Superfund Liability Relief for Small Business Blocked in the 106th U.S. Congress
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F E AT U R E S | E N V I R O N M E N TA L L AW S E C T I O N
Superfund Liability Relief for Small Business
Blocked in the 106th U.S. Congress
by John H. Stoody
O n May 25, 2000, U.S. Senator Christopher S. Bond of
Missouri, introduced the Small Business Relief Act of 2000.1
The bill sought to exempt small businesses with 100 or fewer
disposed of their trash and cannot afford the tab that comes with
Superfund legal bills.” Sen. Bond stated that “the situation in
Quincy, is just one example of the very real, ongoing Superfund
employees from liability for cleanup costs imposed by the legal threat to small business owners across the nation.”6
Comprehensive Environmental Response, Compensation and
Liability Act of 1980 (CERCLA/Superfund).2 Under CERCLA, per- S. 2634 was referred to the Senate Committee on Environment
sons, including small businesses, incur this liability when they and Public Works without further action. By the end of the just
are found to have contributed, or “arranged for disposal” of, concluded 106th U.S. Congress, attempts to reform Superfund
hazardous substances to a Superfund site requiring cleanup.3 In liability provisions for small business achieved no better outcome.
the 20 years of the Superfund program, liable parties have con- This article will review the legislative attempts over the past two
tributed to costs of cleaning up 1,450 sites and helped fund years at Superfund liability relief for small business, the stake-
emergency response to more than 6,400 chemical spills or explo- holder positions concerning those proposals, and the legislative
sions.4 However, the history of the Superfund program also outcome of the 106th Congress. Hopefully, the 107th Congress
provides examples of small businesses unfairly pulled into costly will not repeat these experiences.
and prolonged Superfund litigation without a showing of their
liability or that their contribution of hazardous substances would
have material impact on the environment. Superfund and Its Explosion of Litigation
It is important to briefly review the fundamental features and
In introducing his bill, S. 2634, Senator Bond said that he hoped impacts of CERCLA to help illustrate the legal quandary faced by
the legislation would “provide a lifeline for the thousands of small small businesses threatened with Superfund liability. The purpose
business owners threatened by lawsuits and litigation under the of CERCLA is to provide for the cleanup of hazardous waste
broken Superfund liability system.”5 Sen. Bond cited the example sites.7 CERCLA accomplishes this by: establishing hazardous sub-
of Quincy, Illinois, just across the Mississippi River from Missouri. stance release notification, information gathering and reporting
There, “160 small business owners were asked to pay the EPA requirements;8 providing authority to the federal government to
more than $3 million [in cleanup costs] for garbage legally respond to hazardous substance releases or threats of release
hauled to a dump more than 20 years ago.” Those small busi- with cleanup or other remedial activities;9 creating a fund
ness were “restaurant owners, mom-and-pop convenience store (Superfund) financed by industry taxes and cleanup fees to pay
operators, and other small business owners who have legally for cleanup;10 and imposing a strict liability for cleanup costs on
“160 small business owners were asked to pay the EPA more than $3 million
[in cleanup costs] for garbage legally hauled to a dump more than 20 years ago.”
24 April 2001E N V I R O N M E N TA L L AW S E C T I O N | F E AT U R E S
contributors to hazardous substance sites along with owners, Need for Small Business Reform
operators and transporters.11 However, CERCLA does not appor-
tion liability among potentially responsible parties (PRPs) when The ability of CERCLA to allow litigation against numerous par-
EPA seeks reimbursement of cleanup costs. Additionally, it is ties does not ensure that they are treated fairly. The plight of a
usually impossible to divide among PRPs the harm posed by the single small business owner, Barbara Williams of the Sunny Ray
mixture of pollutants at a site. Therefore, courts have held that Restaurant, brought the Gettysburg, Pennsylvania, case to
the strict liability imposed by CERCLA is also joint and several.12 national attention.[18] Sunny Ray Restaurant utilized the trash
In this way, a single PRP, or a few out of a potential total of hauler approved and licensed by the local borough government
many PRPs, may be liable to EPA for the entire cost of cleanup
at a Superfund site regardless of the relative amount of harm The ability of CERCLA to allow litigation
contributed by that PRP to the site. It also follows from basic tort
law—and courts affirm—that defendant PRPs seeking to limit against numerous parties does not
their liability on the grounds that the harm is capable of appor- ensure that they are treated fairly.
tionment bear the burden of proof of apportionment.13
CERCLA imposes this powerful strict and joint and several liabil- to dispose of its table scraps from menu items such as a $1.99
ity scheme on a wide array of PRPs including: current and former breakfast. In this regard, Sunny Ray Restaurant was sued as a
owners and operators of facilities that become Superfund sites, PRP waste generator for $76,253.71 in cleanup costs. Barbara
anyone who generates hazardous substances disposed of at Williams contended that the restaurant shipped no hazardous
Superfund sites, and transporters who deliver hazardous sub- substances to the landfill, only food scraps such as unwanted
stances to Superfund sites.14 Therefore, current site owners who potatoes. However, like many small businesses, Sunny Ray had
played no role in the prior contamination of the site may face no documentation to support its assertion. Potentially more
Superfund liability. Additionally, any person who sent hazardous debilitating, as a small business Sunny Ray possessed limited
waste to the site, no matter how small an amount, may be liable financial resources to pursue litigation to defend its position.
for the entire costs of cleanup at a site. Likewise, those who While a medium- or large-sized corporation might choose settle-
merely transported waste generated by another to a site operated ment as a financially reasonable outcome, the $76,000 settlement
by another may be made liable for all cleanup costs. In enforc- contribution threatened to bankrupt the family owned small
ing the liability scheme of CERCLA, EPA will first seek to identify business.
PRPs.15 EPA will then attempt to negotiate a settlement with each
PRP to finance and, if possible, conduct the cleanup of the site. A similar and more recent example of the impossible position
EPA will seek under CERCLA Section 107 to recover cleanup faced by small businesses in Superfund litigation is highlighted
costs from PRPs in cases where EPA conducted the cleanup itself by the Quincy, Illinois, Superfund site. As mentioned briefly
with funds from the Superfund. This may occur in emergency above, Quincy is a small community of approximately 46,000
circumstances endangering public health or where PRPs were people located on the banks of the Mississippi River 150 miles
recalcitrant or unknown at the time. Similarly, CERCLA Section north of St. Louis. Between 1967 and 1978, the 56 acre Adams
113 allows PRPs who have incurred cleanup costs themselves to County Quincy Landfill operated under a license granted by the
“seek contribution from any other person who is liable or poten- State of Illinois.19 In 1986, contamination from the site was dis-
tially liable under Section 107.”16 Therefore, the CERCLA liability covered and investigated by the Illinois EPA. EPA listed the land-
scheme covering site owners and operators, contributors and fill as a Superfund site in 1990. EPA identified six large corpora-
transporters without regard for relative level of culpability, cou- tions and the City of Quincy in its first search for PRPs. On
pled with CERCLA mechanisms permitting suits for cost recovery February 10, 1999, EPA sent letters to 149 small businesses, indi-
and contribution among third parties, encourages a prolific level viduals, and school districts requesting payment of $3 million
of litigation. towards site cleanup costs. EPA sent an Administrative Order on
Consent to each PRP with requests for settlement for amounts
An example from Gettysburg, Pennsylvania, illustrates how the ranging from $40,000 to more than $100,000. Recipients included
litigation web from a single Superfund site can spread rapidly to Catholic grade schools, the local university, bowling allies,
engulf hundreds of PRPs. In 1982, residents of the Gettysburg- restaurants, small mom and pop trash haulers, furniture stores
Hanover area of Pennsylvania became aware of water supply and the local McDonalds. EPA provided a deadline of 45 days
contamination from the local Keystone Landfill. In 1984, EPA con- for the PRPs to make a settlement decision.
ducted a field investigation. In 1987, EPA formally declared the
Keystone Landfill a Superfund site, although both EPA and the While the majority of waste sent or hauled to the site by the 160
Commonwealth of Pennsylvania permitted dumping at the land- small PRPs was only trash and legally disposed of at the time,
fill until it closed, filled to capacity, in 1990. In 1993, EPA filed the liability and litigation provisions of CERCLA allowed for each
suit against site owners and 11 original generators of hazardous of the 160 PRPs to be drawn into litigation. Each of the small
waste sent to the landfill. In 1994, the 11 original generator PRPs businesses faced the choice of pursuing litigation and its atten-
filed suit against 180 third party small businesses, boroughs and dant transaction costs to disprove or divide its liability, or agree
school district PRPs. In 1995, the third party defendants filed suit to settlement in the face of their innocence. A meeting between
against over 550 other small businesses and individuals as PRPs. an EPA attorney and Quincy PRPs illustrating this dilemma was
Between 1996 and 1997, a total of 550 parties settled with EPA described by a participant:
and the original generator PRPs. As of 1999, the legal liability for
close to 200 additional parties remained unresolved.17
Virginia Lawyer 25F E AT U R E S | E N V I R O N M E N TA L L AW S E C T I O N
On February 24, 1999, EPA sent one of their SARA and Attempts at
attorneys to Quincy to help explain its letter
and to answer questions. The meeting lasted Administrative Reform
for over two hours. The EPA attorney tried to Congress reauthorized and amended CERCLA with the Superfund
answer questions and comment on how the Amendments and Reauthorization Act (SARA) of 1986.23 In an
law was being applied. Many people stood effort to speed settlements and reduce transaction costs of litiga-
up and pleaded their situation and how unfair tion, SARA included EPA-developed tools designed to provide
and un-American this whole situation was. incentives for PRPs to negotiate cleanup settlements.24 SARA
[The EPA attorney] admitted to everyone that specifically permitted EPA to enter into de minimis settlements
the law was probably unfair and very harsh. with PRPs if the settlement involved only a minor portion of the
He said it was intended to be harsh, but he total response costs at the facility and their contribution of haz-
couldn’t do anything about its unfairness. ardous substances was minimal in comparison to the total site
Even though the law seemed unfair, he said contamination.25
that it was all he had to work with. EPA and
the 6 major PRPs weren’t concerned about the In addition to the legislative reforms of SARA, EPA began imple-
waste that was sent to the landfill as being mentation of 62 administrative reforms to the Superfund program
hazardous. The make up of what we sent which EPA could take under its existing authority.26 According to
there was irrelevant. It was the volume that EPA, the initiatives covered virtually every aspect of the Superfund
we sent to the landfill that they cared about, program to make it “faster, fairer and more efficient.”27 EPA char-
even if the trash was not dangerous. They acterized fourteen of the initiatives as having significantly and
knew many of us didn’t send hazardous measurably improved the program including: encouraging greater
waste and they knew we couldn’t afford to use of alternative dispute resolution; promoting “enforcement first”
fight them. We became an easy money source to get private parties (v. the Superfund) to fund most of the clean-
for them because of the real threat of litiga- ups; EPA funding of “orphan share” costs of insolvent or defunct
tion by the major PRPs. And when you think parties; promoting de minimis settlements with parties that con-
about it, what small company can take on 6 tributed relatively small amounts of waste; and guidance for de
large corporations and the EPA alone and micromis parties which contributed minuscule amounts of waste.28
win? If we didn’t accept the settlement offer,
the major PRPs would sue us for the entire EPA intended the de micromis and de minimis reforms to help
cleanup cost. We were stuck. Pay up or be small business by reducing litigation and associated costs,
wiped out. The attorney for the EPA admitted increasing the program’s fairness, and encouraging more, early
that it would cost us more to fight them in and expedited settlements.29 The 1996 de micromis guidance
court to prove we didn’t haul hazardous expanded the number of parties eligible for de micromis settle-
waste to the landfill than to just go ahead and ments, offered no-cost protective agreements removing de
settle. It all came down to money . . . and micromis parties from the liability process, streamlined and sim-
they had more than we did.20 plified the settlement process, and clarified and emphasized
EPA’s intent to protect such parties.30 The guidance has shown
From these horror stories developed a loose consensus in no measurable increase in de micromis settlements.31 Through
Congress around the need to reform the Superfund program and fiscal year 1999, EPA completed de micromis settlements at only
include liability relief for small business. Congressional leaders six sites using the 1996 guidance. Since 1993, EPA completed a
concluded, “the current Superfund program promotes litigation total of only 16 de micromis settlements at 11 sites.32 EPA claims
and stifles cleanup. The time to reform Superfund is long over- that despite the small number of de micromis settlements, they
due.”21 Similarly EPA Administrator Carol Browner, stated the are successful in deterring PRPs from filing third- party contribu-
administration’s support for some type of small business liability tions against small parties.33 Since the 1996 de micromis guid-
relief. “We all want to fix the very real problems of the small ance, the experiences of the hundreds of small business third
parties [that are caught up in Superfund],” Browner indicated in and fourth generation PRPs from Gettysburg, Pennsylvania, and
testimony before Congress. “We want to protect the ‘little guys’— Quincy, Illinois, show that this assertion is not based upon reality.
the small businesses, the mom-and-pop operations—that we all
agree have become unfairly entangled in Superfund litigation . . . While the de micromis guidance generated relatively few settle-
The owner of the diner who sends mashed potatoes to the local ments, thousands of parties have entered into de minimis settle-
dump should not have to worry about being sued by large cor- ments with EPA. According to senior EPA officials, “[EPA] has
porate polluters who are responsible for the contamination of aggressively sought to promote fairness in the liability system by
that site.”22 Unfortunately, despite these stated desires for reform, reaching [de minimis] settlements with more than 18,000 small
relief for small business has proven elusive. volume waste contributors, more than 65 percent of these settle-
Unfortunately, despite these stated desires for reform, relief
for small business has proven elusive.
26 April 2001E N V I R O N M E N TA L L AW S E C T I O N | F E AT U R E S
ments occurring in the last fouryears.”34 Administrative reforms Despite the large number of de minimis
to promote de minimis settlements included: simplifying require-
ments for determining parties’ eligibility for de minimis settle- settlements EPA reached with PRPs, the
ments, streamlining the settlement process, and guidance to EPA
Regions to encourage de minimis settlements.35 experience of small businesses shows
Despite the large number of de minimis settlements EPA reached that these settlements are neither fair
with PRPs, the experience of small businesses shows that these
settlements are neither fair nor cost-reducing. As seen in the
nor cost-reducing.
Quincy, Illinois, example above, EPA sought de minimis settle-
ments from nearly 150 small parties for over $3 million in
cleanup costs. However, EPA admitted that many of the parties sites. States, local governments, cleanup engineers, dozens of
were not guilty of sending hazardous substances to the site.36 experts, and Republicans and Democrats alike agree on the need
Additionally, EPA admitted to the lack of bargaining power the for substantial reform.”40 Hearings on legislative reform propos-
resource poor small businesses possessed in the choice between als abounded. Indeed, over the course of the last seven years,
hefty settlement amounts and the threat of continued litigation.37 the House Commerce Committee conducted 27 hearings with
One of the Quincy small businesses articulated its predicament 275 witnesses appearing before its Hazardous Materials
at a Congressional hearing: Subcommittee.41 With these hearings, the 106th Congress pro-
duced major legislative proposals to reform the entire Superfund
If you’re the EPA, and I’ve talked with the program as well as measures targeted specifically to small busi-
people [at EPA] that have been involved with ness liability relief.
us who say, yes, it was a successful settle-
ment, in that they did get us to settle. From The 1st Session of the 106th Congress produced comprehensive
our perspective, though, it wasn’t a success, Superfund reform proposals from the majority on each of the
because 149 companies in Quincy were not major committees with jurisdiction: House Commerce (H.R.
responsible for the hazardous waste that 2580), House Transportation and Infrastructure (H.R. 1300), and
caused the site to be declared a Superfund Senate Environment and Public Works (S. 1537).42 The compre-
site. We had a process that basically, and I hensive reform proposals addressed issues such as brownfields
used in my testimony the word “forced,” and revitalization, community participation, liability reform, remedy
we were forced into it . . . we were basically selection, and other general provisions.43 Each also contained
told that if we did not settle with the amounts provisions specifically designed to provided liability relief to
they gave us, then we would be hauled into small businesses which met the legislation’s criteria.44 All three
Federal court and our cost would be way proposals, as well as nearly every proposed piece of Superfund
beyond anything we could ever imagine . . . liability relief legislation, limited liability relief to generators or
they point to Quincy as being a success story. transporters of waste to a site and the proposed legislation did
For the small business and those of us in not offer relief for current or former site owners.45 Each of the
Quincy, we had to be involved. It was a dis- leading comprehensive reform proposals set the size of an eligi-
aster and a very difficult for our companies.38 ble small business at no more than 75 employees, and limited
annual revenues to no more than $3 million.46 Additionally, each
Small businesses in the Gettysburg, Pennsylvania, case also felt provided additional requirements, including no relief for those
undue force to reach a settlement with EPA. The Littlestown who contributed to the harm through gross negligence or inten-
School District, a PRP of the Keystone Landfill, faced a $40,000 tional misconduct;47 failed to comply with EPA information
settlement offer from EPA. “I don’t think we should pay it,” requests;48 impeded response actions at the site;49 or generated
stated school board Vice President N. Thomas Miller during dis- waste which contributed significantly to cleanup costs.50
cussion of the offer, “it’s just plain extortion.”39
Reform proposals sponsored by minority members differed in a
fundamental respect from majority proposals.51 While both
sought to limit liability only to those who contributed small
Legislative Proposals from the 1st Session amounts of waste, the minority placed the conditions on the
of the 106th Congress type of waste, not the size of the business or the cost to cleanup
The failure of previous legislative and administrative reforms to whatever waste contributed. Each minority bill restricted small
protect small businesses in Gettysburg, Pennsylvania, and business liability relief only to those who contributed municipal
Quincy, Illinois, drove Congress to take up the issue of waste to a site.52 Waste is considered to be municipal solid waste
Superfund reform in the 106th Congress. The frustration felt if it is essentially the same as waste normally generated by a
toward the existing Superfund program was summarized by household or is collected and disposed of with other municipal
House Commerce Committee Chairman Tom Bliley (R-VA), “The waste or sewage sludge.53 Minority proposals did not set busi-
Superfund law is a prime example of [a broken environmental] ness revenue pr personnel ceilings to screen out large compa-
program. It is unjust, costly, unrealistic, and poses barriers to nies or establish exclusions for those whose waste contributed
cleanups all across the Nation. Its liability scheme has created a significantly to cleanup costs.54 The only relief for those who
litigation nightmare which has hurt individuals, small businesses may have contributed some type of hazardous substance applied
and communities, and has delayed the cleanup of toxic waste
Virginia Lawyer 27F E AT U R E S | E N V I R O N M E N TA L L AW S E C T I O N
The Sierra Club asserted majority Members of Congress in the majority expressed frustration at the
lack of EPA support for their legislative Superfund proposals
reform proposals “contained a after the EPA administrator’s previous support for relief.64
Members noted that the bills sponsored by the majority had
raft of inappropriate and overly actually received bipartisan support.65 Near the end of the 1st
Session of the 106th Congress, H.R. 1300 had 60 Democrat and
broad liability carveouts, each of 60 Republican cosponsors and had been reported out of the
Transportation and Infrastructure Committee by a vote of 69-2.66
which undercuts the polluter-pays Perhaps frustration ruled when the chair of a subcommittee
hearing EPA testimony said, “I have heard your testimony and
principle and shifts more cleanup there is simply no evidence in my mind that any of the
Administration’s actions in the 106th Congress indicates that the
costs to the general public.” Administration is getting the message. Sixty Democrats from the
House are sending you a message. They no longer want to pur-
sue this strategy where the Administration can only say nice
things about purely Democrat bills and otherwise oppose mean-
to those who may have contributed de micromis, or extremely
ingful bipartisan efforts.”67
small, amounts (irrespective of firm size or ability to pay).55
Without sufficient support, none of the legislative proposals of
EPA opposed the majority-sponsored Superfund reform propos-
the 1st Session of the 106th Congress were considered by the
als.56 Their substantive reasons for opposition included fears that
full House or Senate.
the small business liability exemptions would increase litigation
and transaction costs, remove accountability for those who con-
tributed large amounts of toxic waste to a site, and shift costs of
cleanup from polluters to the taxpayers.57 EPA interpreted major- Legislative Proposals from the 2nd
ity proposals as moving from the defendant to the government Session of the 106th Congress
or third parties the burden of proof on the level of waste con- Proponents of small business Superfund liability relief tried a
tributed to site.58 EPA feared that it would incur increased costs more focused approach in the 2nd Session of the 106th Congress
in attempting to prove that a small business’ wastes actually con- by abandoning efforts at comprehensive Superfund reform and
tributed significantly to the cost of cleanup. Indeed, EPA feared focusing solely upon targeted relief for small business. In the
that given the “toxic soup” of wastes at most sites, it would be Senate, Sen. Bond introduced S. 2634. As described previously,
difficult if not impossible for EPA to make this determination. the proposal would have provided liability relief to small busi-
However, inability to divide the harm is the main, if not unassail- ness waste generators or transporters with less than 100 employ-
able, handicap for small business. Opposition to this provision ees.68 The liability relief would not have applied to those whose
by EPA would represent a fundamental inability to agree to relief waste the government or a third party demonstrated contributed
for small business. significantly to the cost of site cleanup. The legislation also con-
tained a provision to prohibit relief for costs or damages as a
Other stakeholders opposed the majority sponsored legislation as result of gross negligence or intentional misconduct. The pro-
well. The Department of Justice shared EPA’s concerns on the posal purposely did not, however, establish limitations on the
shifted burden of proof.59 DOJ also believed that the bills would revenue size of relief recipients or the amount of waste con-
grant exemptions to a large group of small businesses, which tributed to the site. Drafted as an initial negotiating position, the
could include businesses that contributed large amounts of highly measure was referred to the Senate Committee on Environment
toxic wastes. States also feared the liability exemptions of major- and Public Works to await House passage of its version.
ity proposals, arguing that unfunded cleanup costs of exempt
small businesses would be borne by the federal Superfund and In the House, Rep. Oxley (R-OH) introduced H.R. 5175, the
the states through their 10% cost share obligations.60 Small Business Liability Relief Act.69 That measure limited liability
relief to generators or transporters of waste with no more than
The Sierra Club asserted majority reform proposals “contained a 100 employees and annual revenues of $3 million.70 The bill also
raft of inappropriate and overly broad liability carveouts, each of prohibited liability relief for those whose waste significantly con-
which undercuts the polluter-pays principle and shifts more tributed to the cost of site cleanup, failed to comply with infor-
cleanup costs to the general public.”61 The Sierra Club noted that mation requests, or who impeded response activities.71 The bill
legislation included exemptions for small businesses with up to also provided liability relief for small businesses who contributed
75 full-time employees and $3 million in gross revenues even municipal solid waste and expedited settlement procedures for
though almost 90% of the nation’s businesses have fewer than those with a limited ability to pay cleanup costs.72 Most impor-
20 employees.62 However, environmentalists were not united on tantly, the legislation responded to critical concerns with previ-
this front. Representatives from the Environmental Defense Fund ous reform attempts by imposing a de micromis ceiling limiting
felt that “it is inefficient to sue a bunch of companies that will the liability relief to those who contributed less than 110 liquid
clearly be unable to make any significant contribution to cleanup gallons or 200 pounds of hazardous waste.73
costs; doing so merely increases transaction costs for all con-
cerned without providing funds for actual cleanup, and leads to
delays in decision making.”63
28 April 2001E N V I R O N M E N TA L L AW S E C T I O N | F E AT U R E S
H.R. 5175 seemed to follow the suggestions of environmentalists hearing on Superfund reform issues.84 Members used the oppor-
who “agree that many small businesses and minimal waste con- tunity to question EPA witnesses regarding their drop of support
tributors have been unfairly subjected to harassment under the for small business liability relief. EPA stated that it “still had lin-
CERCLA statute . . . . We suggest an exemption for parties who gering concerns” over the legislation, including the shifted bur-
only contributed household-type wastes, liability waivers for den of proof to the government.85 In the members’ hope that
those who sent tiny amounts of hazardous materials, and aggres- “some language could still be moved this year,” EPA agreed to a
sive settlements with parties who sent small amounts of hazardous member request to provide by the end of the week written com-
substances.”74 ments back to the committees in the form of legislative language
that EPA would support.86
On September 14, 1999, Rep. Oxley introduced his legislation “in
order to provide long overdue liability relief to individuals, fami- However, EPA failed to meet the agreed upon deadline. EPA had
lies, and small business owners unfairly trapped in the litigation failed to submit draft legislation as of an October 19, 2000 letter
nightmare of the Superfund program for over two decades.”75 from the House Committees on Commerce and Transportation
In addressing the issue of the shifted burden of proof contained and Infrastructure to EPA’s chief Superfund official.87 In a further
in the bill, Oxley said, “I do not believe that small businesses expression of Congressional frustration over EPA’s failure to pro-
should be presumed guilty and be forced to hire and pay for vide a proposal it would support, the letter said, “The
attorneys to prove their innocence. This is fundamentally wrong Administration’s broken promises are evident to the Committee
and unfair. In America, you are innocent until proven guilty. The and certainly will not be forgotten by the innocent small busi-
government or larger businesses should have the burden of pro- ness owners that have been misled. The Administration has
viding evidence—solid evidence—that small businesses are played politics with Superfund reform for years now, and your
liable before demanding cash settlements.”76 most recent promise is now weeks overdue. Where is the lan-
guage you promised to deliver on behalf of EPA?”88
On September 26, 2000, nearly two weeks after H.R. 5175 was
referred to both the House Commerce Committee and the House This letter produced a legislative proposal from EPA on October
Transportation and Infrastructure Committee, Oxley moved to 24, 2000.89 While EPA asserted the proposal “represent[ed] a
bring his bill to the floor for a vote under a suspension of House response from EPA,” the draft did not have the agreement of
rules.77 With very few days anticipated remaining in the legisla- other federal agencies or the required endorsement from the
tive session, he called for the measure to be allowed to travel White House Office of Management and Budget.90 The proposal
expeditiously to the floor for consideration without making an also placed the burden of proof squarely on PRPs,91 making the
additional stop at the Rules Committee. However, under this pro- practical effect of the draft inconsequential to small businesses
cedure the measure required a two-thirds majority for passage.78 facing impossible litigation costs and evidentiary hurdles.
In the vote on the floor, the bill failed to achieve that majority at Procedurally, the proposal came too late in the session for
253 to 161.79 Congress to act. “EPA ‘ran out the clock’, ” according to a
Congressional source. “It does no good to receive this language
Opposition to the measure centered around the limited discus- until two days before the end of Congress.”92 Congress took no
sion afforded the bill on the floor, opposition by certain environ- further action on H.R. 5175 or any other small business
mental groups, and opposition by EPA.80 Majority members dis- Superfund liability relief proposals in the 106th Congress.
counted minority allegations of a lack of debate, noting the “46
hearings [in the House] on Superfund with testimony from 416 Like the 1st Session of the 106th Congress, the 2nd Session failed
witnesses.”81 Instead, majority members held EPA largely to to produce small business Superfund liability relief. A change of
blame for the defeat. Supporters claimed that EPA decided not to strategy from comprehensive reform proposals to targeted relief
support the bill, even after [EPA] played a key role in drafting aimed at areas of relative consensus failed. In the end, the
the legislation and having its concerns addressed in the lan- administration remained opposed to legislation which would
Proponents of reform remained convinced that such a burden,
including its resulting crippling transaction costs for the small
business, were the very reason for reform.
guage.82 Rep. Oxley said, “‘When H.R. 5175 was on the floor, shift the burden of proof from PRPs to the government in the
and we thought we could get together in a bipartisan manner, case of small businesses. Proponents of reform remained con-
EPA would not meet with us to discuss concerns raised in the vinced that such a burden, including its resulting crippling trans-
legislation . . . [even though] the Committee made changes that action costs for the small business, were the very reason for
EPA requested.”83 reform. With this fundamental gulf separating the parties in the
current political climate, no meaningful relief for small business
On October 3, 2000, the House Commerce Committee and the was possible.
House Transportation and Infrastructure Committee held a joint
Virginia Lawyer 29F E AT U R E S | E N V I R O N M E N TA L L AW S E C T I O N
Epilogue
John H. Stoody serves as environmental
The election of President George W. Bush and the retention of counsel to U.S. Senator Christopher S. Bond,
Congress by the Republicans brightened, although did not chairman of the Senate Committee on Small
assure, prospects for small business Superfund liability relief. Business, chairman of the Senate
Sen. Bond, at the confirmation hearing for incoming EPA Appropriations Subcommittee funding the U.S.
Administrator Christine Todd Whitman, indicated that he will Environmental Protection Agency, and mem-
continue to push for Superfund liability relief for small busi- ber of the Environment and Public Works
ness.93 A description of the internal disagreements within the Committee. He is on loan to Sen. Bond from
Republican caucus over Superfund reform strategy would require the U.S. Environmental Protection Agency,
another article. However, the largest roadblock to reform, an Office of Enforcement and Compliance
opposing administration, is now removed and some form of Assurance. Mr. Stoody is a past member of the City of Alexandria’s
Superfund liability relief for small business is now likely. Environmental Policy Commission and a current member of the Board of
Governors of the Virginia State Bar Environmental Law Section. The
views and opinions expressed herein are those of the author and do not
Endnotes necessarily represent the views of Sen. Bond, the U.S. EPA, or the
1 S. 2634, 106th Cong., 2d Sess. (2000). Virginia State Bar.
2 See 42 U.S.C. §§9601-9675 (2000).
3 See CERCLA §107, 42 U.S.C. §9607 (2000). Liability is also imposed on persons
who owned or operated the facility either at the time hazardous substances 24 See SARA §122, codified at 42 U.S.C. §9622 (2000).
were disposed there, or at the time the cleanup costs were incurred, and on
persons who transported hazardous substances to the site, if they selected the 25 Id. at 122(g)(1), codified at 42 U.S.C. §9622(g)(1) (2000).
site for disposal. Id. 26 U.S. General Accounting Office, Superfund: Extent to Which Most Reforms
4 U.S. Envtl. Protection Agency, EPA Administrator Browner Celebrates 20th Have Improved the Program is Unknown 5 (2000).
Anniversary of Superfund in Philadelphia on Dec. 7 (2000). 27 Id. at 113 (Letter from Timothy Fields, Assistant Administrator for Solid Waste
5 146 Cong. Rec. S4463 (2000) (statement of Sen. Bond). and Emergency Response, U.S. Envtl. Protection Agency to Peter Guerrero,
Director of Envtl. Protection Issues, U.S. General Accounting Office (Apr. 28,
6 Id. 2000)).
7 See 1980 CERCLA Legis. Hist., Vol. 2 at 228-229 (summary of H.R. 7020 by 28 Id. at 10.
Rep. Florio).
29 Id. at 31.
8 See CERCLA §103, 42 U.S.C. §9603 (2000).
30 Office of Site Remediation Enforcement, U.S. Envtl. Protection Agency,
9 See CERCLA §104, 42 U.S. C. §9604 (2000). Revised Guidance on CERCLA Settlements with De Micromis Waste
10 See CERCLA §111, 42 U.S.C. §9611 (2000). Contributors (1996).
11 See CERCLA §107, 42 U.S. C. §9607 (2000). See also footnote 5 infra. 31 GAO, supra note 27, at 47.
12 See U.S. v. Chem-Dyne Corp. 572 F. Supp. 802, 810 (S.D. Ohio 1983). But see 32 Id.
U.S. v. Monsanto Co. 858 F.2d 160 (4th Cir. 1987) (where divisibility of harm 33 Id. at 48.
is demonstrable, courts allow limit imposition of liability on a “several” basis).
34 Commerce. Comm. Hearing (1999), supra note 21, at 161 (statement of
13 Id. Steven Herman, Assistant Administrator for Enforcement and Compliance
14 See CERCLA §107(a), 42 U.S.C. §9607(a) (2000). Assurance, U.S. Envtl. Protection Agency).
15 Office of Enforcement and Compliance Assurance, U.S. Envtl. Protection 35 GAO, supra note 27, at 31.
Agency, EPA Superfund Enforcement Process (2000). 36 Commerce. Comm. Hearing (1999), supra note 21, at 200 (statement of Mike
16 42 U.S.C. §9613(f)(1) (2000). Nobis, JK Creative Printers).
17 Hearing on Superfund Reauthorization and Reform Legislation Before the 37 Id.
House Comm. on Transportation and Infrastructure, Subcomm. on Water 38 Id. at 227.
Resources and Environment, 106th Cong., 1st Sess. (1999) [hereinafter
Transportation and Infrastructure Comm. Hearing (1999)] at 276 (statement 39 Robert Holt, Littlestown Rejects Latest Settlement Offer, Gettysburg Times, Sep.
of Thomas M. Sullivan, National Federation of Independent Business). 10, 1997, at A1.
18 Hearing on Superfund Reauthorization and Reform Legislation Before the 40 Commerce Comm. Hearing (1999), supra note 21, at 148 (statement of Rep.
House Comm. on Transportation and Infrastructure, Subcomm. on Water Bliley).
Resources and Environment, 105th Cong., 1st Sess. 268 (1997) [hereinafter 41 Id. at 138 (statement of Rep. Oxley).
Transportation and Infrastructure Comm. Hearing (1997)] (statement of
Barbara Williams, Sunny Ray Restaurant). 42 See H.R. 1300, 106th Cong., 1st Sess. (1999) (sponsored by Rep. Boehlert);
H.R. 2580, 106th Cong., 1st Sess. (1999) (sponsored by Rep. Greenwood); S.
19 Transportation and Infrastructure Comm. Hearing (1999), supra note 18, at 1537, 106th Cong. 1st Sess. (1999) (sponsored by Sen. Chafee).
277 (statement of Thomas M. Sullivan, National Federation of Independent
Business). 43 See, e.g., H.R. 1300.
20 Hearing on Legislation to Improve the Comprehensive Environmental 44 See H.R. 2580 §304 (“[N]o small business shall be liable . . . ”); H.R. 1300
Response, Compensation, and Liability Act, House Comm. on Commerce, §306; S. 1537 §301.
Subcomm. on Finance and Hazardous Materials, 106th Cong., 1st Sess. 200 45 H.R. 2580 §304(a), H.R. 1300 §306(a), S. 1537 §301(b).
(1999) [hereinafter Commerce. Comm. Hearing (1999)] (statement of Mike
Nobis, JK Creative Printers). 46 Id.
21 Transportation and Infrastructure Comm. Hearing (1997), supra note 19, at 3 47 H.R. 1300 §306(a).
(statement of Rep. Boehlert).
48 H.R. 2580 §304(a); S. 1537 §301(b).
22 Id. at 42 (statement of Administrator Carol Browner, U.S. Envtl. Protection
49 H.R. 2580 §304(c); S. 1537 §301(b).
Agency).
50 H.R. 2580 §304(a); S. 1537 §301(b).
23 Pub. L. No 99-499, 100 Stat. 1613 (1986) (codified as amended at 42 U.S.C.
§§9601-9675 (2000)).
30 April 2001E N V I R O N M E N TA L L AW S E C T I O N | F E AT U R E S
51 See H.R. 2940, 106th Cong., 1st Sess. (1999) (sponsored by Rep. Stupak); H.R. Comm. on Commerce to Tim Fields, Assistant Administrator for Solid Waste
2956, 106th Cong., 1st Sess. (1999) (sponsored by Rep. Pallone); S. 1105, and Emergency Response, U.S. Envtl. Protection Agency, Oct. 19, 2000.
106th Cong. 1st Sess. (1999) (sponsored by Sen. Baucus).
88 Id.
52 H.R. 2940 §2(a); H.R. 2956 §901(a); S. 1105 §201.
89 In Waning Days of Session, EPA Floats Superfund Small Business Bill Without
53 See, e.g., S. 1105 §801 (“Examples of municipal solid waste include: food and White House Support, Inside EPA, Oct. 27, 2000 at 3.
yard waste, paper, clothing, appliances, consumer product packaging, dispos-
90 Id.
able diapers, office supplies, cosmetics, glass and metal food containers,
elementary or secondary school science laboratory waste and household 91 Draft legislation, Small Business Liability Protection Act, U.S. Envtl. Protection
waste . . . [It] does not include combustion ash generated by resource recov- Agency, Oct. 24, 2000.
ery facilities or municipal incinerators or waste material from manufacturing
or processing (including pollution control) operations that is not essentially 92 Inside EPA, supra note 90, at 3.
the same as waste normally generated by households”). 93 Hearing on the Confirmation of Christine Todd Whitman to be Administrator
54 H.R. 2940; H.R. 2956; S. 1105. of the U.S. Envtl. Protection Agency Before the Senate Comm. on Environment
and Public Works, 107th Cong., 1st Sess. (2001).
55 H.R. 2956 §901(a) (55 liquid gallons or 200 pounds of solid material); S. 1105
§201 (110 liquid gallons or 200 pounds of solid material).
56 Commerce Comm. Hearing (1999), supra note 21, at 159 (statement of Tim
Fields).
57 Id. at 167 (statement of Steve Herman).
58 Id.
59 Id. at 155 (statement of Jon P. Jennings, Acting Assistant Attorney General,
U.S. Dept. of Justice).
60 Id. at 278 (statement of Winston H. Hickox, Secretary, California Dept. of
Envtl. Protection).
61 Id. at 219 (statement of Jane Williams, Chair of the Waste Committee, Sierra
Club).
62 Id.
63 Transportation and Infrastructure Comm. Hearing (1997), supra note 19, at
163 (statement of Jacqueline Karen Florini, Senior Attorney, Environmental
Defense Fund).
64 Commerce. Comm. Hearing (1999), supra note 21, at 137 (statement of Rep.
Oxley).
65 Id.
66 Id.
67 Id. at 169.
68 S. 2634, §3.
69 H.R. 5715, 106th Cong., 2d Sess. (2000).
70 Id. §2.
71 Id.
72 Id.
73 Id.
74 Hearing on Superfund Liability Issues Before the House Comm. on
Transportation and Infrastructure, Subcomm. on Water Resources and
Environment, 105th Cong., 1st Sess. 423 (1997) (statement of Jacqueline
Hamilton, Senior Project Attorney, Natural Resources Defense Council).
75 146 Cong. Rec. H8125 (2000) (statement of Rep. Oxley).
76 Id.
77 146 Cong. Rec. H8123 (2000).
78 Standing Rules of the House of Representative, Clause 8, Rule XX (1999).
79 146 Cong. Rec. H8132 (2000) (Roll no. 494, Virginia members voting in favor:
Bliley, Davis, Goode, Goodlatte, Moran, Pickett, Sisisky, Wolf; members
against: Boucher, Scott).
80 See, e.g., 146 Cong. Rec. H8127 (2000) (statement of Rep. Towns).
81 146 Cong. Rec. H8125 (2000) (statement of Rep. Oxley).
82 Meredith Preston, House Republicans Request EPA Input On Small Business
Superfund Liability Relief, Daily Report for Executives, Oct. 4, 2000 at 1.
83 Id.
84 Hearing on The Role of the EPA Ombudsman in Addressing Concerns of Local
Communities, House Comm. on Commerce and House Comm. on
Transportation and Infrastructure, 106th Cong., 2d Sess. (2000).
85 Preston, at 1.
86 Id.
87 Letter from Rep. Michael G. Oxley, Chairman, Subcomm. on Finance and
Hazardous Materials, Comm. on Commerce and Rep. Tom Bliley, Chairman,
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