On September 29, 1995, Senator Robert Smith (R-NH) introduced into the Senate his proposal for reforming Superfund, entitled the "Accelerated Cleanup and Environmental Restoration Act of 1995" (S. 1285). The House proposal was introduced by Rep. Michael Oxley (R-Ohio) on October 15, 1995 and is entitled "Reform of Superfund Act of 1995" (HR 2500). While it is too early to know which bill will become the focus of the Superfund reform debate, the bills have several common themes about which everyone should be aware:
1. Retroactivity Survives
Realizing that repeal of retroactive liability likely would saddle taxpayers with the enormous burden of addressing abandoned sites, the sponsors of the bills have decided to retain retroactive application of the liability scheme. While the Administration favors the continuation of retroactivity, insurance companies and industry were hoping for a different result.
2. Liability Would Be Repealed at Municipal Landfill Sites
The Oxley bill proposes to exempt from liability all sites that were listed on the National Priority List (NPL) prior to June 15, 1995, and which received household waste prior to that date. According to Rep. Oxley's office, this provision would release from Superfund liability those Potentially Responsible Parties (PRPs) who are connected to approximately 250 "mixed-waste" sites nationwide, including the following New Jersey sites: Brick, Combe North and South, GEMS, Global, Kin-Buc, Lone Pine, PJP, Price, Sayerville, Sharkey and Helen Kramer.
3. Mandatory Non-Binding Arbitration
To encourage early settlement of disputes, both bills require PRPs to undergo a non-binding allocation process to determine each party's fair share of liability. Those who accept the allocator's findings would be eligible for tax credits.
4. Government Will Pay Orphan Shares
In addressing an issue that complicates settlement at many multi-party sites, liability for waste generated by non-viable entities, often referred to as "orphan shares," would be shifted under some circumstances from the financially-able PRPs to the government.
5. De Minimis Protection
Those parties who sent very small quantities of material to a site (less than 1% of total volume) would be offered early favorable settlements. Those who sent extremely low quantities of material (less than 55 gallons or 1,000 pounds) would be classified as de micromis and may be fully exempt from liability.
6. States Will Gain Influence
Under the proposed legislation, states would be given the power to control listings on the NPL and the selection of remedial activities.
7. "Brownfields" and Lender Liability Protection May Be Included
Those parties conducting voluntary cleanups would be eligible for protection from private and public judicial actions. The bills also propose adopting a "common sense" approach to protecting lenders, investors and innocent landowners.
8. Remedial Waste Exempt from RCRA
Under the reform proposals, wastes resulting from remedial activities would be exempt from the RCRA land ban rule and various permitting requirements, thereby decreasing the cost of various cleanup activities.
9. You Can't Ever Make All of the People Happy
The Administration and other Democrats are critical of the proposed bills because, among other things, they would shift a disproportionate share of the burden onto taxpayers and states while giving too many breaks to the "big polluters." Meanwhile, the insurance industry and small businesses feel that, without repeat of retroactive liability and retention of other protections, Superfund still will cost them too much.
10. Talk is Cheap
Even though Congress, USEPA and the White House want Superfund reform now, as the 1996 election campaign season continues, the timing of this debate is impossible to predict. Some say that if a reform bill is not passed by the New Year, nothing will happen until after the Presidential election.
