constitute a minor nod to the various pieces of voluntary cleanup legislation currently pending in Congress.¹⁸ The proposed criteria for state programs that would be eligible for EPA assistance are limited; they do not address the types of cleanup standards that a state could impose on a voluntary cleanup, and they do not require states to provide any form of liability protection to persons who complete approved voluntary cleanups. Importantly, the bill fails to provide any relief regarding the application of federal permit requirements to voluntary cleanups, allowing such requirements to continue to stifle cleanups. The municipal assistance proposal appears oriented toward voluntary cleanups occurring for the purpose of property redevelopment and economic revitalization when the site owner or potential purchaser is short of site characterization funding. Funding for states and municipalities, however, is not expressly provided. Ultimately, the bill would do little to encourage private parties to engage in voluntary cleanups.

Title IV Liability and Allocation

Section 401 -- Response Authorities

Proposal

The bill would provide that EPA can seek any information "relevant to enforce the provisions of [CERCLA]" through information requests under § 104(e).¹⁹ This would include information regarding the nature and extent of site operations, the identity of persons engaged in or with authority over such operations, and the liability or responsibility of any person regarding a site. The bill also would significantly expand EPA's administrative subpoena authority to include the collection of any information necessary or appropriate for the purposes of implementing CERCLA.²⁰ (Currently, EPA has express administrative subpoena authority only to collect information for the purposes of implementing § 122's provision for nonbinding allocations of responsibility and settlements.)²¹

Analysis

One of the most publicized components of the bill is EPA's proposed nonbinding liability allocation scheme. That scheme, discussed below, would rely heavily on the accuracy and completeness of information provided by private parties. Accordingly, the bill seeks to buttress EPA's information gathering authorities in the ways described above.

To date, responses to EPA's information requests have frequently asserted that EPA does not have the statutory authority to ask certain questions. Moreover, because most § 104(e) enforcement actions have involved almost complete failures to respond rather than allegedly "inadequate" responses, respondents have felt little pressure to provide information that is clear and complete as to the scope of their potential liability.

The new authorities provided in the bill are intended to address these issues. Moreover, the new administrative subpoena authority provided by the bill would significantly expand EPA's current information request authority, by enabling EPA, without the U.S. Department of Justice's (DOJ's) assistance, to gather testimonial evidence prior to litigation in a broad range of circumstances. EPA could use this authority aggressively to probe gaps in information request responses, as well as to assemble the information needed to prepare cases for referral to the DOJ. It is also reasonable to expect that EPA would engage in further § 104(e) enforcement actions to ensure that information requests are taken seriously by all parties.

Section 402 -- Administrative Orders

Proposal

The bill would limit PRP defenses to unilateral administrative orders under CERCLA § 106²² in two significant ways. First, it would confirm EPA's authority to issue and enforce a unilateral administrative order even if another party is already complying with essentially the same order at the site. Second, the bill would redefine "sufficient cause" for purposes of the defense under §§ 106 and 107(c) that a person is not liable for a $ 25,000 per day penalty or treble damages if the person has "sufficient cause" not to comply with a § 106 order.²³ Under the new definition, "sufficient cause" would require: (1) an objectively reasonable belief by the order recipient that it is not liable for "any" response costs under CERCLA; or (2) that the action to be performed pursuant to the order "is determined to be inconsistent with the national contingency plan" (NCP).²⁴

Analysis

The first proposed amendment would remove the defense raised by some PRPs that EPA cannot force recalcitrant parties to comply with a § 106 order (or penalize them for noncompliance) if another party is already performing the required response work. Although the defense has not presented [24 ELR 10165] a significant impediment to the initiation of response actions, the amendment would tend to increase EPA's leverage over nonparticipating PRPs. Moreover, consistent with EPA's efforts to preserve and strengthen its authority to compel response work notwithstanding the status of any liability allocation activities, this amendment would increase the in terrorem effect of § 106 orders by narrowing the availability of good-faith defenses to noncompliance.

The proposal to redefine the "sufficient cause" defense should be extremely troubling to PRPs, for at least two reasons. First, existing case law may provide a § 106 order recipient with a sufficient cause defense based on the party's objectively reasonable belief that because of the divisibility of harm attributable to the party's waste, it is not jointly and severally liable for the ordered cleanup.²⁵ The party would argue that if its legal liability for cleanup costs is a minor fraction of the whole, it cannot be compelled to perform the cleanup. The bill would simply eliminate this defense.

Second, existing case law should enable a § 106 order recipient to establish a "sufficient cause" defense based on its objectively reasonable belief that the selected remedy is arbitrary and capricious or otherwise inconsistent with the NCP.²⁶ This potential defense to penalties is the only one available to most otherwise liable PRPs, and it constitutes the principal leverage over EPA that such parties have with respect to how a cleanup will be implemented under a § 106 order. The bill would essentially eliminate this protection, by requiring liable parties to prevail in their argument that the mandated action is inconsistent with the NCP in order to establish a "sufficient cause" defense. Under the amendment, the reasonableness of a PRP's objections to a selected remedy at the time of the order would become irrelevant.

Because the potential penalties for noncompliance are so high, and the difficulty of overturning an Agency action under the "arbitrary and capricious" standard is so great, very few PRPs will be able to risk noncompliance with an EPA administrative order, even if they have a very good argument that the ordered action makes no sense. As a result, companies will have very little ability to negotiate with EPA over the implementation of arguably irrational orders. Their only remedy will be to perform the work and, years or even decades later, seek reimbursement from the Superfund under CERCLA § 106(b)(2).²⁷ Because of its tremendous leverage, EPA will have little incentive to consider carefully PRPs' assertions that EPA's selected remedies are not justified by the specific circumstances of each site.

The availability of a "sufficient cause" defense and the ability to petition for reimbursement of costs are central to maintaining the constitutionality of § 106 orders. In addition to the above changes, § 402(d) of the SRA would place within EPA's discretion the determination of when a § 106 order recipient has completed the required action.²⁸ Such completion is a prerequisite to petitioning for reimbursement of costs under § 106(b)(2). To the extent the SRA would enable EPA to erect obstacles to parties seeking reimbursement for arbitrary and capricious § 106 orders, while at the same time eliminating the "sufficient cause" defense to penalties for such orders, the SRA would cast the continued constitutionality of § 106 orders into question.

Section 403 -- Limitations on Liability for Response Costs

Proposal

[] 'De Micromis" Parties. The bill would amend CERCLA § 107²⁹ to eliminate the liability of any person who transported or arranged for disposal at a site of less than 500 pounds of municipal solid waste (MSW)³⁰ or less than 10 pounds or liters of materials containing hazardous substances, pollutants, or contaminants. EPA could, by regulation, increase or decrease the liability cutoff levels. EPA also could determine that the 10-pound liability cutoff does not apply to a particular PRP, based on (1) EPA's determination that the relevant material contributed or could contribute significantly to response costs, or (2) the PRP's failure to respond adequately to an information request or its failure to certify that it qualified for the exception.³¹

[] Bona Fide Prospective Purchasers. The bill would exempt current facility owners from liability under § 107(a)(1),³² if they are "bona fide prospective purchasers."³³ A "bona fide prospective purchaser" is defined in a new § 101(39)³⁴ as one who acquires ownership of the facility after enactment of the SRA and who can establish by a preponderance of the evidence that:

(a) all active hazardous substance disposal occurred prior to the acquisition;

(b) the person had conducted a site audit in accordance with generally accepted standards and practices;

(c) the person had provided all legally required notices with respect to the discovery or release of any hazardous substance at the facility;

(d) the person had exercised due care with respect to hazardous substances found at the facility and took reasonably necessary steps to address any release or threat of release;

(e) the person provided full cooperation and access to those responsible for response actions at the facility; and

(f) the person is not directly or indirectly affiliated with any liable person (other than that created by the instruments conveying or financing title to the facility).

[] Municipalities and Other MSW Generators and Transporters. The bill would limit the liability of MSW (or sewage [24 ELR 10166] sludge) generators and transporters to a maximum of 10 percent of total response costs at the facility, in the aggregate.³⁵

Analysis

The principal question regarding the so-called de micromis exception to Superfund liability is whether the stated threshold volumes will affect a significant number of small businesses and municipalities. Because a small business may easily send more than 10 pounds of non-MSW material containing hazardous substances to a given site, and a private household or other entity may easily send more than 500 pounds of MSW, this exception is likely to be available to relatively few persons, if anyone, at the proposed threshold. In her testimony regarding the bill, however, Administrator Browner suggested that these cutoff figures were only starting points for negotiations over the proposed legislation.³⁶

The conditions to be a "bona fide prospective purchaser" are sufficiently onerous and time-consuming to limit greatly the number of persons to which it would apply. In particular, the open-ended requirement that the purchaser must take reasonably necessary steps to address any release or threat of release of hazardous substances could create significant uncertainty over the potential availability of this liability exclusion. Moreover, by its terms, the provision would have only prospective effect. Nonetheless, the provision might assist some future property purchasers to persuade lenders to provide needed financing.

Due to a subsequent bill provision intended to prevent "unjust enrichment," however, the liability exclusion for bona fide prospective purchasers may not encourage many businesses to seek out contaminated property for redevelopment. Under the proposal, if a government response action inures to the benefit of a nonliable facility owner and there are unrecovered response costs, the United States shall have a lien on the property for the unrecovered costs to the extent of the increase in fair market value of the property attributable to the response action at the time of a subsequent sale or other disposition of the property.³⁷ Given the potential for disputes over whether a given market value increase was due to redevelopment or the cleanup, businesses may have limited incentive to engage in such a project.

Much has been written about the concept of limiting the liability of municipal generators and transporters to 10 percent or less of total response costs. The principal criticism of this proposal is that it would unfairly shift response costs from municipal waste generators and transporters to other PRPs, notwithstanding the sizable contribution of the municipal waste to cleanup costs at particular sites. This liability limitation, however, has substantial political support.

Section 404 -- Liability

Proposal

[] Oversight Costs. The bill would amend § 107(a)(4)(A)³⁸ to specify that "costs of removal or remedial action" include "direct costs, indirect costs, and costs of overseeing response actions conducted by private parties."³⁹

[] Liability for Pollutants and Contaminants. The bill would expand the scope of §§ 107 and 106 liability to cover not only hazardous substances, but "pollutants and contaminants."⁴⁰ The latter phrase is currently broadly defined in CERCLA § 101(33)⁴¹ to include any substance or mixture that may reasonably be anticipated to cause any one of a variety of adverse health effects in an organism or its offspring following direct or indirect (food chain) exposure of the organism.

Analysis

In another effort to expand the scope of EPA authority under CERCLA, the proposed amendment defining "costs of removal or remedial action" would legislatively overrule the case of United States v. Rohm & Haas Company.⁴² Rohm & Haas held that government costs incurred in overseeing response actions conducted by private parties (other than a remedial investigation and feasibility study (RI/FS)) were not recoverable under § 107. The proposed language also would confirm EPA's general authority to recover indirect costs, which several courts have upheld.⁴³ These changes are interesting, in that oversight costs, indirect costs, and similar management-related costs have been the subject of recurrent error and abuse and a source of embarrassment to EPA. The "fix" in this instance is the further armoring of these costs against challenge.⁴⁴

Another significant proposed change is the expansion of liability to include "pollutants and contaminants." With this change, the United States and other cost recovery plaintiffs would no longer be restricted to proving that a defendant sent to a site one of the "hazardous substances" specifically defined in § 101(14).⁴⁵ Similarly, recoverable costs and natural resource damages would include those resulting from a release of a pollutant or contaminant. This element of the SRA has understandably engendered significant controversy since its release. In response, EPA has indicated that it did not intend to create a major expansion of the Superfund liability regime and may drop the proposal.

[24 ELR 10167]

Section 408 -- Enhancement of Settlement Authorities

Proposal

[] Final Covenants Not to Sue. The bill would amend CERCLA § 122(f)⁴⁶ to broaden the authority of the President (i.e., EPA) to give PRPs "final" covenants not to sue (in other words, releases without reopeners) upon payment of an appropriate premium to cover various future risks. The amount of any such premium would be committed to the President's "sole discretion."⁴⁷

[] Expedited Settlements. The bill would authorize and encourage the President to offer expedited settlements to three categories of PRPs: (1) de minimis parties (presumptively defined as those who contributed less than 1 percent of the total waste volume to the site, as well as owners who were uninvolved in hazardous substance generation, transportation, disposal, or releases at the site); (2) generators and transporters of MSW and sewage sludge; and (3) small businesses or municipalities who have demonstrated a limited ability to pay. The determination of whether a party is eligible for an expedited settlement, and the terms of such a settlement, would be "committed to the President's unreviewable discretion," although a decision not to engage in an expedited settlement would need to be explained in writing.⁴⁸

Analysis

The foregoing settlement authorities are broader than those currently provided by CERCLA, and they are intended to address some of the major existing roadblocks to settlement. For example, the authority to provide a "final" covenant not to sue to large and small parties alike is designed to overcome a common complaint regarding EPA's current position on such covenants.

Like the existing settlement authorities, however, EPA would retain complete discretion on whether and how to use the new authorities. Moreover, the extent to which the regulated community would be afforded input into the criteria or standards guiding use of the authorities, if any, is unknown. Therefore, absent more specific direction from Congress, the value of these changes would be wholly contingent on how EPA implemented them.

If EPA were to charge unreasonable premiums for "final" covenants not to sue, for example, or PRPs believed that the settlement premiums were otherwise grossly unfair, the covenants would attract few additional settlors. Similarly, if EPA devoted few resources to engaging in expedited settlements, de minimis and other parties would see little benefit from these statutory changes. Likewise, the concept of "limited ability to pay" is defined in detail for municipal owners or operators of sites, but not for businesses. This is a potential problem, as businesses historically have had great difficulty persuading EPA of their limited ability to pay and their need for expedited settlements to allow or promote financial recovery.

Section 409 -- Allocation Procedures

Proposal

[] Scope. The bill would create a new § 122a that would require EPA to initiate a new nonbinding allocation process for the following "remedial actions" at multiparty NPL sites (that are not federal facilities): (1) remedial actions selected after enactment of the SRA; and (2) remedial actions selected before enactment of the SRA if the allocation is requested by a PRP who has settled with the United States for the costs of the action or is performing the action under a § 106 order. As discussed below, for the first category of sites, the Superfund will reimburse settlers for amounts attributable to the "orphan share" and shares of nonsettlors. These benefits are not required for the second category of sites.⁴⁹

[] Moratorium. The bill would place a moratorium or stay on cost recovery actions regarding any remedial action for which an allocation must be performed. The moratorium would expire 60 days after issuance of the allocator's report. EPA's ability to issue and enforce § 106 orders, however, would be unaffected.⁵⁰

[] The "Neutral" Allocation. No later than 18 months after commencement of an RI/FS, EPA would issue a preliminary PRP list, notify the listed PRPs, and provide them with a list of "neutral" and "qualified" allocators assembled by EPA in its sole discretion. If the listed PRPs did not agree on an allocator from the list within 30 days, EPA would select the allocator. The allocator selected by the parties or EPA would be placed under contract to EPA. EPA would make available the responses to its information requests and other relevant information, and the parties would have 60 days to identify additional PRPs.

After the opportunity to add parties has expired, a final list of "allocation parties" would be issued, and the parties would have an opportunity to agree on a negotiated allocation. The allocator would be authorized to request additional information from the parties. For enforcement of his or her information requests, the allocator would need to go to EPA.⁵¹

[] Allocation Report. Absent a negotiated allocation, the allocator would issue a written allocation report no later than 180 days after issuance of the final "allocation party" list (subject to a potential 90-day extension for cause). The allocation to each PRP would be based on the volume, toxicity, and mobility of its contributed hazardous substances, the degree of its involvement in hazardous substance generation and management, its degree of care with regard to the substances, its cooperation in contributing to the response action and in providing information during the allocation, and asuch other factors that [EPA] determines are appropriate by published regulation or guidance."⁵²

[] Orphan Share. As part of the allocation, the allocator would determine the "orphan share" at the site, defined as the shares [24 ELR 10168] attributable to identified but insolvent or defunct PRPs, and the difference between the aggregate settlements provided by municipalities and other early settlors and their aggregate allocated shares. Known volume that could not be allocated to an identified party (e.g., because of illegible documents) would not be included in the orphan share; rather, it would be distributed among the parties. The Fund would reimburse settling parties for the cost of the orphan share, subject to an annual aggregate limitation of $ 300 million across all sites.⁵³

[] Effect of Allocation. Neither PRPs nor the United States would be bound by the allocation report. The United States, however, would be required to accept a timely offer of settlement from a party based on its allocated percentage share, if the offer includes "appropriate premia and other terms and conditions of settlement" and EPA and the DOJ have not determined that "a settlement based on the allocator's determinations would not be fair, unreasonable, and in the public interest." If EPA and the DOJ were to reject the allocation, the determination would not be judicially reviewable. EPA could establish whatever conditions it saw fit on a settlement. Among the required conditions would be a waiver of contribution rights against all other PRPs, provisions regarding performance or assurance of performance of response actions addressed in the settlement, and a litigation risk premium with respect to nonsettling PRPs. Settlements also would include the benefits of a government covenant not to sue, protection against all contribution suits regarding matters addressed in the settlement, and provisions by which the Superfund would reimburse settlors (apparently as a group) for response costs incurred in excess of their aggregate allocated shares plus any premia required by the settlement. If the United States were to reject a timely settlement offer based on an allocation report it had not rejected, and the offer had included "appropriate premia and other terms and conditions of settlement," and the offeror's liability to the United States was ultimately resolved to be less than the amount of the offer, the United States would be required to reimburse the offeror's reasonable defense costs and fees.⁵⁴

Analysis

CERCLA § 122⁵⁵ currently authorizes EPA to engage in a nonbinding allocation of responsibility at sites. The bill would establish a more elaborate, still nonbinding allocation procedure involving a third-party allocator, and would require allocations to be prepared for certain categories of NPL sites. In general, a liability allocation system that involved significant incentives for settlors and significant disincentives for nonsettlors could sharply reduce litigation and other transaction costs even if the system were nonbinding. Almost every element of the proposed nonbinding allocation system, however, raises practical questions concerning implementability, fairness to the participants, and the actual or perceived benefits and costs of settling with the government. Many of these uncertainties exist because of the significant discretion reserved to the government concerning implementation of the system.

[] Scope. In practice, unless the scope provisions are clarified and broadened, the new allocation system may have little impact on the big, complex sites currently giving rise to high transaction costs. According to EPA, over 2,500 operable unit records of decision (RODs) have been issued with respect to the approximately 1,370 sites currently or formerly on the NPL, and at least one ROD has been signed for the overwhelming majority of the approximately 1,200 sites currently on the NPL.⁵⁶ Although some current NPL sites will have operable unit RODs that will be signed after the enactment of the SRA, and more than 1,000 sites may be added to the NPL in the future, a significant percentage of the large, complex, multiparty NPL sites now giving rise to very high transaction costs may not have any post-SRA RODs and therefore would not come within the new mandatory allocation system.

The allocation requirement for the second category of multiparty NPL sites is largely illusory. Although an allocation may be requested in connection with a pre-SRA remedial action, the only person that may request one is a PRP who has settled with the United States or is performing the remedy. Typically, because of the costs involved, a PRP will have participated in an allocation before entering into a settlement or performing a remedy. Moreover, because the SRA provides that the Fund is not required to pay for shares attributable to orphans or recalcitrants at such sites, a PRP has little incentive to request an allocation from EPA. As a result, few allocations are likely to be performed under this provision as currently drafted.

[] Moratorium. As discussed further below, a 60-day moratorium beyond issuance of the allocation report is not enough time to make an offer or negotiate a settlement with EPA, particularly at a complicated, multiparty site. More importantly, if EPA decided not to wait for the results of the allocation process, it could issue § 106 orders for performance of the selected remedy at any time, potentially forcing recipients to incur high costs in developing their own interim or final allocations. In addition, if the allocation were not completed at that point and EPA issued the orders to fewer than all listed PRPs, it is unclear what leverage the order recipients would have to bring the PRPs not named by EPA into the process.

In any event, absent further assistance from EPA, recipients of § 106 orders would still need to incur significant transaction costs in organizing themselves to address the orders. Because of the other changes to EPA's § 106 authority proposed by the bill, this authority may operate as a "loaded gun" that forces PRPs to buy into an otherwise flawed settlement process.

[] Allocator Selection. At sites with more than a few parties, the 30-day time schedule created by the proposal frequently would result in EPA selecting the allocator. Because EPA would compile the list of allocators, potentially select the allocator, and place the allocator under contract to EPA, participants might perceive the allocator as something other than entirely "neutral." Ensuring that the allocator is perceived as neutral, however, would likely prove critical to PRPs' acceptance of the allocation results. (An allocator training program [24 ELR 10169] might help in this regard, not only to promote principles of neutrality, but to ensure that all allocators obtain a minimum level of experience in common Superfund allocation issues and methodologies.)

[] Identifying Additional PRPs. Due to limited resources and lack of incentive, EPA historically has done a poor job of identifying and locating PRPs in the first instance. Under most circumstances, however, 60 days would be very little time for the named parties to mount an effective search for additional PRPs, particularly if the parties wanted to organize to share the costs of the search.

[] Gathering Information. Under the bill, the allocator apparently must go to EPA to enforce its information requests. Therefore, the effectiveness of this provision is uncertain, given the likely delays in having EPA engage its § 104(e) authorities.

[] Allocation Report. The time frame for preparation of the allocation report seems implausible, particularly if additional information was required from several parties or testimonial evidence was needed to fill information gaps. In addition, such a short period would tend to encourage the allocator to provide minimal attention to the legitimate concerns of individual parties.

Of greatest concern to PRPs may be that the process of preparing the allocation is not expressly iterative. In other words, PRPs would not be guaranteed any opportunity to comment on the decision rules being used by the allocator or on the reasoning underlying particular allocations prior to issuance of the final report. This is inconsistent with the allocation procedures used by most PRP groups, and its substantial risk of fundamental unfairness threatens the efficacy of the entire allocation scheme.

[] Allocation Factors. The list of factors to be considered by the allocator is a variation on the so-called Gore factors.⁵⁷ The variation on the "cooperativeness" factor would seem to penalize PRPs who decline to contribute funds prior to the allocation. In addition, the list leaves out any reference to strength of evidence, although this factor often has a significant practical impact on the government's (and contribution plaintiffs') litigation risk. This list also leaves out the catchall "other equitable factors" that are presently available to a court in performing an allocation, which may be necessary to capture the circumstances of a particular site and particular parties.

Perhaps most significantly, while the use of multiple qualitative factors in the allocation equation may enhance overall fairness, it will also increase the complexity of the allocation process. This complexity will increase rather than decrease the need for substantial input from all affected parties during the allocation process.

[] Orphan Share. Overall, requiring the Fund to bear the cost of an "orphan share," however defined, is an important step toward improving the settlement incentives and fairness of the Superfund program. The fairness of requiring PRPs to bear the cost of waste volume that is known but unallocable to identified parties, however, will vary at each site; the larger this volume, the less fair the allocation.

In addition, EPA's history with preauthorized "mixed funding" payments from the Superfund under the current program suggests that actual reimbursements would be far below 100 percent. Unless settling PRPs were guaranteed reimbursement of 100 percent of the orphan share, plus interest running from the time they had to spend the money, they would still be bearing some portion of the burden of this share in practice. The less reimbursement that PRPs could expect to receive from the Superfund, the weaker the orphan share reimbursement scheme would be as an incentive to settle.

The artificial cap on the annual aggregate amount of orphan share funding also might cripple the potential value of this incentive, and presents another potential source of unfairness. At a minimum, the cap might delay the reimbursement of some settling parties who have expended substantial funds. Absent further direction and clarification from Congress, the cap also could deprive some settlors of their bargained-for reimbursement.

Addressing the above problems would be simple from a legislative drafting perspective. The principal hurdle would be to persuade relevant decisionmakers that a nonbinding system will only work if it relies more heavily on carrots than sticks, such as guaranteed 100 percent Superfund financing of the orphan share and the shares of nonsettlors, plus interest from the date of the expenditure, paid in the form of progress payments during design and construction. The current system relies too much on compulsion and threats; its well-recognized problems have given rise to the proposed effort to change the system.

[] Effects of Allocation. The key to the potential effectiveness of the nonbinding allocation scheme lies in the effects of the allocation. If most PRPs could take the results of a reasonably fair allocation and, based on that allocation, immediately cash out of further liability to the government and other PRPs, the allocation scheme almost certainly would result in tremendous participation and a huge reduction in transaction costs. Unfortunately, the proposed scheme does not include these characteristics.

First, under the bill, a settlement offer to the United States must be for a percentage of total cleanup costs, not for a fixed amount. Because total cleanup costs often may not be known at the time of the allocation report (the ROD may or may not be issued), and may vary greatly depending on who is doing the work, any PRP seeking to settle will have to assume substantial risk in binding itself to a percentage share at the outset.

Second, the ability of EPA and the DOJ to reject the allocation report (e.g., if they disagree with an allocation to a particular party, such as a federal facility), without any judicial review of the rejection or its basis, creates significant uncertainty and the potential for additional unfairness. Particularly because the government would not be bound to make its determination within a specific time frame (although EPA and the DOJ are to "seek" to decide on the report within 60 days of issuance), PRPs would be faced with substantial uncertainty even after the allocator had completed his job. This uncertainty would seriously dilute one of the principal advantages of a formal allocation process. Moreover, if the United States does not have to live [24 ELR 10170] by the allocation, the fairness of requiring other parties to settle on the basis of the allocation or face dire consequences is extremely suspect.

Third, EPA would be able to impose any conditions it saw fit on the settlement. Therefore, in practice, EPA would never be required to accept a settlement offer it did not like. One of these conditions could be a very high "litigation risk" premium, whereby the government could seek to insulate itself from the vagaries of future litigation against nonsettlors. (As a side note, if reimbursement of settling PRPs will not occur until some years after the settlement, there is little basis for the government to charge a litigation risk premium, since the United States will have had an opportunity to pursue its case against nonsettlors. By charging such a premium, the United States theoretically could recover more than 100 percent of its response costs at a particular site, turning the Superfund program into a money-making proposition for the Treasury.)

Another required condition is that the settlement must include "provisions regarding performance or adequate assurance of performance of response actions addressed in the settlement."⁵⁸ This vague provision would seem to require any non de minimis party settling with the government to accept responsibility for performance of the entire remedy, unless some other party has already done so. Again, unless the PRPs have already organized as a group and agreed as a group to perform the remedy, individual PRPs, and particularly smaller parties, are unlikely and perhaps unable to make this commitment. (Recall that Superfund reimbursement would require settling PRPs to spend the money in the first instance.) Requiring such a commitment would be impractical and unfair.

Presumably, EPA also would continue to use much of the existing model consent decree,⁵⁹ which has a variety of objectionable provisions. Under the terms of the bill, however, EPA would not need to engage in any significant negotiation over the consent decree or the remedy in order to force PRPs to make a very hard choice between accepting an extremely distasteful settlement, accepting a potentially arbitrary § 106 order, or facing a § 107 cost recovery action subject to joint and several liability for all Superfund expenditures (including the orphan share) and potentially treble damages. In fact, ridiculously little time might exist for consent decree negotiations, given that the moratorium on EPA cost recovery action would expire only 60 days after issuance of the allocator's report, and EPA would be under no moratorium with respect to the issuance of § 106 orders.

The proposed scheme does not materially increase the total liability faced by nonsettlors relative to the current system. Nonsettlors currently face the risk of liability to the government for its Superfund expenditures and liability to settling parties for their expenditures, which currently cover the orphan share. If the government were less vigorous than settling parties have been in pursuing nonsettlors, perhaps because the government would be able to collect substantial premiums from settlors that offset its orphan share expenditures, the risk to nonsettlors under the proposed system might be less than under the current system.

Because of its limited scope, procedural weaknesses, uncertainty, and potentially limited settlement incentives, the proposed nonbinding liability allocation scheme may be unable to satisfy its stated goal of significantly reducing the unfairness and high transaction costs of the Superfund liability scheme. Under the bill, the principal reduction in total transaction costs would come from the elimination of contribution suits by settlors. Nonsettlors would still fight among themselves, and under the bill would be fighting with EPA rather than the settlors. Unless the vast majority of the PRPs at a given site settle with the government following issuance of the allocation report, the net reduction in total transaction costs, if any, may be minimal. In addition, the transaction costs avoided by individual settlors may be offset by the cost to them of the premiums and other conditions imposed by EPA. The proposed system could be substantially improved through the provision of additional incentives and procedural protections to ensure the relative attractiveness of the settlement option.

Title V Remedy Selection and Cleanup Standards

Section 502 -- Cleanup Standards and Levels

Proposal

[] National Goals. The bill would require EPA to promulgate uniform national health and environmental protection goals to be applied at all remedial actions. As introduced, the bill does not specify a required target risk level (e.g., 1 x 10 <-6>).⁶⁰

[] National Standards. EPA also would be required to promulgate national generic cleanup levels for specific (but unspecified) hazardous substances. The cleanup levels are to be based on the national goals and to reflect reasonably anticipated future land uses, other variables that can be easily measured at a site and whose effects are well understood to vary on a site-specific basis, and concentration levels below which a response action is not required.⁶¹

[] Site-Specific Risk Assessments. Risk assessments could still be used to set cleanup levels at particular facilities, if generic levels did not exist for the relevant substances or they did not account for particular site characteristics. Such cleanup levels would be based on the national goals and on reasonably anticipated future land uses at the facility. EPA would be required to promulgate a national risk assessment protocol "based on realistic assumptions" for all site-specific risk assessments.⁶²

[] Federal and State Laws. The existing requirement to meet "applicable or relevant and appropriate requirements" of other laws (ARARs) would be eliminated.⁶³ Instead, remedial actions would be required to comply with (1) any substantive federal standard or requirement that EPA deems "suitable for application to the remedial action at the facility," and (2) any "more stringent" substantive state standard or requirement promulgated under "any state environmental law specifically [24 ELR 10171] addressing remedial action that is adopted for the purpose of protecting public health or the environment with the best available scientific evidence through a public process."⁶⁴

Analysis

Conceptually, national generic cleanup levels that take reasonably anticipated future land use into account could provide a helpful degree of certainty to any company engaged in a cleanup, because everyone will know the necessary extent (though not necessarily the method) of cleanup. Two key questions exist about the national standards and their interplay with site-specific risk assessments. First, will the national generic cleanup levels incorporate realistic assumptions about chemical risk and extent of exposure, or will they be based on multiple "conservative" assumptions that lead to overly stringent and wasteful standards? Second, even after multiple generic cleanup levels have been promulgated, will private parties still have the flexibility to demonstrate that site-specific conditions warrant use of a site-specific risk assessment to develop alternative cleanup levels?

The reference in the bill to reasonably anticipated future land uses and other measurable variables suggests that EPA could develop a national formula rather than generate one or two specific numbers for each hazardous substance. A formula that can be applied to site-specific variables would tend to reduce the number of assumptions required in the calculation, which could improve the reasonableness of the resultant cleanup standard. Nonetheless, many assumptions other than land use likely would be required about the extent of exposure, and substantial scientific dispute can exist about the extent of the risk presented by given chemicals. The process of issuing a significant number of generic cleanup levels would likely take at least two or three years following enactment of the SRA, and litigation by industry or by environmental groups over the levels could be expected.

Currently, many site cleanup standards are established through the use of site-specific risk assessments. This practice would continue unabated pending the development of the national generic cleanup levels. The bill is unclear on the extent to which PRPs will be allowed to use site-specific risk assessments after national generic cleanup levels have been promulgated for the substances that are present at a given site. If this option is foreclosed or left up to EPA's discretion, PRPs risk the imposition of national standards that are unnecessarily stringent and wasteful in light of site characteristics. To maximize cost-effectiveness while protecting human health and the environment, the bill could be clarified explicitly to preserve the option of site-specific risk assessments for PRPs who desire to use them.

Reducing the role of ARARs would be beneficial, given the inconsistency and wasted time arising from current disputes over what standards are "relevant and appropriate." The bill language regarding the continued application of certain federal and state standards, however, warrants additional clarification. For example, the language appears to place in EPA's discretion the choice of federal standards to be applied to a cleanup, rather than specifying that only legally applicable federal requirements must be followed. This is a source of significant uncertainty and potential inconsistency.

The language regarding state standards and requirements appears intended to reduce the number of state standards that potentially could apply to a site. However, it contains multiple vague terms that could lead to further uncertainty and disputes, such as "best available scientific evidence."⁶⁵

Moreover, if EPA is required to apply all promulgated state standards and requirements addressing remedial action (as long as they are ostensibly based on "the best available scientific evidence"), the language invites states to attempt to promulgate more stringent cleanup standards. Under the bill, states could obtain Superfund funding or use cost recovery against PRPs to avoid bearing any costs of meeting such standards, and therefore would have an incentive to create the most stringent requirements that they could support with some scientific evidence. Although § 201 of the bill includes a provision insulating the Fund and PRPs from state-imposed costs "in excess of those necessary to achieve a level of cleanup required under Section 121(d)" of CERCLA, costs arising from state cleanup standards incorporated into the cleanup through § 121(d) would not be subject to this limitation.⁶⁶ Because state remedial action standards are not required to account for reasonably anticipated future land uses and other site-specific variables, the provision regarding application of state standards could eliminate any potential benefits to PRPs from having either national generic cleanup levels or site-specific risk assessments.

Section 503 -- Remedy Selection

Proposal

The bill would provide that remedies would be selected through a balancing of effectiveness, long-term reliability, risks posed by implementation of the remedy, acceptability of the remedy to the community, and "the reasonableness of the cost of the remedy in relation to the preceding factors." EPA would be required to take reasonably anticipated future land uses into account when selecting a remedy.

Applying the above factors, EPA could select a remedy involving treatment, containment, other remedial measures, or any combination thereof, as long as the remedy was protective and met the required cleanup standards.

The bill would limit the preference for treatment to "hot spots." "Hot spots" are defined as any discrete areas within a facility that contain hazardous substances which are "highly toxic or highly mobile, cannot be reliably contained, and present a significant risk to human health or the environment should exposure occur."

EPA would be required to develop cost-effective generic remedies for categories of facilities. EPA could select a generic remedy for a given facility without considering alternative remedies, as long as the generic remedy was protective at the site and the community was consulted.⁶⁷

Analysis

Although they are prospective only, applying only to RODs [24 ELR 10172] signed after the date of enactment,⁶⁸ the proposed changes to make the remedy selection process more rational may be the most beneficial aspects of the Administration bill. Many of the remedy selectionproposals are consistent with the approach already followed under the current NCP. For example, EPA already ostensibly engages in a balancing of similar criteria,⁶⁹ and seeks to focus treatment on "principal threats," generally defined as "liquids, areas contaminated with high concentrations of toxic compounds, and highly mobile materials."⁷⁰ The principal advantage of the bill is that it eliminates the broad statutory preference for the use of destructive treatment technologies at sites (e.g., incineration of contaminated dirt), which is the least cost-effective aspect of the current program.

One of the problems of the bill, however, is that it uses terms that are even less well defined than those in the NCP. The proposal retains the treatment preference for "hot spots," an emotionally loaded term with a very broad definition. Because individual EPA project managers could consider many hazardous substances to be "highly toxic," "highly mobile," or otherwise unable to be "reliably contained," they could apply the "hot spot" definition to a very broad range of unwarranted situations. This would tend to preserve much of the controversy in the current program. To avoid this result and better communicate the intent of the provision, the language could be clarified to focus treatment only on liquids and on very high concentrations of hazardous substances in soil that, because of the mobility of the substances and/or the major threats posed by a release, cannot be reliably contained with current technology.

Overall, from a programmatic perspective, the most important aspects of the bill may be its stress on the need to take reasonably anticipated future land uses into account and its focusing of the treatment preference. Further emphasis on the role of cost-effectiveness in selecting remedies, however, would be an important addition to the bill.

Section 506 -- Removal Actions

Proposal

The bill would increase the funding and time limits on removal actions from $ 2 million and 12 months to $ 6 million and 3 years.⁷¹

Analysis

Consistent with EPA's efforts to speed up the program through the Superfund Accelerated Cleanup Model,⁷² the bill would significantly expand the circumstances under which EPA can pursue a response action without requiring a state cost share or triggering any of the other procedural or substantive requirements applicable to remedial actions. To some extent, PRPs may benefit from EPA's expanded use of its less burdensome removal authorities. Note, however, that as proposed in the SRA, the significant changes to remedy selection and the proposed nonbinding liability allocation scheme would apply only to remedial actions; EPA would not be required to follow these provisions with respect to removal actions.

Conclusion

The proposed changes to the remedy selection process, even though they would be only prospective in effect, represent some of the most promising elements of the Administration's Superfund reauthorization bill. Much of the remainder of the bill is designed to enhance EPA's authority or protect it from challenge. Several provisions unquestionably would operate to the detriment of PRPs. It is possible that other provisions will succeed in making the program faster, fairer, and more efficient, but absent more explicit direction from Congress, the amount of discretion placed in the hands of the Agency concerning the implementation of these provisions makes their success or failure impossible to predict. As was true with the authorities and flexibility granted by the Superfund Amendments and Reauthorization Act of 1986 (SARA),⁷³ EPA's own actions would determine whether the SRA significantly reformed the Superfund program. The history of EPA's implementation of SARA casts some doubt on the wisdom of this approach.

1. H.R. 3800, 103d Cong., 2d Sess., 140 CONG. REC. H287 (daily ed. Feb. 3, 1994).

2. 42 U.S.C. §§ 9601-9675, ELR STAT. CERCLA §§ 101-405.

3. S. 1834, 103d Cong., 2d Sess., 140 CONG. REC. S1058-1077 (daily ed. Feb. 7, 1994).

4. U.S. EPA, ENVIRONMENTAL NEWS 1-2, Feb. 3, 1994 (press release).

5. 42 U.S.C. § 9617, ELR STAT. CERCLA § 117.

6. S. 1834 § 103, 140 CONG. REC. S1060-61 (daily ed. Feb. 7, 1994). Citations to theSRA are to the Senate bill, rather than the essentially identical and earlier introduced House bill, because Congressional Record citations for the text of the SRA are available only for the Senate bill.

7. NACEPT, Update Position Paper on Liability (Nov. 8, 1993); National Commission on Superfund, Report on Superfund Reauthorization (pre-publication draft) (Dec. 21, 1993).

8. S. 1834 § 201(a), 140 CONG. REC. S1062-63 (daily ed. Feb. 7, 1994).

9. Id.

10. See, however, the treatment of state standards in the remedy selection provisions, discussed infra notes 65-66 and accompanying text.

11. 990 F.2d 1565, 1578, 23 ELR 20800, 20805 (10th Cir. 1993), cert. denied, 114 S. Ct. 922 (1994).

12. 42 U.S.C. §§ 6901-6992k, ELR STAT. RCRA §§ 1001-11012.

13. Id. § 9613(h), ELR STAT. CERCLA § 113(h).

14. N.J.S.A. 58:10-23.11.

15. S. 1834 § 206, 140 CONG. REC. S1064 (daily ed. Feb. 7, 1994).

16. See, e.g., Tex Tin Corp. v. U.S. Environmental Protection Agency, 992 F.2d 353, 23 ELR 20823 (D.C. Cir. 1993); Anne Arundel County v. U.S. Environmental Protection Agency, 963 F.2d 412, 22 ELR 21171 (D.C. Cir. 1992).

17. S. 1834 §§ 302-03, 140 CONG. REC. S1064-65 (daily ed. Feb. 7, 1994). Section 302, "State Voluntary Response Programs," lays out guidelines for state programs. Section 303, "Site Characterization Program," deals with the technical assistance program.

18. See, e.g., S. 773, 103d Cong., 1st Sess., 139 CONG. REC. S13171 (daily ed. Oct. 6, 1993).

19. 42 U.S.C. § 9604(e), ELR STAT. CERCLA § 104(e).

20. S. 1834 § 401, 140 CONG. REC. S1065 (daily ed. Feb. 7, 1994).

21. 42 U.S.C. § 9622(e)(3)(B), ELR STAT. CERCLA § 122(e)(3)(B).

22. Id. § 9606, ELR STAT. CERCLA § 106.

23. Id. § 9606(b)(1), ELR STAT. CERCLA § 106(b)(1); 42 U.S.C. § 9607(c)(3), ELR STAT. CERCLA § 107(c)(3).

24. S. 1834 § 402(b)(3), 140 CONG. REC. S1065 (daily ed. Feb. 7, 1994). The NCP is codified at 40 C.F.R. pt. 300.

25. See David M. Moore, The Divisibility of Harm Defense to Joint and Several Liability Under CERCLA, 23 ELR 10529 (Sept. 1993).

26. See, e.g., Solid State Circuits v. U.S. Environmental Protection Agency, 812 F.2d 383, 17 ELR 20453 (8th Cir. 1987); Wagner Elec. Corp. v. Thomas, 612 F. Supp. 736, 15 ELR 20977 (D. Kan. 1985); United States v. Reilly Tar & Chem. Corp., 606 F. Supp. 412, 15 ELR 20348 (D. Minn. 1985).

27. 42 U.S.C. § 9606(b)(2), ELR STAT. CERCLA § 106(b)(2).

28. S. 1834 § 402(d), 140 CONG. REC. S1065 (daily ed. Feb. 7, 1994).

29. 42 U.S.C. § 9607, ELR STAT. CERCLA § 107. Section 406 of the bill, S. 1834 § 406, 140 CONG. REC. S1067 (daily ed. Feb. 7, 1994) would make conforming changes to CERCLA § 113, 42 U.S.C. § 9613, ELR STAT. CERCLA § 113.

30. Defined in § 605 of the bill. S. 1834 § 605(i), 140 CONG. REC. S1072-73 (daily ed. Feb. 7, 1994).

31. S. 1834 § 403(a), 140 CONG. REC. S1065-66 (daily ed. Feb. 7, 1994).

32. 42 U.S.C. § 9607(a)(1), ELR STAT. CERCLA § 107(a)(1).

33. S. 1834 § 403(a), 140 CONG. REC. S1065-66 (daily ed. Feb. 7, 1994).

34. Created by § 605 of the bill. Id. § 605(i), 140 CONG. REC. S1072-73 (daily ed. Feb. 7, 1994).

35. Id. § 403(a), 140 CONG. REC. S1065-66 (daily ed. Feb. 7, 1994). MSW and sewage sludge are defined in § 605 of the bill. S. 1834 § 605(i), 140 CONG. REC. S1072-73 (daily ed. Feb. 7, 1994).

36. Superfund Reform Act of 1994: Hearings on H.R. 3800 Before the Subcomm. on Transportation and Hazardous Materials of the House Comm. on Energy and Commerce, 103d Cong., 2d Sess. (1994) (statement of Carol M. Browner, Administrator, U.S. EPA).

37. S. 1834 § 403(b), 140 CONG. REC. S105-66 (daily ed. Feb. 7, 1994).

38. 42 U.S.C. § 9607(a)(4)(A), ELR STAT. CERCLA § 107(a)(4)(A).

39. S. 1834 § 404(d), 140 CONG. REC. S1066 (daily ed. Feb. 7, 1994).

40. Id. § 404(g), 140 CONG. REC. S1066 (daily ed. Feb. 7, 1994).

41. 42 U.S.C. § 9601(33), ELR STAT. CERCLA § 101(33).

42. 2 F.3d 1265, 23 ELR 21345 (3d Cir. 1993).

43. See, e.g., United States v. R.W. Meyer, Inc., 889 F.2d 1497, 20 ELR 20319 (6th Cir. 1989), cert. denied, 494 U.S. 1057 (1990).

44. The bill does not in any way limit the types or amounts of costs that EPA will be seeking as direct and indirect costs under its upcoming final rule on cost recovery. See 57 Fed. Reg. 34742 (Aug. 6, 1992) (proposed rule). Rather, several provisions in the bill appear designed to insulate that rule from challenge on statutory grounds.

45. 42 U.S.C. § 9601(14), ELR STAT. CERCLA § 101(14).

46. Id. § 9622(f), ELR STAT. CERCLA § 122(f).

47. S. 1834 § 408(e), 140 CONG. REC. S1067-68 (daily ed. Feb. 7, 1994).

48. Id. § 408(k), 140 CONG. REC. S1068 (daily ed. Feb. 7, 1994).

49. Id. § 409, 140 CONG. REC. S1068-70 (daily ed. Feb. 7, 1994).

50. Id.

51. Id.

52. Id.

53. Id.

54. Id.

55. 42 U.S.C. § 9622, ELR STAT. CERCLA § 122.

56. Telephone Interview with Thomas Betts, RODs Database Technician, U.S. EPA, Washington, D.C. (Feb. 10, 1994).

57. See, e.g., Environmental Transp. Servs., Inc. v. ENSCO, Inc., 969 F.2d 503, 22 ELR 21361 (7th Cir. 1992) (discussing the Gore factors).

58. S. 1834 § 409, 140 CONG. REC. S1070 (daily ed. Feb. 7, 1994).

59. Model Decree for Remedial Design and Remedial Action, 56 Fed. Reg. 30996 (July 8, 1991) (ELR ADMIN. MATERIALS 35383).

60. S. 1834 § 502, 140 CONG. REC. S1070-71 (daily ed. Feb. 7, 1994).

61. Id.

62. Id.

63. See 42 U.S.C. § 9621(d), ELR STAT. CERCLA § 121(d).

64. S. 1834 § 502, 140 CONG. REC. S1070-71 (daily ed. Feb. 7, 1994).

65. Id. § 502, 140 CONG. REC. S1071 (daily ed. Feb. 7, 1994).

66. Id. § 201, 140 CONG. REC. S1062-63 (daily ed. Feb. 7, 1994).

67. Id. § 503, 140 CONG. REC. S1071 (daily ed. Feb. 7, 1994).

68. Id. § 507, 140 CONG. REC. S1072 (daily ed. Feb. 7, 1994).

69. See 40 C.F.R. § 300.430(f).

70. See id. § 300.430(a)(1)(iii).

71. S. 1834 § 506, 140 CONG. REC. S1072 (daily ed. Feb. 7, 1994).

72. Guidance on Implementation of the Superfund Accelerated Cleanup Model (SACM) Under CERCLA and the NCP (OSWER Directive No. 9203.1-03) (July 7, 1992) (ELR ADMIN. MATERIALS 35493).

73. Pub. L. No. 99-499, 100 Stat. 1613 (1986).