The nation's Superfund program has been the subject of much criticism, and appropriately so, for many years. This is the federal program which ranks the nation's dirtiest sites and is supposed to orchestrate their cleanup. Emphasis on supposed to; very few sites have been cleaned. And embarrassing sums have been wasted.

Many suspected that Congress would not tackle this controversial issue in 1996 because of the elections. Hopefully, 1997 will be the years for Superfund reform. One Bill, S8, was introduced in a Senate Committee in January 1997. It is only a Bill, which means it may go no where. However, there is a good chance that something might happen in 1997 and thus it is worth considering what has thus far been proposed:

Senate Bill 8
Introduced January 1997
Superfund Cleanup and Acceleration Act of 1997

Contains Brownfields provisions
Brownfields are moderately contaminated, generally urban properties that are vacant because they are contaminated. The Federal government and many States already have brownfields initiatives designed to encourage the recycling of these often abandoned factories.
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This Bill contains provisions designed to encourage Brownfields redevelopment:

1. Grant moneys to characterize brownfields. Characterization means defining both the nature and extent of contamination. Once this information is obtained with free grant money, the host municipality and/or prospective purchasers can estimate probable cleanup costs. This makes it easier to sell and develop the property.
   
2. Applicants must be able to demonstrate that a cleanup will stimulate job growth, the local economy and redevelopment.
   
3. EPA will establish a ranking system to prioritize grant applications.
   
4. In cases where there is a State approved cleanup plan, the EPA will minimize enforcement in case of a new release. This is consistent with the recent trend to clearly define division of responsibilities between the EPA and the States.
   
5. Key: prospective purchaser protection. This means that those who purchase contaminated property will generally not be held liable for cleanup costs. This protection is currently negotiated on a case by case basis. Codification may save purchasers a lot on money on typically costly negotiation fees.

1. States may apply to assume various degrees of site cleanup responsibilities.
   
2. Note: currently other cleanup programs (for example water pollution, wetlands) are to various extent delegated to some States. This is not a new concept. Moreover, many States have programs that are similar to Superfund. Delegation eliminates costly duplication.
   

1. Sampling of local views and attitudes.
   
2. Also, serves as an information conduit from EPA to community.
3. Historically, governments have claimed that large cleanups included public participation. However, many have alleged this has generally been mere lip service. Bill puts more muscle into concept of meaningful public participation.
   

Selection of Remedial Action
Many observers have complained that remedies cost too much to establish, overemphasize issues that are less essential and underemphasize truly significant issues.

1. General Criteria For Selecting the Remedy:
   
   • Effectiveness
     
   • Long term reliability
     
   • Short term risks
     
   • Acceptability to host municipality
     
   • Technical feasibility
     
   • Cost
     
2. Special Considerations for Groundwater
   Recognition of what some States already understand: not all groundwater must be cleaned. When cleaned, not all groundwater needs to be cleaned to the same standards.
   
   • What will the groundwater be used for?
     
   • Drinking Water is a priority.
     
3. Facility Evaluations:
   
   • These include site specific evaluations, risk assessments and remedy selections.
     
   • Draft evaluation shall be published by the EPA for community comment.
     
4. Liability
   This has historically been a controversial issue. Many feel that they have been unfairly tagged with disproportionate cleanup costs. The Bill limits the liability of certain groups:
   
   • Limits Municipality liability for municipal solid waste.
     
   • Creates a stronger deminimis quantity exception for those responsible for less than 1% of hazardous volume.
     
   • Has a Small Business Exemption applying to businesses with less than 30 employees and gross revenues under $3 million. This is a particularly revolutionary concept.
     
   • Creates an allocator who will determine percentage of cleanup costs parties will share; litigation on hold while this process takes place. Many Superfund cases are bogged down by very costly, often inefficient allocation processes.

The information provided in this column is written by Stuart Lieberman,a practicing environmental attorney, and is for general information purposes only. It is not legal advice and should not be used in place of legal advice.

Stuart Lieberman, Esq., and IRED.Com, Inc., will not accept any responsibilty for any reliance on the information in this column or any damages whatsoever resulting from reading this column.