Volume 144, No. 125 covering the 2nd Session of the 105th Congress (1997 - 1998) was published by the Congressional Record.
The Congressional Record is a unique source of public documentation. It started in 1873, documenting nearly all the major and minor policies being discussed and debated.
“LET'S ENCOURAGE BROWNFIELDS DEVELOPMENT AND GET THE LITTLE GUY OUT OF SUPERFUND LITIGATION AT CO-DISPOSAL SITES” mentioning the Environmental Protection Agency was published in the Senate section on pages S10607-S10609 on Sept. 18, 1998.
The publication is reproduced in full below:
LET'S ENCOURAGE BROWNFIELDS DEVELOPMENT AND GET THE LITTLE GUY OUT OF
SUPERFUND LITIGATION AT CO-DISPOSAL SITES
Mr. LAUTENBERG. Mr. Mr. President, yesterday the Majority Leader made a long statement on behalf of Senate action on S. 2180, the
``Superfund Recycling Equity Act,'' which he introduced earlier this year. This legislation would clarify that persons who merely recycle certain specified materials, but did not dispose of those materials, are not subject to Superfund liability.
Today, Mr. President, I join as a co-sponsor of this legislation. And, I note for the record, that I was the author of the recycling provision in 1993. I included it in comprehensive Superfund reform legislation, S.1834, which I introduced when I was Chairman of the Senate Superfund Subcommittee. As Senator Lott noted yesterday, this provision has reappeared in every major, comprehensive Superfund bill since then, whether authored by Democrat or Republican. And it has been introduced in every Congress, by Democrats and Republicans, as stand-
alone legislation. There is broad-based, bipartisan support for this legislation which would remove impediments to recycling efforts. It now appears that some type of liability relief for recyclers will be considered by the Environment and Public Works Committee next week, although it is not clear exactly which of several proposals will be considered.
For this reason, Mr. President, I would like to bring to the Senate's attention two other very similar provisions which I believe should be considered in conjunction with S. 1280. They are designed to expedite the revitalization of communities all across this country, and to provide relief to untold numbers of small business owners, small non-
profits, and individuals who sent only ordinary household trash to landfills that are now Superfund sites.
Mr. President, once it became clear that the Congress would not act on comprehensive Superfund legislation this year, and the Majority Leader expressed his interest in enacting a liability exemption for certain recyclers, I suggested that we also take the very modest step of enacting a similar exemption for brownfields development and for those who innocently disposed of municipal solid waste at landfills that later became Superfund sites. I wrote to the Chairman of the Environment and Public Works Committee, asking that the Committee consider exemptions for brownfields and municipal solid waste (MSW) disposal, should it take up any liability exemptions--because brownfields and MSW exemptions also enjoy broad, bi-partisan support and have been regarded as non-controversial. The Chairman responded that he opposed so-called piecemeal reform of Superfund, and that the Committee would not be considering such legislation this year. In deference to this judgement, I deferred introducing separate legislation. Now that the Committee apparently will be considering liability exemptions for recyclers, I hope we will also have an opportunity to consider exemptions for brownfields and MSW.
Mr. President, as is the case for recyclers, provisions to clarify the law on liability for brownfields development and MSW have been included, with bipartisan support, in every comprehensive Superfund bill since 1993. In virtually every regard, they meet the same criteria that have been offered to justify enacting exemptions for recyclers. They are simple clarifications of existing law to correct unintended consequences of the Superfund liability scheme. They have gained the support of all stakeholders, the Environmental Protection Agency, the Department of Justice, and the national environmental community. The brownfields and MSW ``fixes'' are minor, but are critical for successful brownfields development, or to those subjected to unfair and unintended litigation. They do not involve cleanup standards or natural resource damages. They do not deal with orphan shares or municipal liability. And they offer significant economic and environmental benefits.
Why, then, should the Senate reject consideration of these ``fixes?'' Only one reason is offered: that they should be held hostage to comprehensive Superfund reform! Mr. President, it is argued they are so popular, and enjoy such broad ranging support, and provide such significant benefits to the nation, that we should hold them hostage to see if they provide a stimulus for action on comprehensive legislation in the next Congress. It is argued that they should be held as
``sweeteners'' to try to sweeten the sour pot of proposed changes to the Superfund program that have been rejected by three successive Congresses.
Mr. President, with all due respect to those making this argument, I think it is wrong to prevent enactment of legislation that enjoys broad support, and would reap acknowledged benefits, as a tactical matter to achieve unrelated goals. I think this disserves the public and adds to public cynicism. For a variety of reasons, efforts to radically change Superfund, the nation's toxic waste cleanup program, have failed for six years running. Toward the end of each of the past two congresses, many Senators, including this Senator, have argued that we should move ahead with achievable reforms that are non-controversial and permit our people, our communities, and our economy to benefit from their enactment. Today, as we head into the final weeks of this Congress, I make the same plea. Just as holding recyclers hostage to comprehensive Superfund reform has not worked, so holding brownfields development and persons who disposed of household trash hostage to other legislative goals is a failed strategy. It will not mitigate the controversy intrinsic to the broader issues raised by comprehensive legislation. Yet, it robs communities across the country of the jobs and tax ratables that flow from revitalized brownfields and imposes severe penalties on the individuals and small businesses caught up in a litigation nightmare through no fault of their own.
Mr. President, in the last Congress, the Majority party insisted on an all or nothing Superfund strategy. But, when that failed, lender liability legislation was passed in response to a strong lobbying effort by lenders who, understandably, wanted relief from liabilities that were unfair and made no sense. I supported lender liability relief because I thought it had public benefits and corrected an injustice.
In these last weeks of the 105th Congress, a similar game plan is unfolding. Thousands of recyclers around the country are asking for liability relief--relief they deserve, in legislation I support. They have skilled representatives making their case, and I do not fault them for that. In fact, I support their efforts. But, as a Senator from a state with literally thousands of brownfields sites, as well as altogether too many instances of homeowners and small businesses mired in litigation at landfill sites, it is my responsibility to lobby for those communities and individuals who don't have lobbyists representing them here in the Congress. We, as their elected representatives, are their lobbyists. We are their voice. There is no reason in the world why this Senate, and this Congress, should not move forward to make the minor, non-controversial, and eminently sensible changes to Superfund law that impede brownfields development and rob small businesses of their hard earned profits.
Mr. President, I hope my colleagues will consider the plight of persons who disposed of household waste, or office trash, such as cafeteria waste or paper waste, at the local town dump. I am talking about homeowners, pizza parlor owners, and Girl Scouts who, as unbelievable as it may sound, have been dragged into Superfund litigation. They have not been sued by EPA. They have been sued, primarily, by large corporations who disposed of toxic waste, some by dark of night, at a dump alongside solid waste from homes and small businesses and restaurants.
Through two Congresses now, the Senate Environment and Public Works Committee has heard testimony from Barbara Williams, the owner of Sunny Ray Restaurant, who was named as a fourth-party defendant in litigation concerning the Keystone Sanitation Company, Inc. Superfund Site, in Harrisburg, Pennsylvania. Indeed, the whole country heard her saga, when she was interviewed on ``60 Minutes.''
How did Barbara Williams get ensnared in Superfund litigation? EPA sued 11 companies that dumped hazardous waste from industrial processes at the Keystone Landfill for a period of years, but did not want to clean it up. These 11 companies sued 180 third-party defendants, who in turn sued 590 fourth-party defendants, including Barbara Williams. But Mrs. Williams sent only mashed potatoes and other restaurant waste to the Keystone Site. Those suing her told her she could get out of the lawsuit if she would pay them $75,000.
Mr. President, a $75,000 assessment is a lot of money for most small businesses, and Barbara Williams is no exception. Further, Barbara Williams is not a polluter. No one at the Department of Justice, the EPA or in the Congress believes she should be liable under Superfund for sending mashed potatoes to the local garbage dump. Nor does anyone believe she should have to pay staggering lawyers' fees to get herself out of this litigation nightmare. Congress could, and should, act now to free Mrs. Williams and get all those like her out of the litigation web. Mrs. Williams, her business, and her family should not be held hostage to some notion that if we wait to grant her justice another two years, or four years, we will enact highly controversial changes to the Superfund program. Comprehensive Superfund legislation will have to rise or fall on its own merits. Barbara Williams should not become a pawn in this legislative battle.
Likewise, Mr. President, this body should ask the same questions about removing obstacles to brownfields development. Brownfields are often in cities, but also are located in many, many suburban and even rural areas. They are abandoned, or idle, former industrial properties. Some of these are contaminated, some are not. But it is the fear that these properties are contaminated that some say deters investors from buying them and redeveloping them.
Mr. President, there are more than 500,000 brownfields staining this country's landscape. The nation's Mayors estimate they lose between
$200 and $500 million a year in tax revenues from these properties sitting idle. Returning these sites to productive use could create some 236,000 new jobs. Our nation's Mayors, as well as developers and bankers, say immediate action is imperative, since new tax laws provide incentives for brownfields redevelopment, but expire in 2001.
Congress should act before we adjourn to remove the unintended burden of Superfund liability that deters investors from buying and developing brownfields properties. Brownfields development results in significant economic benefits. It creates jobs and tax ratables for communities, which lowers local tax burdens on residents. The cleanup of brownfields also removes contaminants from our environment. These cleanup initiatives are win/win opportunities that make good environmental sense and good business sense.
Mr. President, if this body takes steps to encourage recycling, which I support, I urge my colleagues to also take steps to encourage brownfields development and to free our nation's small business owners from the unfair and punitive penalties being assessed on them. It is in the interest of good government, and clearly in the interest of millions of Americans, that we do so. Let's act now to revitalize our communities. And let's act now, and let Mrs. Williams discharge her lawyer.
Mr. President, the legislative language which would provide relief from brownfields and MSW liability is well known to all who have followed this debate. But, for the convenience of my colleagues, I ask that a summary be printed in the Record.
The summary follows:
Summary of Senator Frank R. Lautenberg's ``CERCLA Liability Exemptions Act of 1998'', containing a total of four exemptions, three in the brownfields arena and one in the municipal solid waste (MSW) arena.
The proposed legislation would relieve the following persons from Superfund liability:
(1) Brownfields--
(a) Bona fide prospective purchasers--persons who seek to buy contaminated properties, and can show that they did not cause the contamination;
(b) Innocent landowners--persons who already own property that they did not know was contaminated; and
(c) Contiguous landowners--persons who own property that becomes contaminated as a result of contaminants migrating from neighboring properties or areas; and
(2) Municipal Solid Waste--
individuals; small businesses (less than 100 employees); and small non-profit organizations (less than 100 employees)
who disposed only municipal solid waste (ordinary household trash, or house-hold-like trash, such as cafeteria or office paper waste) at a landfill.
The exemptions were replicated, almost verbatim, in S.8, except that S.8 would have shifted the exempt MSW party's share to the Trust Fund. Our Democratic substitute did not assign a share to the exempt MSW party, nor did S. 1834, the consensus bill reported out of EPW on an 11:4 vote in the 103rd Congress.
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