30 ELR 10648 | Environmental Law Reporter | copyright © 2000 | All rights reserved

Superfund in the 106th Congress

Mr. Openchowski is a senior attorney in the Office of General Counsel of the U.S. Environmental Protection Agency (EPA). His first ELR Dialogue, Bankruptcy Is Not an Answer: A Rebuttal, was published in 1985 ( 15 ELR 10314 (Oct. 1985)). His most recent, A Shorter, Simpler Approach to Superfund Reauthorization, appeared in 1997 ( 27 ELR 10357 (July 1997)). The views expressed in this Dialogue are those of the author and do not represent the views of any federal agency or department.

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By the beginning of the 106th Congress, comprehensive legislative reform of the Superfund statute¹ had consumed six fruitless years of effort. Adopting a new approach, the Administration decided to seek narrow, targeted legislation. In testimony that would be repeated several times in 1999,² the U.S. Environmental Protection Agency (EPA) expressed support for specific legislative authority to continue its ongoing brownfields program,³ provide a limited number of liability clarifications that would further enhance remediation of brownfields sites,⁴ and reinstate the industry taxes designed to underwrite in large part the federal cleanup program.⁵

This shift in position was prompted by a number of events. Administrative reforms initiated by EPA in the mid-1990s were responsible for significant improvements in the pace of cleanup and had tempered criticism of the program's fairness and performance. Also, with the passage of time, the cleanup program had advanced to a point where the vast majority of priority sites were already being addressed under the existing statutory and regulatory framework, so that significant legislative changes had the potential to cause serious implementation delays and a new round of high transaction costs. Finally, broader efforts to reauthorize the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) had failed repeatedly due to deep-rooted differences of opinion in Congress and among private-party stakeholders over the correct direction the program should take. In the tense, polarized political climate of early 1999, it seemed unlikely that there could be a bipartisan consensus that would bring Capitol Hill and the White House together on a wide-ranging reauthorization bill containing complex issues that had been so controversial for so long.

Notwithstanding the Administration's stated preference for narrow Superfund legislation,⁶ several broad bills were introduced during the first session of the 106th Congress.⁷ In the face of the Administration's strong opposition, two House committees marked up and reported out separate comprehensive Superfund bills.⁸ In the Senate, the Environment and Public Works Committee was poised to also report out a similar piece of legislation, but chose not to proceed with its markup.⁹

This Dialogue will examine some of the more prominent features of these legislative proposals.

Allocation

When the concept of an allocation process was first suggested in the Superfund context during the 103d Congress, one of its primary purposes was to foster more settlements. By providing an out-of-court process to assign responsibility for cleanup costs that included payment by the United States of an "orphan" share,¹⁰ allocation was supposed to [30 ELR 10649] promote more fairness in a liability regime that was considered by many potentially responsible parties (PRPs) to be too powerful and unfair. In turn, more fairness was supposed to lead to a greater number of more efficient private-party cleanup settlements, reducing litigation and its associated transaction costs for everyone involved.

All three bills that have received committee consideration in the 106th Congress contain detailed allocation provisions. As currently drafted, they all would require a mandatory allocation, even if it would not facilitate a settlement providing for complete cleanup at a site. Furthermore, an allocation would have to be conducted even if it did nothing to expedite site remediation, or promote fairness (especially for de minimis parties and other small contributors), or lead to a net decrease in transaction costs for all parties involved at the site. Thus, even though the legislative proposals in appearance are shorter and narrower in scope than previous versions that have been introduced since the 103d Congress, they would not achieve the original objectives. More importantly, they would slow down the current pace of cleanup.

Mandatory Allocations

All three bills would require allocation even if it would not result in a quicker settlement and cleanup. In fact, some aspects of the proposals could turn allocation into a long, drawn-out process. For example, even though EPA would be responsible for ensuring that "a fair and equitable allocation of liability is undertaken," the actual process and procedure would be left to the PRPs.¹¹ Furthermore, by omitting time frames and not setting firm time limits for concluding the allocation process, the bills invite delay.

Experience has shown that many PRPs have little desire to resolve their Superfund liability quickly, especially if they might have to pay a large share of an expensive cleanup.¹² In addition, establishing the respective obligations of numerous parties in a fair manner can be a time-consuming exercise at large sites with complex fact patterns.¹³ In order to do so accurately and most equitably, all parties with a financial interest in the allocation would need to be present and participate at the same time. The track record for many steering committees suggests that leaving parties with quite disparate interests (i.e., small contributors who want to cash out quickly and large contributors who would prefer to pay as late as possible) to their own devices on matters of timing and process would not necessarily be conducive to an expeditious allocation acceptable to all involved. Ironically, the small contributors purportedly getting liability relief elsewhere in the legislative proposals, such as small businesses who sent only trash to a landfill, would be trapped in a long process until everyone's shares could be determined.

Furthermore, the very existence of a mandatory allocation process would dissuade PRPs from stepping forward early and offering to assume responsibility for a complete cleanup of a site. Instead, they would be inclined to wait for the allocation process to run its course, and then only pay a "fair share" of the total. Cash outs would replace more efficient, comprehensive private-party cleanup settlements, leaving EPA to conduct a greater proportion of response actions in the long run.¹⁴

To maintain the current pace of cleanup in the short term, EPA also would have to finance more response actions, since it could take months or years before allocation procedures were developed and started producing some settlements.¹⁵ Significantly, the current legislative proposals do not make the necessary fiscal adjustments to compensate for a smaller number of PRP-lead cleanup settlements.¹⁶ In fact, the bills would effectively leave the Agency with less money for remedial actions than the amounts presently appropriated, when diminishing authorized spending levels and the cost of other new requirements contained in the bills are considered together.¹⁷ With fewer PRP-lead cleanup settlements and less money available to spend on remedial actions, the pace of cleanup inevitably would decline.

In theory, one alternative for maintaining EPA's current cleanup pace might be to issue unilateral administrative orders (UAOs) under CERCLA § 106¹⁸ as a substitute for settlements. All three bills reserve the Agency's authority to issue [30 ELR 10650] UAOs,¹⁹ and provide for reimbursement to PRPs that end up spending more than their allocated share of the total response costs.²⁰ Even so, an approach based on UAOs would not achieve the same number of overall cleanups.

Unilateral Orders

CERCLA § 106 provides a powerful tool for the United States by authorizing EPA to issue a UAO in order to abate an imminent and substantial endangerment caused by a release, or threat of release, of a hazardous substance.²¹ Forcing unwilling parties to perform a response action, however, is ineffective where issues concerning the scope andnature of the remedial work, as well as the timing and content of deliverables (such as workplans) can all lead to significant disagreement.²² Unlike the settlement context, disputes under a UAO framework can easily degenerate into a confrontational posture that causes delays in remedy implementation, either due to poor performance or noncompliance.²³

While the threat of treble damages now deters noncompliance,²⁴ language in the three bills could seriously diminish that deterrent effect for several reasons. First, treble damages are based on the amount EPA spends because a PRP has failed or refused to comply. Since none of the bills provide EPA with increases in funding levels to pay for more response actions, it is not clear how many new sites could be pursued as Superfund-lead. Accordingly, the basis for assessing treble damages might well be minimal at any given site. Second, the very existence of an allocation process might provide a basis for a PRP to argue that it has "sufficient cause" for noncompliance under both §§ 106(b) and 107(c)(3), at least pending the conclusion of the process.²⁵ Third, even if a court did assess treble damages, a PRP might successfully argue that its share of that amount should be limited to whatever percentage share it receives through the allocation.

Without the deterrent effect of treble damages, disputes over performance could easily lead to noncompliance. In those cases, the United States might be forced to file a judicial enforcement action to compel performance. Litigating to enforce the terms of a UAO by itself would cause substantial delays in the remediation process. In addition, that litigation would serve to lift the bar on preenforcement review contained in CERCLA § 113(h).²⁶ As a result, a noncomplying PRP would be rewarded with an early opportunity to challenge EPA's remedy.²⁷ Litigation to finally resolve remedy selection issues and the underlying UAO enforcement action could take years, adding a significant delay factor.

Reimbursement

In theory, a PRP largely responsible for contamination at a site might be willing to conduct the entire cleanup if it were reimbursed for costs incurred in excess of its share.²⁸ All three bills include a mechanism for EPA to reimburse a PRP who, pursuant to a UAO, assumes responsibility for the entire cleanup during the pendency of an allocation process. However, that reimbursement mechanism is not likely to be attractive to PRPs for several reasons.

First, a PRP would have to wait a long time in many instances, since EPA would be unable to offer reimbursement until completion of the allocation process. Only when relative obligations (or shares) of all PRPs were revealed—as well as the orphan share assumed by the United States—would EPA be in a position to accurately reimburse the PRP conducting the cleanup for costs it had incurred above and beyond its actual share. As discussed earlier, some PRPs would have no incentive to resolve issues quickly in an allocation and could hold up the process. This potential for delay would make many PRPs think twice before agreeing to advance the money needed to conduct a full cleanup.

Second, given previous concerns and intense congressional scrutiny over contractor fraud, waste and abuse in the Superfund program, it is reasonable to assume that EPA would put in place very strict accounting practices to govern any reimbursement process.²⁹ Carrying out a rigorous oversight system to ensure the legitimacy of reimbursement claims and their underlying response costs would necessarily be time-consuming. Even if the Agency did not adopt overzealous accounting techniques, many PRPs might be deterred by the potential for excessive scrutiny.³⁰ On balance, then, holding out the possibility of reimbursement is unlikely to entice large numbers of PRPs to willingly assume responsibility for conducting complete cleanups, or to discourage poor performance or noncompliance with their underlying UAOs.

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Impact on the Current Pace of Cleanup

In sum, mandatory allocations would not produce a greater number of early private-party settlements for comprehensive site remediation. Furthermore, an increased reliance on UAOs, which can bog down in disputes over performance or require enforcement actions to cure noncompliance, would not compensate for the lack of settlements. If EPA were to tap the Superfund to make up the difference, it would be forced to spread out its limited resources over more sites. The net result would be a much slower pace of cleanup overall.

For the past decade, the federal government has consistently been able to obtain private-party cleanup commitments worth approximately $ 1 billion annually, all without an allocation process in place. The settlements that in large part reflect those commitments are an important reason for the current pace of cleanup. If Congress as a legislative policy matter chooses to impose a mandatory allocation process, it will be placing the financial interests of some PRPs ahead of others, and ahead of expeditious remediation of contaminated sites. At the same time, it will be making a conscious decision to slow down the Superfund program and extend its life-span considerably.

State Role

Every major federal environmental law contains a provision allowing authorized states to administer the federal program on behalf of EPA.³¹ To maintain a consistent minimum floor of human health and environmental protection across the country, EPA is responsible for reviewing state programs and authorities on an on-going basis. In addition, each statute provides EPA with the authority to preserve that minimum floor.³²

All three bills contain provisions addressing the state role in site cleanup. One common feature they share is a limitation on the use of federal authorities that would be unique and troubling in both its impact and precedent. In taking this approach to assign relative cleanup responsibilities, these provisions actually may undermine existing state programs, eliminate incentives for private-party cleanup, and severely restrict public participation opportunities.

Limitations on Federal Authorities

All three bills would prohibit "the United States and any other person" from using Superfund authority at sites addressed by a state cleanup program. The prohibition would cover both CERCLA § 106 abatement authority, as well as CERCLA § 107 cost recovery authority. H.R. 2580 would go one step further and apply the prohibition to the use of the Resource Conservation and Recovery Act's (RCRA's) federal abatement and citizen suit authorities as well.³³

In addition, the bills contain narrow exclusions from the basic prohibition.³⁴ These would include situations where the state requests EPA assistance, or when contamination has migrated across state boundaries.³⁵ Significantly, the bills all contain a similar exclusion that would lift the prohibition when EPA makes a determination that a site poses a public health emergency and that the state response action is inadequate. Although worded somewhat differently, all three bills at a minimum would introduce a new, higher threshold for EPA to act. To the extent that it would require EPA to wait until a situation poses an "emergency," the new standard would constrain the Agency's ability to respond to public health threats before they have a chance to materialize into concrete harm.³⁶

The scope of the prohibition is broad and could even cover the most contaminated sites. While all three bills would exclude sites currently listed on the national priorities list (NPL) from the prohibition,³⁷ they also would restrict EPA's authority to add to the current NPL.³⁸ As a result, it would be possible for the prohibition to delay or interfere with the federal government's ability to act in response to a serious threat to human health and the environment, where a state has actively opposed or passively delayed a site listing.

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Impact on the States

In a recent report on state cleanup programs, the U.S. General Accounting Office (GAO) found that states believe the potential application of the federal program is "an important element in obtaining the cooperation of responsible parties in the state program."³⁹ The report also found that states believe that "a lessening of the Superfund program's more rigorous cleanup requirements and liability standard could negatively affect the state programs."⁴⁰ This perspective has been presented frequently in testimony by state officials during the Superfund reauthorization debates over the past several years. For example, the National Association of Attorneys General (NAAG) has testified consistently in support of maintaining the strong liability scheme in the current statute.⁴¹

The state role provisions in the three bills purportedly are intended to provide a clearer division of labor for addressing contaminated sites. Yet, by placing tight restrictions on EPA's enforcement authorities, the approach in fact would chip away at the CERCLA liability scheme and undermine the strong federal backstop many states have consistently supported. For example, establishing a presumption that EPA cannot seek cost recovery or take other enforcement action against a party causing or contributing to contamination at a site would effectively limit, and could even eliminate, that party's liability to the federal government.⁴² Without that credible leverage, states in turn would have more difficulty securing private-party cleanup commitments.⁴³ That could have serious consequences on the ability of state programs to perform, just at the moment when the bills would place much greater emphasis and reliance on them. It also could weaken the positive influence the Superfund liability scheme has had on changing industry practices with regard to proper hazardous waste management, creating more contamination problems down the road.

Impacts on Private-Party Initiative and Public Participation

The state role provisions also remove an important incentive for private parties to undertake cleanup on their own. The prohibitions on use of CERCLA cost recovery authority in all three bills apply to "any other person," as well as to the United States.⁴⁴ As a result, private parties would not be able to recover cleanup costs they had incurred for sites enrolled in a state cleanup program. This would be true even if they incur costs to neutralize an imminent and substantial endangerment before any action is taken to remediate the site under a state program.⁴⁵ Rather than stimulating more cleanup activity, the bills in fact would discourage private parties from taking the initiative.⁴⁶ Ironically, this approach could impede, rather than enhance, the cleanup and redevelopment of brownfields sites, thus undermining one of the key objectives of all three bills.

The bills also fall short in ensuring adequate opportunities for public participation in cleanup decisions. While two of the bills include public participation as one of the qualifying criteria for a state program,⁴⁷ they do not require a state to achieve—and maintain—a minimum level of public participation comparable to what would be provided under federal law.⁴⁸ Nor do they provide EPA with any opportunity to [30 ELR 10653] review and evaluate the public participation portion of a state program to ensure its adequacy. In light of a recent GAO report that found many states have inadequate opportunities for public participation,⁴⁹ the bills could result in a sharply curtailed role for communities situated near polluted sites.

H.R. 2580 contains an additional provision that would hamper the public's opportunity to participate in cleanup decisions even further. Section 102(e) would obviate the need to obtain a permit for sites covered by the enforcement prohibition contained in the bill's state role provision, even though the permit process is often the most effective administrative avenue for the public to express its views and concerns. At first glance, this permit waiver appears similar to CERCLA § 121(e), which allows EPA to bypass purely procedural requirements of "applicable or relevant and appropriate" federal and state laws when it conducts entirely on-site remedial actions.⁵⁰ CERCLA, however, contains a number of other safeguards that are missing from H.R. 2580. For example, in contrast to the Superfund statute, nothing in the bill would ensure the functional equivalent of a permit process in order to provide full public participation in the cleanup decision.⁵¹ While § 102(b) of the bill would require states to certify that their response programs include "meaningful opportunities for public participation," there are no specific requirements comparable to CERCLA §§ 113(k) & 117.⁵² By omitting such safeguards, the bill could leave communities in many states without a voice.

Accountability

In contrast to the other major federal environmental statutes, the state role provisions would be essentially self-executing. Thus, a state program under H.R. 1300 would qualify as long as there is a "state law that specifically governs response actions for the protection of public health and the environment."⁵³ That law would not need to include any public participation requirements or minimum cleanup standards, and the bill gives EPA no opportunity to determine whether the state program has been designed, or is being operated, in a protective manner. While H.R. 2580 and S. 1537 both have at least some minimum qualifying criteria, they are vaguely worded and do not provide for EPA review to ensure the adequacy of state cleanup programs. Under all three bills, then, the limitations on federal authority could be triggered in states with inadequate or inexperienced response programs.⁵⁴ Furthermore, the bills do not meaningfully address the need to periodically review state programs to ensure their continued adequacy. Unlike the other major federal environmental laws, there is no provision that would allow EPA to withdraw a state program if it no longer meets the threshold minimum qualifying criteria.⁵⁵

In addition, the bills do not deal with the potential real-world monetary impacts of the prohibition. States would not be financially accountable in situations in which they request EPA to become involved, or when EPA invokes the "public health emergency" exemption. As a result, unqualified states would not face the fiscal consequences of their mistakes or omissions when the federal government later has to incur response costs in order to protect human health. Only S. 1537 appears to impose some accountability by providing that "the President may require that the State reimburse the Hazardous Substance Superfund for response costs incurred by the United States."⁵⁶ Still, this provision would only apply where the state "is unwilling or unable to take appropriate action to address a public health or environmental emergency."⁵⁷ Furthermore, it would not address the situation in which a state requests EPA assistance at a site that has deteriorated to the point (without being an emergency) where a state no longer could or wanted to clean it up. Nor does the provision set forth the mechanics of reimbursement. With no procedural leverage provided, it is unclear how the President would be able to require a state to pay the federal costs incurred.

Maintaining an Effective Partnership

The current Superfund law establishes the relative roles of the federal and state governments. By excluding at least currently listed NPL sites from the scope of the enforcement prohibition, the three bills implicitly accept that some sites are uniquely of federal interest. At the other end of the spectrum, there are sites at which the federal government clearly has no interest due to the low levels of contamination. In the absence of a serious potential risk to human health or the environment, there is no reason to expect EPA to take action at those sites and, in fact, there is virtually no evidence to show that the Agency has ever threatened to become involved.

For the gray area in between these two extremes, any refinement of CERCLA's current division of responsibilities [30 ELR 10654] needs to carefully balance the desire of qualified states to perform cleanups and the need to preserve the federal government's long-established role in maintaining a minimum floor of protection across the country. This is especially true where the gray area is comprised of sites that are highly variable. With many unknown conditions, they are not well suited to categorical assumptions about their relative complexity. Nor are state programs—with their widely varying levels of experience, authorities, and resources—amenable to a one-size-fits-all, self-executing authorization approach.⁵⁸

Since the potential application of CERCLA's joint and several liability scheme is recognized by states as a useful tool in leveraging private-party cleanups, Congress should not undermine those states by weakening that same liability scheme when it seeks to delineate relative cleanup responsibilities. Nor should Congress ignore the structure of the other major federal environmental laws that were designed to achieve a uniform, minimum level of protection across the country. The current framework has brought about significant improvements not only in cleanup work accomplished, but perhaps even more importantly, in altering poor disposal practices. Before Congress alters that framework in a way that could seriously undercut state authorities and dampen private-party initiative, it should carefully consider the record that has been presented by state officials and compiled by the GAO.⁵⁹

Remedy Selection

While much shorter than legislative proposals advanced in previous years, all three bills would materially alter CERCLA's existing remedy selection process⁶⁰; as such, they would require amendments to the national contingency plan (NCP). Some of the key changes would involve the current preference for treatment and permanent remedies, "relevant and appropriate" cleanup standards, the conduct of risk assessments, and the use of institutional controls. Through these changes, the bills would allow more contamination to stay in place, leaving more work for EPA to do in the future. Once again, rather than heading for a "ramp down" of the program, the bills would extend Superfund's life and make it more expensive in the long run.

NCP Revisions

One inevitable consequence of the new remedy selection requirements would be a rulemaking to revise the NCP. As the "blueprint" for the federal cleanup program, the NCP contains the procedures, criteria, and overall framework for making decisions under Superfund.⁶¹ After the last round of CERCLA amendments in 1986, it took the Agency over three years to rewrite the NCP. The rulemaking process then was followed by a lengthy, unsuccessful legal challenge before the D.C. Circuit Court of Appeals.

Although some of the changes in the three bills purportedly are merely intended to codify current Agency policies,⁶² they would still need to be incorporated into the blueprint by means of a notice-and-comment rulemaking amending the NCP. A number of other changes clearly would go beyond mere clarifications of existing Agency policy.⁶³ It is safe to assume that the differences of opinion on many of these changes would be significant. It is also safe to assume that those differences of opinion among the full range of diverse and conflicting stakeholders—PRPs, states, communities, and environmental groups—would lead to a legal challenge to the Agency's final NCP revision.⁶⁴ Ironically, some of the very EPA policy directives that have been insulated from legal challenge would become fair game for lawsuits once Congress codified them and in effect forced them into a rulemaking mode.⁶⁵

In inviting another judicial challenge to the NCP through statutory changes to the remedy selection process, Congress would both promote additional litigation (in a program that has been criticized often on Capitol Hill for its propensity to fuel the private bar) and disrupt the pace of cleanup. For example, the willingness of private parties to agree to perform remedial actions would be diminished to the extent the new remedy selection provisions make substantive changes designed to weaken the current statutory preference for permanence [30 ELR 10655] and treatment. Rather than sign settlements implementing remedies based on the current, more stringent NCP requirements, many PRPs would chose to wait in the hope that a revised NCP would allow them to conduct a less expensive remedy. Negotiations over settlement agreements at a minimum would become more complicated, and it is likely that fewer consent decrees would be signed. Together with the impact of the allocation provisions discussed earlier, this would put even more pressure on EPA to fund response actions in order to maintain the current pace of cleanup (even though the bills would not give the Agency more money to do so).⁶⁶

Altering Protectiveness and the Current Preference for Permanence and Treatment

The existing Superfund law contains a statutory preference for treatment remedies that permanently reduce mobility, toxicity, and volume of hazardous substances.⁶⁷ All three bills contain language that would explicitly weaken that preference.⁶⁸ They also include other provisions that would affect the current remedy selection process, such as modifying the consideration of federal and state cleanup standards that are "relevant and appropriate."⁶⁹ One bill even would establish a specific, less stringent across-the-board cleanup standard solely for dry cleaners.⁷⁰

Other changes contained in the bills would scale back the protectiveness of CERCLA remedies in a subtler manner.⁷¹ For example, the bills would establish new requirements governing EPA's Superfund risk assessments. By omitting certain aspects of the Agency's current approach (e.g., consideration of reasonable maximum exposure, excess upper bound lifetime cancer risk, and other conservative assumptions to compensate for lack of complete scientific data) while specifically listing new requirements,⁷² the bills would fundamentally change EPA's analytical framework. In shifting the focus of risk assessments, the bills would provide decisionmakers with a different set of reference points for evaluating risks and the relative effectiveness of various remedial alternatives. That, in turn, would have a direct impact on the types of response actions that would be considered protective. Without overtly changing the cleanup objectives of the statute, the bills nonetheless would erode the current underlying standard of protecting human health and the environment. Furthermore, by doing so in an opaque manner, the bills would avoid the political fallout of openly and directly weakening existing environmental standards.

The bills also would take matters of scientific judgment and put them at the mercy of litigators. In H.R. 1300, for example, EPA would be required to use information submitted to the Agency concerning potential exposure, even if it was not useful in setting a cleanup standard.⁷³ That information would have to be included in the administrative record documenting the decision, as well.⁷⁴ To the extent that the bills require new information and analysis to be included in risk assessments that are then included in the administrative record, they make challenges to Agency decisions easier to pursue.

For example, under S. 1537, all EPA administrative records would have to contain the central estimate of risk, the lower bound estimate of risk, any peer-reviewed study prepared by a PRP that disagrees with EPA's risk assessment, and an analysis reconciling inconsistencies in scientific data.⁷⁵ This would have to be done, even if in EPA's judgment it was not appropriate or useful in making a protective remedy decision.⁷⁶ Since judicial review under § 113(j) of the statute is based on the administrative record, litigants would have a built-in supply of data—some of it unwillingly [30 ELR 10656] generated by the Agency itself—that could be used to undermine EPA's decision.⁷⁷ This approach could be especially useful in challenging the cost-effectiveness of remedies in cost recovery actions.

Furthermore, to the extent the bills statutorily codify certain aspects of the risk assessment process, they would "freeze" current approaches and make it more difficult for the Agency to update its practices by applying new, more refined and accurate techniques. In addition, the risk assessment provisions would require EPA to divert scarce time and resources to new analysis. As the Agency is forced to process and produce additional data that may not be useful in ensuring fully protective remedies, the decision process will be delayed and the pace of overall cleanups will slow down.

Another dilution of the existing protectiveness standard can be found in the new language on institutional controls.⁷⁸ H.R. 1300 would add specific statutory authority that not only would allow the use of this mechanism,⁷⁹ but also would permit institutional controls to comprise the only response action at a site.⁸⁰ The bill authorizes EPA to acquire a "hazardous substance property use" easement to restrict land use at a site, and provides that such "easement shall be enforceable in perpetuity."⁸¹

The enforcement provision for these new easements, however, would be ineffective. The bill provides that any violation "shall have the same effect as failure to comply with an order issued under section 106,"⁸² and that "relief may be sought" in a variety of ways. Yet, only one of the four enforcement options listed—§ 106(b)(1)—might be viable,⁸³ and it can only be used by the United States (not states or local community members directly affected by a Superfund site).

Section 106(b)(1) states that "any person who, without sufficient cause, willfully violates or fails to comply with" an administrative order is subject to civil penalties of $ 25,000 per day. However, when read in combination with other provisions in the bill, it is doubtful that the terms of a hazardous substances easement could be effectively enforced. For example, § 301(a) of H.R. 1300 would add a new statutory definition of the term "sufficient cause," to include parties that are not liable under CERCLA § 107.⁸⁴ At the same time, § 302 of H.R. 1300 would amend the language in § 107 by adding a new provision for owners and operators. Under the new § 107(b), there would be no CERCLA liability for a person who acquires property "after disposal or placement of hazardous substances for which liability is alleged under subsection (a)," who "did not cause or contribute to" the release of those hazardous substances, and who "exercised appropriate care with respect to such hazardous substances." This would be true even if the new owner buys the property with full knowledge of the contamination that is present. As written, this provision could insulate future purchasers in the chain of title at a Superfund site protected in whole or in part by an easement, as long as they did not cause any new releases.⁸⁵ By no longer being liable under § 107, those future owners would have a sufficient cause defense, and therefore would be outside the reach of a § 106 enforcement action, and by extension an action to enforce a hazardous substances easement.⁸⁶ Furthermore, the chances of successfully enforcing the terms of an easement would become more remote the longer it extended into the future, and the greater the number of intervening sales of the property from the original owner covered by the easement when it was acquired.⁸⁷

With increased reliance on containment remedies that use institutional controls to prevent exposure (instead of treatment to reduce mobility, toxicity, and volume), cleanup in many cases merely would be postponed. In the interim, this approach clearly would save PRPs money. In the long term, however, it may merely delay the day of reckoning and pass the cost of cleanup on to someone else. As such, it would build a foundation for the next generation of the Superfund program.⁸⁸

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Promoting Better Remedies

Scaling back the current remedy selection provisions would result in less permanent cleanups and an extended life for the Superfund program. A far more effective approach—from a long-term fiscal perspective, as well as a protective point of view—would be for Congress to promote greater opportunities to develop and implement better, less expensive permanent treatment technologies that eliminate contamination problems.

One element of such a Partnership for New Treatment Technologies would be to encourage better risk-sharing arrangements between EPA and PRPs, so that the cost of failure of an innovative approach would not fall solely on the private party trying to find a better solution. A second step would be to create real-world financial incentives for private-sector research and development of new technologies that would make permanent treatment remedies more accessible at all CERCLA sites.⁸⁹ Finally, the Partnership should promote a more prominent federal role than currently exists in encouraging, developing, and funding potentially useful advances in innovative technologies.⁹⁰

The current situation involving methyl tertiary butyl ether (MTBE) contamination of groundwater shows how a broader perspective on innovative technology could be useful.⁹¹ MTBE is a gasoline additive that was developed to boost octane (in place of lead) and provide cleaner burning oxygenated fuel. While MTBE provides benefits for reducing air pollution, its adverse impact on groundwater is raising concerns across the country.⁹² As its odor and potential health effects threaten more and more drinking water supplies, federal and state regulators have decided to phase out its use and switch to another alternative.⁹³

Fundamentally, the goal is to find cleaner combustion engines.⁹⁴ The efforts to develop gasoline additives like MTBE have been directed at the chemistry of the fuel before it is used in the engine; other technological advances in reducing mobile source emissions (e.g., the catalytic converter) have focused on treating residuals after the pollution has already been created by the engine. A more direct and effective approach would address the combustion process itself—the conversion of fuel into energy that takes place inside the engine cylinder. The ultimate source reduction/pollution prevention solution would be to ensure complete combustion of fuel before it leaves the cylinder. This not only could alleviate the need for post-combustion cleaning by catalytic converters, but also could eliminate the need for gasoline additives like MTBE in the first place. In addition, complete combustion could lead to much-improved fuel efficiency—at least two times the miles per gallon now achieved.⁹⁵ Is it possible to have clean air and better gas mileage using existing fuels in internal combustion engines? Recent advances in microelectronic mechanical systems (MEMS) and computer chips make this potential technology much more than a pipe dream.⁹⁶ Unfortunately, the federal government has focused its energies on more traditional technologies and has done virtually nothing to explore the possible application and development of a controlled combustion engine in automobiles.

In the context of Superfund, an aggressive program to explore and fund innovative approaches for solving difficult remediation problems is needed. Rather than diluting the CERCLA liability scheme and the preference for permanence and treatment, both of which provide useful leverage for making technology-forcing advances, Congress should design a strategy that would encourage the private sector to find ways to eliminate contamination problems like MTBE. Otherwise, by allowing remediation to be postponed, it will be choosing to extend the life of the current Superfund program well into the future.

Liability Relief

The three bills contain a number of liability exemptions and limitations. Some have been routinely included since the 103d Congress, even though the underlying need for them may have been diminished by intervening guidance or administrative [30 ELR 10658] reforms.⁹⁷ Others address difficult issues that have been lightning rods for controversy and have helped derail previous comprehensive reauthorization packages.⁹⁸ If nothing else, all of these provisions would offer fertile ground for the private bar in a new round of Superfund liability litigation.⁹⁹

Small Business

Rather than being based on actual, demonstrated need, some exemptions appear to be included more for political reasons and out of habit.¹⁰⁰ A prime example that appears in all three bills would give separate liability relief for small businesses.¹⁰¹ The special treatment provided raises several questions. First, the threshold qualifying criteria in the bills—75 full-time employees and $ 3 million in annual revenues—do not appear tailored to the concerns identified in testimony over the years.¹⁰² According to testimony by the National Federation of Independent Businesses (NFIB), "almost all small businesses are very small—so called Mom-and-Pop, Main Street, family enterprises. More than half of businesses with employees employ fewer than 5 people. Almost 90 percent of employers employ fewer than 20."¹⁰³ In addition, the typical NFIB member has "5 to 8 workers with gross sales of $ 250,000-$ 350,000."¹⁰⁴

Second, most of the political attention about Superfund's impact on small business has centered on the plight of "Mom and Pop" establishments (such as pizza parlors and printers), who have been caught in the liability net at large municipal landfills, such as Adams County (Keystone) in Pennsylvania and Quincy in Illinois. However, the small business exemptions in the three bills would cover disposal of any hazardous substances, not just trash. Also, eligibility would not be limited by the volume or toxicity of the hazardous substances contributed by the small business.¹⁰⁵ Finally, in light of the numerous other provisions designed to provide liability relief to small businesses—including those dealing with expedited settlements based on ability to pay considerations, de micromis parties, municipal solid waste, prospective purchasers, and contiguous landowners—and in light of the thousands of small businesses that have been offered de minimis cash out settlements by EPA over the past several years, the real need for a separate exemption is not readily apparent.

[30 ELR 10659]

Prospective Purchasers

Since 1989, EPA has had a policy offering prospective purchasers of contaminated property a covenant not to sue where they agree to provide substantial environmental benefits (e.g., cleanup) after assuming ownership of a site.¹⁰⁶ By providing liability relief for preexisting releases (as long as the new owner does not exacerbate the contamination), the policy is designed to encourage private-party remediation and subsequent redevelopment.

Both H.R. 2580 and S. 1537 contain similar provisions specifically designed to give liability relief to prospective purchasers.¹⁰⁷ H.R. 1300 takes a different approach by providing broad liability relief for all owners and operators, including prospective purchasers.¹⁰⁸ All three bills, however, suffer from two major shortcomings.

The first is the absence of a reciprocal environmental benefit from the prospective purchaser in exchange for the Superfund liability relief that would be provided. Contrary to EPA's long-standing policy (one resulting in scores of prospective purchaser agreements and substantial brownfields site remediation and redevelopment),¹⁰⁹ no cleanup would be required in order to qualify. Rather than providing an incentive to clean up, the bills would allow a new owner to do nothing more than maintain the status quo while waiting for market forces to make the site more attractive financially. This approach would defeat the underlying purpose of including a provision like this in the first place, in that brownfields remediation could be postponed indefinitely. Real estate speculation, not the leverage of Superfund liability, would control the timing of cleanup.¹¹⁰

The second shortcoming is the inclusion of a new standard of care within the CERCLA liability framework. Currently, an owner must exercise "due care" in order to be eligible for the statutory defense to liability established in § 107(b)(3).¹¹¹ While maintaining the existing due care standard, all three bills would introduce a new measure conduct—appropriate care—into the same liability scheme.¹¹²

The term "appropriate care" has no counterpart elsewhere in the Superfund statute. Nor is the relationship between "due" and "appropriate" care articulated in the bills in order to define the parameters and relative stingency of both terms. Thus, it is not clear exactly what conduct would be expected of a prospective purchaser when dealing with existing environmental contamination. Furthermore, if appropriate care is meant to represent something less than "due" care, the bills do not address the liability consequences of the gap that would be created between the two types of conduct, and who would be responsible for paying for that gap. If nothing else, the inclusion of this new, undefined term would add confusion and generate new opportunities for litigation over the degree of care that should be exercised by prospective purchasers of Superfund sites.

Natural Resource Damages

Liability for natural resource damages (NRDs) is another isssue that has been consistently raised during the Superfind reauthorization debates since the 103d Congress.¹¹³ The fear that NRD liability could subject PRPs to lengthy litigation and large recoveries has prompted numerous efforts to limit the scope of the existing liability provisions. Many of these proposals have been sharply criticized for unreasonably curtailing the ability of federal and state natural resource trustees to obtain adequate compensation for wildlife and habitat impacted by releases of hazardous substances at Superfund sites.

The handling of NRD proposals in the 106th Congress has reflected the controversial nature of this debate, as well as the perception that including a proposal on this subject could torpedo any Superfund reauthorization package. At the markup of H.R. 1300 before the House Subcommittee on Water Resources and Environment, Rep. Michael Simpson (R-Idaho) ended up withdrawing two NRD amendments at the request of the subcommittee chairman Rep. Sherwood Boehlert (R-N.Y.). No NRD amendments were offered during the full Transportation and Infrastructure Committee's markup of the bill two months later. Similarly, there is no provision addressing NRDs in H.R. 2580. During the markup before the Subcommittee on Finance and Hazardous Materials, Rep. W.J. Tauzin (R-La.) offered an NRD amendment that was defeated. When the bill was considered by the full Commerce Committee two weeks later, Representative Tauzin chose not to pursue his proposed amendment on the subject, due in part to a lack of support from his own party.

Only S. 1537 includes legislative language on NRDs. Although less ambitious than earlier proposals, the Senate bill [30 ELR 10660] still would limit the scope of recoveries¹¹⁴ and could require the use of a cost-benefit analysis to gauge the extent of recoveries and their allowable uses.¹¹⁵ Although this language represents a compromise position developed in an attempt to achieve some consensus on the issue, it was still not able to bridge the widely divergent views on the Senate Environment and Public Works Committee (EPW) as it attempted to proceed to full committee markup of S. 1090. Nor did it receive support from the Administration. In fact, the disagreements over NRDs were largely responsible for the several postponements of full EPW markup during the summer of 1999. The subsequent introduction of S. 1537 (largely comprised of S. 1090, with the addition of the NRDs provision) in early August was in effect a placeholder. With Sen. John Chafee's (R.-R.I.) death two months later, the status of S. 1537 remains uncertain, and its chances of success appear somewhat dimmer without his moderating influence on the members of the committee.¹¹⁶

Conclusion

Although somewhat shorter than previous Superfund reauthorization bills, the three legislative proposals that have received committee consideration in this Congress are broad in scope. While described by some as "brownfields" bills, they clearly are intended to do much more than provide legislative direction on EPA's existing program for lightly contaminated and economically reusable brownfields sites. In fact, they leverage the broad political support for brownfields legislation in order to make significant changes to the existing CERCLA statute and its implementing regulations.

The approach in these bills unquestionably is also more subtle. There are no longer any large-scale frontal assaults on the preference for permanent treatment remedies. Nor is there a direct attack on the joint and several liability scheme and its retroactive application. Still, containment remedies and institutional controls are given greater emphasis, and their increased prominence would further eclipse treatment-oriented remedies. The powerful liability scheme is watered down by broad exemptions and an allocation process that, at a minimum, promises a generous federal co-payment. It is also weakened by new restraints on federal enforcement authorities.

In some respects, the bills quietly approximate the "public works" model that appeared to have been abandoned. With no industry tax reinstatement in sight and the Trust Fund surplus now nearly depleted, the federal cleanup program will be underwritten by general revenues, and thereby will be paid for by the American taxpayer. With an allocation scheme that would give priority to dividing responsibility among PRPs over early private-party cleanup settlements, EPA would be forced to do more of the work itself. With greater incentives to cash out, and a larger universe of exempted parties expanding the orphan share, the federal government would become the primary cleanup contractor for most, if not all, sites.

In the process of moving toward this model, the bills would achieve results that seem to be at odds with the apparent objectives of their sponsors. Thus, the bills would slow down the pace of cleanup and extend the life-span of Superfund, even though nominally they are intended to "ramp down" the federal cleanup program.¹¹⁷ They would build the foundation for a second-generation Superfund program, derived from weaker remedies that postpone remediation for many contamination problems, and the unsupervised cleanup decisions of those states that are not yet qualified to select remedies at complex sites. They would trap the small contributors seeking a quick exit from the Superfund process in a lengthy allocation process, even as they hold out the promise of liability relief. They would create new hurdles and weaknesses that would hamper coordination between federal and state officials and diminish, rather than enhance, the effectiveness of state programs and private-party initiatives. And finally, they would invite the lawyers in for a new round of expensive litigation over NCP revisions and the meaning of dozens of new statutory terms, even though members of Congress have loudly criticized the Superfund program for its propensity to generate lawsuits and run up transaction costs.

1. Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. §§ 9601-9675, ELR STAT. CERCLA §§ 101-405.

2. See Testimony of Carol Browner, EPA Administrator, Before the House of Representatives Transportation and Infrastructure Subcommittee on Water Resources and Environment (May 12, 1999); Testimony of Timothy Fields, EPA Assistant Administrator for Solid Waste and Emergency Response, Before the House of Representatives Commerce Subcommittee on Finance and Hazardous Materials (Mar. 23, 1999; Aug. 4, 1999; Sept. 22, 1999).

3. For several years, EPA has carried out a pilot program using grants and revolving loans that assist local governments in characterizing and cleaning up lightly contaminated sites to facilitate their redevelopment.

4. These would include liability clarifications for prospective purchasers and other parties involved in brownfields cleanup and reuse.

5. The petroleum and chemical feedstock taxes expired in 1995.

6. Local government officials also were advocating a targeted approach. See Testimony of the Honorable Jim Marshall, Mayor of Macon, Georgia, on behalf of the U.S. Conference of Mayors, Before the Senate Committee on Environment and Public Works 9-10 (May 25, 1999):

If you can't solve all the problems, a piece of legislation like this one [S. 1090], loaded down with the kinds of arguments that you all have been having with one another now for 6 years, is not going to go anywhere. If it's possible to craft some legislation that's bipartisan and will meet some of the concerns that the Administration has, so that we can get something done this year, the U.S. Conference of Mayors would be very much appreciative of that.

See also Testimony of the Honorable Thomas Suozzi, Mayor of Glen Cove, New York, on behalf of the National League of Cities, the National Association of Counties, the National Association of Towns and Townships, and five other national municipal organizations, Before the Senate Committee on Environment and Public Works 10-11 (May 25, 1999):

I'm a member of the U.S. Conference of Mayors and endorse everything that Mayor Marshall said . . . . We hope that the parties will continue to work together to get this municipal Superfund issue resolved this year. No matter what other issues of contention may stand in our way, we must pass something this year to try and get us some relief.

7. Two narrower bills introduced in the House and Senate (H.R. 1750 and S. 1105) were supported by the Administration but received no committee consideration.

8. The House Transportation and Infrastructure Committee reported out H.R. 1300 on Aug. 5, 1999; the House Commerce Committee reported out H.R. 2580 on Oct. 13, 1999.

9. S. 1090 was noticed several times for full committee markup in June and July 1999, but markup was postponed indefinitely by Senate Environment and Public Works Committee Chairman John Chafee on July 26, 1999. On Aug. 4, 1999, S. 1537 was introduced, which for the most part combined S. 1090 with a new provision on natural resource damages.

10. Although defined differently over the years, an orphan share typically would cover the response costs attributable to unidentified and nonviable parties.

11. See new § 131(d) that would be added by H.R. 1300, 106th Cong. § 310 (1999); new § 129(d) that would be added by H.R. 2580, 106th Cong. § 307 (1999).

12. EPA's allocation pilot program confirms the difficulty of conducting and concluding the process in a timely manner. See Testimony of Timothy Fields, supra note 2 (Sept. 22, 1999).

13. This is true whether a judge or a neutral third-party allocator answers questions of waste identification, toxicity, and volumetric contributions. These issues do not get easier to resolve fairly and to every-one's satisfaction where lawyers representing their clients' interests are allowed to play an active role in the proceedings.

14. The U.S. General Accounting Office (GAO) has issued a number of reports analyzing Superfund response costs and raising concerns about the efficiency of government-led cleanup actions. See U.S. GAO, PUB. NO. GAO/RCED-00-22 (2000); PUB. NO. GAO/RCED-99-139 (1999); PUB. NO. GAO/RCED-98-221 (1998); PUB. NO. GAO/RCED-97-211 (1997).

15. In fact, there is no guarantee that the allocation process would necessarily lead to any global settlements that would be adequate to secure full remediation and would be acceptable to all parties.

16. Depending on the number of settlements not achieved, the shortfall could be considerable. For example, using the current baseline ratio of 70% PRP-lead to 30% Superfund-lead, a change to 50:50 could cost approximately $ 288 million per year. A change to 30:70 could cost approximately $ 576 million peryear, and a change to 10:90 could cost approximately $ 882 million per year. These rough estimates assume that the average cost of a Superfund-lead cleanup from start to finish is $ 20 million (the current figure used by EPA) and the average EPA cost of overseeing a PRP-cleanup is $ 2 million (leaving an average cost differential between a PRP-lead and a Superfund-lead cleanup at $ 18 million). The current number of nonfederal facility cleanups is 82 per year. Since it would take several years before an allocation process was in place and potentially producing settlements (either to conduct response actions or fully cash out), one could expect that EPA would have to fund on its own a large portion of the 57 sites per year (70% PRP-lead) now being carried out by private parties. Even if the additional number is only 16 sites each year (a change to from 70:30 to 50:50), the cost involved could be significant (16 x $ 18 million = $ 288 million).

17. For example, the bills change the current formula for state cost share (under CERCLA § 104(c)(3), 42 U.S.C. § 9604(c)(3). ELR STAT. CERCLA § 104(c)(3), states assume 100% of the cost of operation and maintenance for remedial actions) by capping it at 10%. See H.R. 1300, 106th Cong. § 504 (1999); S. 1537, 106th Cong. § 204 (1999). This change could be substantial, since many national priority list (NPL) sites include long-term groundwater pump-and-treat remedies. In addition, apart from the programmatic costs of conducting allocations, EPA may have to pay for some of the new liability exemptions. One of these, a more generous exemption for owners contained in H.R. 1300, does not appear to be covered by the $ 300 million annual appropriation for the Superfund share account. See H.R. 1300, § 302(a). This exemption alone could represent an extensive drain on federal cleanup funds, where the United States would be left to pay the cost of cleanups at sites with no other viable generators or transporters (e.g., large chain-of-title mining sites).

18. 42 U.S.C. § 9606, ELR STAT. CERCLA § 106.

19. See § 131(t), added by H.R. 1300, § 310; § 129(t), added by H.R. 2580, § 307; § 122(n)(6)(B), added by S. 1537, § 303.

20. See new § 131(o), added by H.R. 1300, § 310; § 129(o), added by H.R. 2580, § 307; § 122(p)(2)(ii), added by S. 1537, § 303.

21. See CERCLA § 106(a), 42 U.S.C. § 9606(a), ELR STAT. CERCLA § 106(a). Courts have consistently interpreted this provision broadly to effectuate the remedial purposes of the statute; see United States v. Conservation Chem. Co., 619 F. Supp. 162, 16 ELR 20193 (W.D. Mo. 1985).

22. In fact, EPA has acknowledged publicly that a significant percentage of UAO recipients do not substantially comply with UAOs for remedial actions.

23. The early years of the Superfund program bear this out. Before the United States was able to consistently obtain about $ 1 billion a year in PRP cleanup commitments through its current settlement strategy, the Superfund program relied heavily on UAOs to get the work done. That reliance was a significant contributing factor to the slow pace of cleanup during the 1980s.

24. CERCLA § 107(c)(3), 42 U.S.C. § 9607(c)(3), ELR STAT. CERCLA § 107(c)(3), allows the United States to seek punitive damages of three times its incurred costs (in addition to the actual response costs that were spent) where noncompliance with a § 106 order causes EPA to spend Superfund money for cleanup.

25. See Solid State Circuits v. EPA, 812 F.2d 383, 17 ELR 20453 (8th Cir. 1987), for a discussion of the "sufficient cause" defense.

26. CERCLA § 113(h), 42 U.S.C. § 9613(h), ELR STAT. CERCLA § 113(h), requires a PRP to wait to judicially challenge a remedy decision until the response action has been completed, or EPA has filed an enforcement or cost recovery action.

27. In this way, noncomplying UAO recipients would be treated better than settlors, who typically waive their rights to challenge the remedy when they sign a consent decree.

28. That reimbursement could come in the form of contribution from other PRPs (either voluntary or based on a private-party contribution action filed under § 113(f)) or payment by EPA.

29. In fact, the bills would require documentation to support reimbursement. See § 131(o)(6), added by H.R. 1330, § 310; § 129(o)(6), added by H.R. 2580, § 307.

30. This would be especially true for those PRPs that have been on the delivering end of such tactics in cost recovery litigation brought by the U.S. Department of Justice. Their perception also could be influenced by EPA's parsimonious track record on § 106(b) reimbursement petitions.

31. See Resource Conservation and Recovery Act (RCRA) § 3006, 42 U.S.C. § 6926, ELR STAT. RCRA § 3006; Clean Water Act (CWA) § 402(b), ELR STAT. FWPCA § 1342, Clean Air Act (CAA) §§ 110, 502-505, 42 U.S.C. §§ 7410, 7661a-d, ELR STAT. CAA §§ 110, 502-505.

32. For example, CAA § 110(c), 42 U.S.C. § 7410(c), ELR STAT. CAA § 110(c), authorizes EPA to prepare a federal implementation plan where the Agency determines that the state implementation plan is insufficient; also, under the Title V program, if states fail to satisfy EPA's concerns with a proposed permit, EPA may issue the permit instead (see CAA § 505(c), 42 U.S.C. § 7661d, ELR STAT. CAA § 505(c)). In addition, authorized state programs can be withdrawn, if necessary; see, e.g., RCRA § 3006(c) and CWA § 402(c). Finally, EPA can file its own enforcement actions even in states that have been authorized to administer the federal program (e.g., United States v. MacDonald & Watson Waste Oil Co., 933 F.2d 35, 21 ELR 21449 (1st Cir. 1991); Wyckoff Co. v. EPA, 796 F.2d 1197, 16 ELR 20866 (9th Cir. 1986)), even though two courts have restricted EPA's overfiling authority in narrow circumstances (Harmon Indus., Inc. v. Browner, 191 F.3d 894, 29 ELR 21412 (8th Cir. 1999); United States v. ITT Rayonier, Inc., 627 F.2d 996, 10 ELR 20945 (9th Cir. 1980)).

33. The Commerce Committee bill also covers releases of hazardous substances that are "the subject of a response action" under state law, as opposed to response actions that are "in compliance with" state law. The distinction is important due to the varied nature and quality of state cleanup programs. In particular, a recent GAO report found that many states do not actively monitor progress at sites covered by their voluntary cleanup programs. See U.S. GAO, PUB. NO. GAO/RCED-97-66, at 38 (1997).

34. In H.R. 1300, the exclusion to the prohibition would only allow the United States to seek cost recovery.

35. The exclusions in H.R. 1300 also would include sites for which an Agency for Toxic Substances and Disease Registry (ATSDR) health advisory has been issued, and those in H.R. 2580 would include federal facilities.

36. The existing standard in CERCLA § 106 authorizes EPA to act to abate an imminent and substantial endangerment posed by a release or threatened release of a hazardous substance; under this standard, EPA can take action to abate risks before they actually cause harm. If nothing else, the proposed change in EPA's response authority threshold would provide ample opportunities for dispute—administratively between federal and state officials, and in litigation with private parties—over the correct interpretation of the two standards in relation to each other.

37. Both proposed and already listed sites are not covered by the prohibition in H.R. 1300 and S. 1537; in contrast, H.R. 2580 would extend the prohibition to proposed NPL sites that had not yet made it onto the final list.

38. H.R. 2580 and S. 1537 place the greatest constraint on the Agency by requiring EPA to obtain the governor's concurrence prior to listing. The concurrence would be required even if the site scored far above the cutoff level for inclusion on the NPL.

39. U.S. GAO, PUB. NO. GAO/RCED-99-39, at 15 (1998).

40. Id. at 3.

41. "The core liability provisions of CERCLA, and analogous liability laws which have been enacted by the majority of states, are an essential part of a successful cleanup program." Testimony of Gordon Johnson, Office of the Attorney General, State of New York, Before the House Subcommittee on Finance and Hazardous Materials (Sept. 22, 1999); "We support retaining the current liability scheme in CERCLA. Joint, several and strict liability have proven to be critical to successfully addressing contaminated sites . . . ." Testimony of Jay J. Manning, Senior Assistant Attorney General, State of Washington, Before the House Subcommittee on Water Resources and Environment (Mar. 5, 1997); "As we have previously, NAAG strongly supports the current scheme of strict, joint and several, and 'retroactive' liability . . . ." Testimony of Christine O. Gregoire, Attorney General, State of Washington, Before the Senate Environment and Public Works Committee (Apr. 24, 1996); "State Attorneys General have advocated the retention of the core CERCLA liability scheme of strict, joint and several, and 'retroactive' liability . . . ." Testimony of Alan C. Williams, Assistant Attorney General, State of Minnesota, Before the House Subcommittee on Water Resources and Environment (Nov. 2, 1995); "Oregon supports the retention of the basic Superfund liability scheme . . . ." Testimony of Langdon Marsh, Director of the Oregon Department of Environmental Quality, Before the House Subcommittee on Commerce, Trade and Hazardous Materials (Oct. 26, 1995); "The key feature of the Administration bill is that it preserves the CERCLA scheme of strict, joint and several, and retroactive liability on the persons responsible for hazardous waste pollution. We strongly support this aspect of the bill . . . ." Testimony of Thomas Udall, Attorney General, State of New Mexico (and Vice President of the National Association of Attorneys General), Before the Senate Public Works and Environment Committee (1994).

42. Other avenues not based on CERCLA § 107 authority, such as equitable restitution, might be available; see United States v. Price, 688 F.2d 204, 12 ELR 21020 (3d Cir. 1982). However, their effectiveness also might be limited under H.R. 2580, which would extend the prohibition to cover RCRA § 7003.

43. Even though a state could request EPA assistance under the proposed exemptions to the prohibition, that process could be cumbersome if it were invoked repeatedly merely to secure cooperation from PRPs. Furthermore, it might prove to be politically unpalatable for states to do so with any frequency, to the extent they have claimed they do not need EPA's involvement in administering their cleanup programs.

44. H.R. 2580 extends the prohibition to citizen suits under RCRA § 7002, 42 U.S.C. § 6972, ELR STAT. RCRA § 7002, as well. In this respect, the bill adopts the approach taken in recent decisions that have significantly narrowed the public's ability to use RCRA § 7002 to recover the costs of remediation associated with groundwater contamination caused by petroleum products. See Meghrig v. KFC W., Inc., 116 S. Ct. 1251, 26 ELR 20820 (1996); Avondale Fed. Sav. Bank v. Amoco Oil Co., 170 F.3d 692, 29 ELR 21001 (7th Cir. 1999); Express Car Wash Corp. v. Irinaga Bros., Inc., 967 F. Supp. 1188, 27 ELR 21394 (D. Or. 1997). While CERCLA covers most contamination problems through its broad definition of hazardous substances, some wastes are reachable only through RCRA §§ 7002 & 7003 (i.e., petroleum products and fractions of crude oil, such as benzene, which are excluded from Superfund by virtue of the "petroleum exclusion" in CERCLA § 101(14)). The breadth of the prohibition in H.R. 2580, then, would keep cost recovery truly out of reach for private parties seeking to remediate sites on their own initiative. Even without specific language to this effect, the other two bills would effectively produce the same result, when considered with the emerging Meghrig case law.

45. For example, a property owner causing contamination that has led an adjacent owner to incur cleanup costs could become shielded from a private-party cost recovery action merely by signing up to participate (but not necessarily doing any remediation) in a state voluntary cleanup program.

46. In fact, this fact pattern is not all that unusual. Meghrig, 116 S. Ct. at 1251, 26 ELR at 20820; Avondale, 170 F.3d at 692, 29 ELR at 21001; and Express Car Wash, 967 F. Supp. at 1188, 27 ELR at 21394.

47. H.R. 1300 contains no qualifying criteria for evaluating the adequacy of a state cleanup program.

48. See, e.g., RCRA § 3006(f), 42 U.S.C. § 6926(f), ELR STAT. RCRA § 3006(f).

49. See U.S. GAO, PUB. NO. GAO/RCED-97-66, at 43 (1997).

50. 42 U.S.C. § 9621(e), ELR STAT. CERCLA § 121(e). EPA must comply with both procedural and substantive requirements for the portions of remedies that take place off-site.

51. CERCLA does ensure the functional equivalent of a permit through a host of public participation requirements. For example, EPA must prepare an administrative record for each site and must provide the public with opportunities to assist in the development of that record. See CERCLA § 113(k), 42 U.S.C. § 9613(k), ELR STAT. CERCLA § 113(k). Furthermore, CERCLA § 117, 42 U.S.C. § 9617, ELR STAT. CERCLA § 117, ensures adequate opportunities to review and comment on the proposed cleanup plan, as well as grants to affected communities for technical assistance.

52. Nor are there any consequences for states that do not maintain adequate public participation procedures, as discussed below.

53. See H.R. 1300, § 104 (adding a new § 129(a)).

54. H.R. 2580 does require the state to submit a certification that the four general criteria have been met, but has no provision for review or withdrawal; S. 1537 is entirely self-executing.

55. Only S. 1537 attempts to address the issue of state accountability and does so minimally. Section 128(c)(4)(B) would allow EPA to ternporarily suspend the applicability of the entire prohibition provision if the Agency finds that the state "is unwilling or unable to take appropriate action to address a public health or environmental emergency at 3 separate facilities within any 1-year period." The policy basis for in effect allowing a state to put its citizens at high risk in at least three situations in a given year before it faced any consequences would be, to put it mildly, unique among federal environmental laws. Furthermore, the political practicability of the federal government documenting a state's actions endangering its residents and communities is remote. Finally, the Senate bill does not address the status of interim federal enforcement actions taken while the state program is suspended (e.g., the effect on a § 106 order issued during the suspension period, once the state has corrected the deficiencies in its cleanup program).

56. See S. 1537, § 201 (adding § 128(c)(4)(A)).

57. This could be a politically devastating determination, and for that reason, would likely be considered only in the most extreme circumstances.

58. Rather than structuring an approach derived from federal and state government motives being called into question (i.e., that EPA wants to embarrass states by second-guessing their decisions, and that states would disregard the health and safety of their own citizens). Congress should promote the positive aspects of existing cooperative models. One option would be to fashion an authorization provision similar to that found in all other major federal environmental laws. See Charles Openchowski, A Shorter, Simpler Approach to Superfund Reauthorization, 27 ELR 10357, 10365 (July 1997). Another option would be to encourage a greater number of states to enter into memoranda of agreements (MOAs) with EPA, as several states have already done, to set forth relative federal and state roles and responsibilities at sites eligible for state voluntary cleanup programs. A third option would be to create an appropriate incentive to encourage a better division of labor at non-NPL sites that would be tied to the existing state cost-share requirement in CERCLA § 104(c)(3), 42 U.S.C. § 9604, ELR STAT. CERCLA § 104(c)(3). For example, a state could receive a credit to be applied to the cost-share amount at a future Superfund site where it had conducted a cleanup of an NPL-caliber site in a manner consistent with EPA policies and regulations.

59. Beyond rhetorical, vaguely articulated anxiety over EPA possibly second-guessing states, there has been no verifiable record of federal abuse or undue interference presented to lawmakers during the past seven years of Superfund reauthorization debates.

60. The bills are stylistically quite different in approach. While H.R. 2580 devotes only a few pages to the subject (2 pages on general remedy selection issues, and 3 pages dealing with cleanup at sites contaminated by dry cleaners that were added at the end of the bill during the committee markup process), H.R. 1300 goes on for over 20 pages. Rather than making amendments to the existing § 121 framework (as done in the House bills), S. 1537 deletes and entirely rewrites the heart of that section.

61. The NCP also serves a similar purpose for the oil spill program under CWA § 311, 33 U.S.C. § 1321, ELR STAT. FWPCA § 311, as amended by the Oil Pollution Act of 1990.

62. For example, consideration of future land use (see H.R. 1300, § 401(c); H.R. 2580, § 208).

63. These would include "the reasonably anticipated use" of groundwater and an appropriate time frame for measuring it, "reasonable points of compliance," "discrete area," "principal hazardous constituent," and "substantial" risk (see, e.g., S. 1537, § 401(a); H.R. 2580, § 108; H.R. 1300, § 401(c)). In fact, the Senate bill's complete rewrite might suggest more than an attempt to simplify the drafting process by avoiding numerous inserts; some might argue that the new construct requires a comprehensive reevaluation of the entire remedy selection process.

64. Not only was the last major NCP revision based on Superfund amendments challenged, but a large percentage of significant EPA rules are judicially reviewed.

65. Agency policies and guidance documents generally are not judicially reviewable. See Syncor Int'l Corp. v. Shalala, 127 F.3d 90 (D.C. Cir. 1997); Mada-Luna v. Fitzpatrick, 813 F.2d 1006 (9th Cir. 1987); Pacific Gas & Elec. Co. v. Federal Power Comm'n. 506 F.2d 33 (D.C. Cir. 1974).

66. Since there is no transition rule, the new remedy selection rules would not be restricted to only post-enactment response actions. PRPs would be free to petition the Agency to reopen already signed record of decisions (RODs), either in the context of a § 121(c) five-year review or at any other time. Failure to do so by the Agency could have a material impact on the government's ability to obtain complete cost recovery for the original remedy chosen when a PRP demonstrates that the application of the newer remedy standards would have led to a much less expensive—yet by definition equally protective—cleanup. Therefore, instead of working on new response actions, the Agency might be forced to spend its resources reconsidering already signed RODs.

67. See CERCLA § 121(b)(1), 42 U.S.C. § 9612(b)(1), ELR STAT. CERCLA § 121(b)(1).

68. See H.R. 1300, § 401(a); H.R. 2580, § 108; S. 1537, § 401(a).

69. See H.R. 1300, § 401(c)(3); H.R. 2580, § 108; S. 1537, § 401(b). H.R. 1300, § 401(c)(2)(B) also would change how the Endangered Species Act, 16 U.S.C. §§ 1531-1544, ELR STAT. ESA §§ 2-18, is to be considered as an applicable or relevant and appropriate requirement (ARAR) in cleanup decisions.

70. H.R. 2580, § 308 would set a maximum level of remediation for all media, including groundwater, based on a soil screening level for inhalation. Apart from taking the unusual step of setting a specific cleanup standard in the statute for a particular kind of contamination, the bill's approach would clearly be less stringent than current practice since it would establish a level of protection for drinking water based on an inhalation risk from soil.

71. For example, H.R. 2580 would allow groundwater remedies to be evaluated using "reasonable points of compliance." See H.R. 2580, § 108(6). Under this approach, achievement of drinking water standards could be measured at each homeowner's faucet. By using special filters at the tap, no cleanup of the contaminated aquifers might be needed. While clearly a much cheaper solution, this approach would not lead to a better environmental result, especially if the groundwater had been polluted by persistent toxic chemicals such as dense non-aqueous phase liquids (DNAPLs). Other changes affecting remedy selection appear in other titles of the bills. For example, both H.R. 1300 (§ 308) and H.R. 2580 (§ 305) contain similar provisions in the liability provisions that would make a fundamental shift in the issuance of final covenants not to sue. Currently, under CERCLA § 121(f)(1), treatment remedies that "destroy, eliminate, or permanently immobilize" hazardous substances are eligible for immediately effective final covenants (i.e., those without reopeners); the bills, on the other hand, would allow for an immediately effective final covenant even for nontreatment remedies upon payment of an unspecified premium for unknown conditions (the payment of which can be waived).

72. For example, H.R. 1300, § 403 would add criteria like "which [do not] exaggerate the nature and magnitude of risks" and "based on an analysis of the weight of scientific evidence." S.1537, § 402 would add a specific list of factors to be considered (e.g., the "exposed population," "reasonably anticipated future use of the land and water resources," and "use of institutional controls") at the baseline risk assessment phase. By factoring in future use and institutional controls at the baseline—instead of the consideration of alternatives—stage, the bill clearly would be steering the Agency to less conservative evaluations of risks posed by sites (i.e., incorporating institutional controls in the baseline risk assessment process can suggest that the likelihood of exposure is reduced, even if nothing has been done to address the underlying risks posed by the contamination). See also H.R. 2580, § 108 for similar language.

73. See H.R. 1300, § 401(c)(2)(A).

74. See id. § 401(c)(2)(F).

75. See S. 1537, § 402.

76. EPA frequently receives comments from PRPs criticizing its risk assessment methodology, and responds to those comments when finalizing its ROD. The bills, however, would require the Agency to itself generate information that mimics such criticism, or to place self-serving PRP-generated documents in the record on an equal footing with EPA's own analysis.

77. Thus, a PRP would not need to convince a court that its risk assessment should be considered on par with EPA's; rather, it would be able to refer directly to information EPA itself was required to place in its compilation of documents supporting a decision (even if the Agency did not believe such information or analysis was an accurate way to evaluate risks at the site).

78. See, e.g., H.R. 1300, § 401(c); see also S. 1537, § 402, as discussed in supra note 72.

79. See H.R. 1300, § 401(e).

80. New § 121(g)(2) generally would not allow institutional controls to act as a "substitute" for other response measures, but does contain an exception for "extraordinary circumstances." No factors or definitions are provided for these terms, however. Thus, relying solely on institutional controls might be the preferred remedy due to cost considerations, especially where a risk assessment premised on restrictions to site access has already downgraded the threats posed by the site.

81. See id. § 402 (adding new § 104(k)). Significantly, only easements—not other institutional controls established under the bill—would be covered by the enforcement provisions.

82. See new § 104(k)(10).

83. Rather than including a simple, separate enforcement provision providing specific authority under federal law to any person to enforce any institutional control mechanism, the bill contains a series of options. The first one—CERCLA § 120(g)—deals with restrictions on transfers of EPA authority under the federal facilities provision and does not mention enforcement at all. A second one—CERCLA § 121(e)(2)—provides states with the authority to enforce federal and state cleanup standards identified in § 121(d) (i.e., any "standard, requirement, criteria or limitation" that is ARAR in determining the remedial action at a Superfund site; see 42 U.S.C. § 9621(d), (e), ELR STAT. CERCLA § 121(d), (e). No mention of § 106 orders, or failure to comply with them, or relief available in the event of such failure, is made in § 121(e)(2). Since an easement is a type of remedy, not an ARAR, it is unclear how a state could use the limited grant of authority in § 121(e)(2) for enforcing the new easements.

84. This definition appears to be derived from Solid State Circuits v. EPA, 812 F.2d 383, 17 ELR 20453 (8th Cir. 1987). It also mirrors the standards for seeking reimbursement of the costs of complying with a § 106 order under § 106(b)(2).

85. Also, as provided in new § 104(k)(11), merely "holding a hazardous substance easement shall not in itself subject either to holder thereof or the owner of the affected property to liability under section 107."

86. For the same reason, they would evade the fourth enforcement authority listed in the bill, the citizen suit provision in § 310. Even if a citizen suit action could defeat the bar on preenforcement review in CERCLA § 113(h) (i.e., the response action had been taken or secured), it is hard to imagine that a court would enforce the terms of an easement when the bill equates it to a § 106 order and, due to the sufficient cause defense, would not allow even the United States to enforce those terms.

87. This would be especially true if a violation of an easement (e.g., construction of residential units) were to take place long after any active remediation of the site had been "completed," and if by itself it did not cause a release of hazardous substances or lead to immediate, direct exposure (e.g., no drinking water wells were installed).

88. The Shattuck site in Denver, Colorado, provides one example of the possible consequences of increased reliance on containment remedies and institutional controls. In 1992, EPA issued a ROD calling for placement of soil contaminated by chemical processing activities involving tungsten ores, carnolite ores (for uranium and vanadium), radium slimes, molybdenum ores and depleted uranium in a "monolith" located on-site that was then capped. The cost of the remedy, which was completed in 1998, was approximately $ 26 million. During a five-year review undertaken last year by the Agency pursuant to CERCLA § 121(c), EPA identified some concerns with regard to the long-term integrity of the monolith, its cover, and the reliability of the institutional controls used to address off-site exposure to groundwater. Determining that the long-term protectiveness of the remedy could not be assured, the Agency published a proposed plan in December 1999 to amend the original ROD. This two-phase approach might both extend the timeline for remediation at the site by several years and add another $ 21 million to the cost of the remedy.

89. For example, one incentive might be to provide direct tax relief for profits made through the sale of effective treatment technologies. Another incentive could be an offset from liability for cleanup costs at one or more Superfund sites to a PRP that discovers, develops, and implements a successful treatment technique; the amount of that offset could be based on the PRP's expense in bringing a technique from the drawing board to practical application.

90. This element of the Partnership could accomplished by expanding the research and development provisions contained in CERCLA § 311(b).

91. While MTBE in gasoline nominally might be covered by CERCLA's "petroleum exclusion" in CERCLA § 101(14), EPA could, among other options, designate it as a hazardous substance pursuant to CERCLA § 102. Other remedial authorities also are available, such as RCRA § 7003.

92. Since most gasoline at service stations in the country is stored in underground storage tanks (USTs), and since most USTs eventually leak, MTBE has been appearing with increasing frequency in aquifers. See EPA Seeks to End Use of Additive in Gasoline, WASH, POST, Feb. 21, 2000, at A1.

93. One alternative to MTBE that might provide similar air pollution benefits is ethanol, although its health effects and potential to contaminate groundwater may not have been fully evaluated yet. Id.

94. Developing a cleaner engine is not a new idea. Various initiatives—such as the federally sponsored Partnership for a New Generation of Vehicles—have devoted extensive research and resources on alternative engines, such as those using battery-powered electric cells (even though it is not certain that reliance on electric engines would necessarily dramatically change overall greenhouse gas emissions, due to the need to produce large amounts of electricity to recharge millions of electric engines; to the extent the new power plants would burn coal and fossil fuels, for example, net emissions over time might not improve significantly).

95. See A.K. Oppenheim & A.L. Kuhl, Paving the Way to Controlled Combustion Engines, Futuristic Concepts in Engines and Components 19-29, SAE SP-1108, Paper 951961 (1995); A.K. Oppenheim et al., Model and Control of Heat Release in Engines, Engine Combustion and Flow Diagnostics 15-23, SAE SP-1157, Paper 960601(1996); P. Wolanski & A.K. Oppenheim, Controlled Combustion Engines, SAE Paper 1999-01-0324 (1999). Dr. Oppenheim is a member of the National Academy of Engineering and a professor emeritus at the University of California at Berkeley.

96. The economic benefits of such an engine could be enormous and wide-ranging, from direct consumer savings to reduction of national balance of payment deficits caused by huge imports of oil from abroad.

97. For example, the Agency has issued and successfully used a settlement policy addressing municipal owners and operators of municipal solid waste at co-disposal facilities. The policy, which was challenged and successfully defended in Chemical Mfrs, Ass'n v. EPA, 26 F. Supp. 2d 180, 29 ELR 20306 (D.D.C. 1998), builds on an earlier policy issued in 1989 that has been successfully used. See, e.g., United States v. Kramer, 757 F. Supp. 397, 21 ELR 20879 (D.N.J. 1991). Similarly, the Agency has issued policies addressing de micromis parties (see United States v. Keystone Sanitation Co., No. 1:CV-93-1482 (M.D. Pa. July 28, 1999), in which the court approved a settlement with 200 small contributors based on EPA policy) and residential owners of property adjacent to Superfund sites. The bills would make important changes to all of these policies. For instance, rather than using the $ 5.30 per ton amount in the municipal settlement policy, H.R. 2580 would create a qualified exemption which could require determinations about timing of disposal (pre- versus post-enactment), the nature of a generator's business (whether it is "transporting waste materials"), and the cost of the entire remedy (aggregate liability is capped at 10% of response costs) before liability could be resolved and a settlement entertained. As written, the exemption also would impose the burden of proof on the United States to show which proportion of a mixed waste stream consisted of qualifying municipal solid waste (MSW). Due to the difficulty in making some of these determinations, the Agency might be forced to absorb large portions of the response costs at these sites. Furthermore, it is not clear that these changes would promote early, final resolution of liability for the parties that are supposed to benefit from these new rules, since making the required determinations would take time. Thus, by shifting the burden of proof to the United States and expanding the number of qualifying criteria (compared to existing policies for MSW, de micromis, and contiguous owners), Congress in effect may be making it harder for deserving parties to obtain early settlements that offer contribution protection from larger, more aggressive PRPs.

98. Several of these provisions also raise questions about the appropriateness of their scope and expense, especially since it is not at all clear that the bills would provide sufficient authorization levels to cover the cost of the liability relief offered. H.R. 1300 authorizes $ 300 million annually for five years to pay for its liability relief provisions (and $ 200 million annually for the following three years). H.R. 2580 authorizes $ 250 million annually for five years, and S. 1537 authorizes $ 200 million annually for five years. The anticipated funding needs differ from bill to bill, presumably accounting for variability in the actual liability exemptions and limitations that would be offered.

99. The recently enacted recycling provisions give a hint of what could be in store if the liability provisions in the three bills were enacted. Liability relief for certain recycling provisions is addressed in similar fashion in all three bills. One version, based on the Superfund Recycling Equity Act of 1999 (S. 1528) did manage to break loose at the end of 1999, and was signed into law as part of the end-of-the-year omnibus bill. Even though the version contained in S. 1528 had been in circulation for over five years without major modification, its enactment highlights the susceptibility of legislative language to different interpretations. On Nov. 19, 1999, Senate Majority Leader Trent Lott (R-Miss.) introduced a lengthy statement in the Congressional Record concerning S. 1528, purportedly on behalf of himself and one of his co-sponsors, Minority Leader Sen. Tom Daschle (D-S.D.). 145 CONG. REC. S15048 (Nov. 19, 1999). The statement sets forth extensive interpretations of the recycling provision, perhaps to partially compensate for the lack of a congressional committee record (i.e., there were no committee reports or hearing transcripts) analyzing the meaning and intent of the many new concepts and terms contained in this liability provision. A few weeks later, however, Senator Daschle introduced his own statement, in which he clearly disassociates himself from Senator Lott's interpretations. 146 CONG. REC. S76 (Jan. 26, 2000). This exchange of views can only foreshadow the wide diversity of policy views and legal constructions that no doubt will be brought to the courts.

100. One curious provision that was first introduced in the 103d Congress and appears to fall into the latter category is an exemption that would offer relief for certain railroad spur tracks less than 10 miles long.

101. See H.R. 1300, § 305; H.R. 2580, § 303; S. 1537, § 301.

102. The two House bills would allow any small business with 75 full-time employees and $ 3 million in annual revenues to qualify; see H.R. 1300, § 305 & H.R. 2580, § 303. Under S. 1537, however, any small business with either 75 employees or $ 3 million in annual revenues would qualify. S. 1537 also applies to future disposal, thereby eliminating a prospective incentive for small businesses to handle their hazardous substances carefully.

103. Testimony of Ann Maust, President, Research Dimensions, Inc., member of NFIB, testifying Apr. 23, 1997, on behalf of NFIB Before the House Government Reform and Oversight Committee on National Economic Growth, Natural Resources, and Regulatory Affairs.

104. Id. See also Testimony of Kent Swanson, testifying on behalf of NFIB before the Senate Committee on Small Business, Feb. 28, 1996 ("Of the 6 million business establishments in the U.S., 60% employ 4 or fewer employees, 94% employ fewer than 50.").

105. While the bills would allow the United States to restore liability if it could show that "the hazardous substances attributable to the small business concern have contributed, or contribute, significantly to the costs of the response action," it is not clear how high the threshold of this showing (for either volume or toxicity) would be or how difficult it would be for the United States to carry this burden of proof at multiparty sites. See H.R. 1300, § 305; H.R. 2580, § 303; S. 1537, § 301.

106. See OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE, U.S. EPA, DIRECTIVE No. 9835.9; 54 Fed. Reg. 34235 (Aug. 18, 1989), modified at60 Fed. Reg. 34792 (July 3, 1995).

107. See H.R. 2580, § 105; S. 1537, § 103.

108. See H.R. 1300, § 302.

109. See Testimony of Carol Browner, Administrator, U.S. Environmental Protection Agency, Before the House Subcommittee on Water Resources and Environment (May 12, 1999); Testimony of Timothy Fields, Assistant Administrator for Solid Waste and Emergency Response. U.S. Environmental Protection Agency, Before the House Subcommittee on Finance and Hazardous Materials (Aug. 4, 1999).

110. The windfall lien provisions included in each bill do not offset the missing quid pro quo. To begin with, the various lien provisions in each bill contain flaws that would weaken their potential usefulness. These include an imprecise baseline valuation process and a lax triggering mechanism that would allow an owner to delay the satisfaction of a windfall lien by entering into a long-term lease instead of selling the property. More importantly, however, the very existence of a lien defeats the underlying purpose of the Agency's current approach—that is, to create an incentive for more efficient private-party prospective purchasers to clean up contaminated sites instead of using Agency resources to do so. By its very nature, a windfall lien presumes the expenditure of cleanup dollars by EPA that leads to property value appreciation for a prospective purchaser. See H.R. 1300, § 302(a); H.R. 2580, § 105(a); S. 1537, § 103(b).

111. A number of courts have imposed affirmative duties on parties seeking to avail themselves on this statutory defense. See, e.g., Idylwoods Assocs. v. Mader Capital, Inc., 956 F. Supp. 410, 27 ELR 21003 (W.D.N.Y. 1997).

112. The issues raised by this new standard would apply equally in other liability relief provisions where the term "appropriate care" is also used (for example, the new owner/operator provision in H.R. 1300, as well as the contiguous owner provisions in all three bills).

113. CERCLA § 107(a)(4)(c), 42 U.S.C. § 9607(a)(4)(c), ELR STAT. CERCLA § 107(a)(4)(c), establishes liability for "injury to, destruction of, or loss of natural resources," including the costs incurred to assess the damage done. Recoveries are to be spent to "restore, replace, or acquire the equivalent of such natural resources." See CERCLA § 107(f)(1).

114. For example, the bill would eliminate recovery for non-use values and would restrict the extent of interim lost use of injured resources, as well. See S. 1537, § 403.

115. A cost-benefit calculation would add an additional layer of administrative analysis that might not be germane to the long-term ecosystem needs of damaged resources. It also would provide additional litigation opportunities.

116. At the time of publication, no full committee markup of S. 1537 has been scheduled by the Senate Committee on Environment and Public Works.

117. S. 1090 is called the Superfund Program Completion Act of 1999 (emphasis added), and would sharply reduce authorization levels for the cleanup program; the other bills also contain significant reductions in funding levels.

30 ELR 10648 | Environmental Law Reporter | copyright © 2000 | All rights reserved