Superfund and Brownfields in the 107th Congress

Publication Date: January 2003

Publisher: Library of Congress. Congressional Research Service

Author(s):

Research Area: Environment

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Abstract:

On January 11, 2002, the President signed H.R. 2869 (P.L. 107-118), which formally established EPA’s brownfields program, and provided relief from Superfund liability for small businesses. The Act creates a $200 million per year brownfield cleanup program (including $50 million for cleanup of petroleum-contaminated sites); provides $50 million for state programs; and relieves liability for contiguous property owners, prospective purchasers, and innocent landowners. It also provides liability relief for small businesses and others who disposed of small amounts of hazardous waste, and allows businesses to make a financial settlement for a lesser amount in cases of financial hardship. The Senate passed S. 606 on November 20, 2002 to establish an Ombudsman. The House passed H.R. 2941 under suspension on June 4, 2002, a bill to make HUD brownfield grants more accessible, especially to smaller communities. The Senate Environment and Public Works Committee reported S. 1079 on April 25, providing funds for the Economic Development Administration’s brownfield program.

The Superfund Act’s formal name is the Comprehensive Environmental Response, Compensation, and Liability Act, or CERCLA (P.L. 96-510, as amended). It is the principal federal program for cleaning up hazardous waste sites. As of December 2002, 809 nonfederal sites (61%) placed on the Superfund’s National Priorities List (NPL) had been removed to the Construction Completed List. Program critics say it is slow, ineffective, and expensive. Program supporters acknowledge that the statute needs to be updated, but argue that Superfund cleanups have prevented widespread health and environmental exposures and have created strong incentives for more careful hazardous waste management.

Future funding of the program is a basic issue, as the taxing authority that supported the Superfund trust fund ended in 1995. Congress has appropriated larger amounts from the Treasury since FY1999 as the trust fund balance has declined. The FY2002 appropriation for the Superfund program is $1.27 billion, (P.L. 106-377).

CERCLA’s broad liability scheme has been one of the most difficult issues. The average cost of cleaning up a site is about $20 million, a large enough amount to often make it worthwhile for parties to pursue legal means to spread the costs rather than to settle. So at large sites, where it is not unusual for there to be over a hundred potentially responsible parties, there can be a commensurate amount of expensive negotiation and litigation. Such situations can be especially burdensome for small businesses and other minor parties.

The law’s cleanup standards and remedy selection procedures are also controversial. Requirements for treatment, permanence, and the application of both federal and state regulations have led to what some critics characterize as overly strict risk assessment, and increased costs and delay at many sites. Environmental groups, on the other hand, strongly support cleanup remedies that minimize remaining on-site pollution rather than remedies that, while designed to limit human and environmental exposure, leave wastes on site. Business interests also want to cap the amount of natural resource damages that can be assessed against them.

A number of states are seeking a full delegation to them of the authorities in CERCLA, including remedy selection, control over CERCLA’s monies, and the determination of what sites go on and off the NPL.