We very much appreciate the opportunity to appear before this Subcommittee on cleanup activities under the Superfund program. The State Attorneys General have a major interest in the future of the Superfund program. As chief legal officers of the respective states, the Attorneys General enforce state and federal laws in their states. They help protect the public health and the environment and natural resources in their respective states. Because many steps in the Superfund cleanup process necessarily involve legal issues, the Attorneys General and their staffs often are called upon to advise state agencies -- both response agencies and natural resource trustee agencies -- on how the law should be interpreted and implemented to achieve the desired cleanup or restoration goals. We often are also responsible for negotiating cleanup and natural resource damages settlements, and when a settlement cannot be reached, it is our responsibility to commence and litigate an enforcement action. We also defend state agencies and authorities when Superfund claims are made by the United States or private parties against them.
NAAG also has been deeply involved in the Superfund reauthorization process for many years. At its Summer meeting on June 22-26, 1997, the sole resolution adopted by the state Attorneys General addressed Superfund Reauthorization; a copy of this bipartisan Resolution is attached. The NAAG Resolution arose from the recognition on the part of the State Attorneys General of the critical importance of the Superfund program in assuring protection of public health and the environment from releases of hazardous substances at thousands of sites across the country. The Attorneys General want to make the tasks of cleanup and protecting the public less complicated and more efficient, and to reduce the amount of litigation and the attendant costs that result.
In New York, our office has been litigating Superfund cases since 1981. A major impetus for the passage of CERCLA was the discovery of the infamous Love Canal and other Hooker Chemical Company sites in Niagara Falls, New York. CERCLA has provided both the federal and state governments essential tools to address the dangers posed by those and thousands of other sites in New York and throughout the country.
IMPORTANCE OF COST-RECOVERY LIABILITY
The ability to recover costs through CERCLA's liability provisions is crucial to our cleanup program in New York. About 10% of the sites on the New York State Registry of inactive hazardous waste disposal sites are NPL-listed, federally funded sites. Even though these sites are typically more expensive to clean up than the average contaminated site, federal money constitutes a relatively small part (about 13%) of all cleanup funding in New York, compared to private cleanup funding (about 66%) and State funding (about 20%). Most states have had similar results. On the federal level, private cleanup funding has resulted in the saving of some $10 billion of public money, because 70% of all remedial actions at federal Superfund sites are being performed by responsible parties.
For this reason, the ability to recover costs through CERCLA's liability provisions is even more important in our opinion than direct cleanup funding under CERCLA. Potentially responsible parties (PRPs) now know where they stand under CERCLA, and most see the wisdom of settling their liability with the government. This connection between enforcement and the generation of cleanup funds is vital to the overall hazardous waste cleanup program in this country.
The prospect of NPL listing and federal funding, as well as state funding of cleanup costs, is essential to setting the cost-recovery mechanism into motion. But Congress has done far more than make money available for cleanups. It has leveraged its money into far greater matching private dollars by creating and preserving liability for cost recovery.
Clear potential cost-recovery liability is the chief reason for private cleanup funding. Strict liability eliminates litigable issues and encourages voluntary cleanups. Case law established over nearly 20 years has added to the predictability of the outcome in litigation. In contrast, every change in the law carries with it a loss of predictability, with potential cleanup funding consequences. If CERCLA enforcement is undercut by amendment, the entire picture could radically change, with dire consequences for the 66% of cleanup costs in New York that is funded by private parties.
CERCLA enforcement has another crucial role in New York and other states. In our state there is no right under State statutory law to cleanup-cost recovery without first going through an administrative hearing. Our administrative process, which requires a full evidentiary hearing before liability can be established, is rarely used. We and the other states depend on our express right to sue in federal court under CERCLA. Natural resources damages enforcement in NYS is also based primarily on CERCLA.
It is also worth mentioning that CERCLA liability standards are right now being used as the model for proposed legislation in New York State. There is wide agreement among stakeholders in New York on the fairness of the existing defenses under CERCLA, i.e., the third-party defense, the innocent landowner defense, the lender exemption, and the de minimis settlement policy. It would be ironic indeed if New York and other states adopted CERCLA liability rules this year and then Congress made wholesale changes in CERCLA.
Nevertheless, there is a need for some liability reforms in CERCLA. NAAG's Resolution regarding CERCLA reauthorization called for clarification of the waiver of sovereign immunity and for the transfer of the regulatory authority of the Environmental Protection Agency (EPA) at federal facilities to the states. On July 26, 1999, forty-one Attorneys General reiterated the need for this clarification in a letter to the Senate Armed Services Committee, a copy of which is attached. NAAG strongly urges the adoption of language that is contained in the last session's DeGette/Norwood bill, as it represents the compromise reached between states and federal agencies in 1994, and would clarify the waiver without disrupting the status quo with regard to the issue of dual regulation at NPL sites.
NAAG also supports changes to the long-standing "Innocent Governmental Entities" exception to liability. The statute should be broad enough to address current abuses where, for example, states are subject to counterclaims based on sovereign ownership interests in groundwater, stream and river beds and other natural resources.
NAAG also supports reasonable limitations on liability for disposal of municipal solid waste. In addition, municipalities should not be unfairly burdened with cleanup costs resulting from their ownership or operation of landfills.
IMPORTANCE OF THOROUGH CLEANUPS
On the state level, Attorney General Spitzer is participating in the active public debate on Brownfields. Reforms to facilitate brownfield revitalization are clearly desirable--on that everyone agrees. Future use of contaminated sites must certainly be considered, and institutional controls must supplement excavation remedies. But, as usual, the devil is in the details.
Cleanup levels must not be set simplistically based on the current use of the site, or a developer's projected use. As required currently by EPA, future use must be carefully determined by examining current use, projected immediate use and much more; not only existing zoning laws and formal municipal plans should be consulted, but also the proximity of the site to residential areas, development trends in the area, local community views, environmental justice concerns and other relevant information. Indeed, in New York, we believe that where the site is adjacent to residences, there should be a presumption of an eventual residential use and consequently a residential level cleanup, and a developer should have the burden to convince the appropriate environmental agency why a less thorough cleanup is most appropriate under the remedy selection criteria.
Similarly, institutional controls must not be seen as panaceas. Some institutional controls that are necessary when industrial level cleanups are done are less reliable than others. For example, a deed notice that soil beneath a building is contaminated and that the building should not be removed is inherently suspect over the long term, because a building has a far shorter life than that of most hazardous substances. The building will eventually deteriorate and even collapse, exposing the underlying contamination. EPA and state environmental agencies should consider the long-term effectiveness of any brownfields cleanup, including the reliability of institutional controls, along with cost and other relevant factors and choose the remedy that best meets all the appropriate criteria.
Where government must perform the cleanup and sue for cost recovery, it is important that litigation over the amount of costs recoverable be streamlined. As you know, CERCLA presently limits the judicial review of EPA remedies to the administrative record compiled by the agency. The remedies selected by states should likewise be reviewed on the administrative record compiled by the state counterpart of EPA, rather than through a costly, time-consuming trial.
Another necessary amendment to treat state and federal environmental agencies the same would authorize the federal Superfund to pay state natural resource trustees' assessment costs.
CONCLUSION
The State Attorneys General strongly support a fair and effective cleanup program. The public expects government at all levels to protect the public health and the environment from facilities that are releasing hazardous substances, and they expect the parties responsible for those threats to pay their fair share. Whatever refinements are made in the current liability and cleanup rules must be true to these overarching objectives.