33 (v   ,std?  I   United States             Communications. Education,
         ^-»,«o  I/''     Environmental Protection      And Public Affairs
                       Agency                (A-107)
                       Note to Correspondents
  During a meeting on Oct. 4^ 1993,, draft discussion papers of the
  Superfund Subcommittee, National Advisory Committee on
  Environmental Policy and Technology (NACEPT), were presented to
  Administrator Carol Browner.
  The papers deal with five subjects which the NACEPT Superfund
  Subcommittee was asked to address:
I           - liability scheme    .
'            — remedy selection reform
            - state role in managing cleanup work
            - municipality liability reform                   —
  .,         - environmental justice/community issues         \
  These papers are strictly for discussion purposes and do not
  reflect NACEPT recommendations.
  The NACEPT subcommittee holds its next meeting on Nov. 8, 1993.
 ( The Subcommittee includes members from industry (large and small
  businesses), environmental organizations,  citizen activist groups
  (those concerned with community perspectives, including
  environmental justice), state and local governments and academia.
  For further information, contact Lauren Mical at 202-260-4358.
                                John Kasper
',-         '                      Director
                                Press Services Division

(   I      ••'.'•       ..

    m                      EPA Headquarters Library


To:        Administrator Carol Browner

From:      Snperfund Evaluation Committee, NACEPT

He:        Position Paper on Liability

Date:      October 4, 1993

     The attached memorandum summarizes the current views of NACEPT members
on Superfund's liability scheme. Although there is considerable consensus on a
number of points, several major issues remain unresolved. We intend to work during
the month of October to reach agreement on these issues.

                      NACEPT Positkm Paper on Liability
      NACEPT members share a variety of views on the merits of the current liability
scheme under Superfund.  Some members strongly support the current liability
system. Others members, while not favoring the current liability regime, are prepared
to accept this regime provided that key changes are made in the process of allocating
cleanup costs. Finally, some NACEPT members believe the current liability system is
fundamentally flawed and support more substantial changes.

      Against this backdrop of divergent views, the NACEPT Committee examined a
variety of issues surrounding the current liability system and proposed alternatives.
Specifically, die Committee focused on two alternatives that generated die most
interest among NACEPT members. Both are discussed in greater detail below.

      The first proposal would retain major elements of the current liability scheme,
but establish an allocation system to reduce transaction costs,  expedite settlement and
provide greater certainty for responsible parties. A key, and as yet unresolved,  issue
regarding this proposal is the role of the fund in paying for so-called "orphan11  shares
identified in the allocation process and-how^orphans" would  be defined.

      The second major proposal, introduced by NACEPT member Michael Soots on
behalf of furniture manufacturers (hereinafter referred to as the "Soots Proposal")
would ftimmat? current retroactive liability for waste which was legally disposed of at
multiparty sites prior to January 1, 1987.  It would provide proportional liability after
that date (coupled wim mandatory fund payment of orphan shares), and it would pay
for these changes through tax and fee increases on the business community.

      After carefully considering these two proposals and a number of variations and,
in spite of the considerable divergence of views among NACEPT members, a significant
majority of NACEPT members have expressed support for using an improved
allocation process to distribute costs among responsible parties, rather than pursuing
variations on the Soots proposal  Most NACEPT members believe that an improved
allocation scheme win reduce transactions costs, provide greater certainty, and, to the
extent additional mixed funding **ap be f**Ap available, provide greater fairness.
Although major issues remain, a majority of NACEPT members believe that an
allocation scheme offers the best prospect for meaningful reform.
                  does not evaluate approaches to municipal liability issues. AUxNigfa NACEPT
                         tn \ifitvfm apmmi liability a0d municipal liability issues* municipal
liability considerations are presented under a separate document.

      In addition, a significant majority of NACEPT members believe that special
efforts must be taken to address the concerns of de minimis contributors to
Superfund sites dirough die use of "cash-out" settlements, structured settlements, and
other measures. Specific recommendations are oudined below.

      Some NACEPT members do not believe an allocation process alone will provide
sufficient reform. These members fed strongly that elimination of retroactive liability
would substantially reduce transaction costs and make the liability system significandy
more fair.  However, elimination of retroactive liability for waste disposed of at multi-
party sites prior to January 1,1987 (or some other date) would require a substantial
increase in funding for cleanup. Major concerns focused primarily on the need and
support for additional taxes to finance this cleanup have convinced a substantial
majority of NACEPT members that, until a viable, assured funding source for such
cleanup can be found, the allocation alternative is the preferred approach. Additional
issues would also have to be addressed (see Evaluation of Options below).

NACEPT Recommendations on Allocation

      As indicated earlier, a majority of NACEPT members strongly supports using an
improved allocation scheme to address concerns with Superfund*s liability system. As
a result, much of our discussion over the past few mondis has focused on specific
aspects of this proposal Although several  major and minor issues remain unresolved
to date, we can ofler some recommendations at this point in our dialogue.  We hope
to ofler additional views as our work continues during the month of October. What
follows are our current perspectives:

      1. Orphan Definition and Orphan Shares.

      A critical unresolved issue in our discussions is the definition and role of the -
fund in defraying die costs attributable to so-called orphan shares. Some advocates of
the allocation approach believe strongly diat me fund should pay some or all of die
costs attributable to orphan share, but diere is consensus agreement diat funds must
be found to provide tfiese payments without lessening the ability of the program to
continue to folly finance cleanups. We intend to work during the month of October
on this key issue.

      2. Timing of an Allocation.

      NACEPT members support an allocation process as early in the Superftind
process as is feasible. NACEPT members recognize mat gathering data for allocations
may take some time, but we also believe diat responsible party searches can be
performed by bom the government and  identified responsible parties at a much
earlier stage in the Superfund process. .,     •       .

      In addition, NACEPT members believe that allocations can and should be made
as long as die available information is sufficient to provide a "rough" and fair

      3.  Reopening Allocations.

      NACEPT members believe that, in general, allocations should be final and that
only a very limited opportunity to reopen should be provided to responsible parties.
We recognize that some limited ability to reopen allocations might be warranted to
prevent substantial unfairness to the responsible parties.  In addition, we abo believe
that even a limited opportunity to reopen an allocation should have a fixed time limit
to guarantee finality of the allocation.

      4. Contribution Suits.

      NACEPT members recommend that the allocation process should be used in
lieu of existing contribution actions.

      5.  Allocator.

   -   Although some NACEPT members-recommend that administrative law Judges
perform the allocation, we recognize there may be potential problems with this
approach, including the time it may take for EPA to hire an adequate number of Aljs
to perform allocations and the potential delays  if AIJs fail to meet statutory or other
deadlines.  NACEPT members have also explored the use of private firms to perform
allocations, but again recognize several potential problems,  including the time it may
take to find the necessary individuals or firms, the expense of private allocators, the
need to ensure that they are assigned in a random manner to sites, the need to define
what capabilities they may need to have, and whether they will have sufficient
constitutional authority to make the allocation binding without further government

      NACEPT members believe that both approaches should be examined more
closely, and we intend to explore these issues in greater detail in subsequent

      6.  Appeals Jrom Allocation Decisions.

      NACEPT members believe that, although  responsible  parties should be given .
the right to appeal from adverse allocation decisions and/or determinations of
responsibility, such appeals should be limited and should cany stiff sanctions to the
extent they fafl to substantially alter the basic nature of the allocation. Specifically,
NACEPT supports a fairly high legal standard of review for any allocation decision.  In
addition, to the extent the result of an appeal leaves the allocation roughly the same,

NACEPT members recommend that EPA consider requiring the appealing party to pay
the attorneys' fees for all other parties, deny access to mixed funding, and/or require
other sanctions to discourage unmeritorious appeals.

      7. Procedural Elements of'the Allocation.

      NACEPT members support a simplified, informal process to achieve an
allocation.  We believe it would be counterproductive to the goal of reducing
transaction costs to replace the current rigors of third party litigation wfch a similarly
complex process to achieve allocations. We hope to work on more specific
recommendations to keep the allocation process simple and straightforward.
      & Non*settHng Parties.

      Any allocation process should assign cost shares to all parties,: whether or not
they participated in the allocation process. Assigned shares would be binding on such
parties and responsible parties who perform cleanup work or pay the government for
fund-financed cleanup should be provided with incentives to encourage all parties to
promptly reimburse the performing or paying party.

      9- Enforcement Authorities.                    .  ~     V
      Under current law, responsible parties are strictly and retroactively liable for
Superfund sites and can be compelled by  the government to perform 100 percent of
the cleanup work at Superfund sites, without regard to an allocated share of costs.
Having conducted a site cleanup, a responsible party can receive reimbursement for
their costs from other responsible parties through third party litigation.

      A majority of NACEPT members agree that the current strict and retroactive
liability of responsible parties to perform 100 percent of cleanup work at a site should
be preserved. Specifically, NACEPT members support the retention of the
government's authority under section 106 to compel one or more responsible parties
to perform 100 percent of a site cleanup, whether or not the allocated share of costs
to that party or parties is less than 100 percent. This authority would be preserved
before, during and after an allocation process and would be applicable to sealing and
non-settiing parties.  Parties who perform  deanup work would be entitled to recover
costs from other responsible parties based upon the allocation process and would be
provided with "bounty" provisions to encourage prompt payment by other private
parties.  To the extent we can reach an agreement on die handling of orphan shares, a
performing party would also be entitled to mixed funding payments from die
government for such shares.

      In addition, NACEPT members support a requirement that, as a precondition of
settlement,  the government may, in its discretion, require responsible parties to agree

to perform cleanup work at a site. We are continuing to discuss some issues involving
the procedures for performing parties to collect payments from other parties and the
value or need for Congress to provide nonbinding guidance to the government in
exercising its discretion to issue 106 orders.  Also under discussion is the impact, if
any, of an allocation scheme on other current enforcement authorities.  Some NACEPT
members would appreciate the views of EPA or the Department of Justice on this
latter point.

      10. Structured Settlements.

      NACEPT members recognize that many small businesses may be unable to pay
their share of cleanup costs in a lump sum payment  NACEPT recommends that EPA
explore options for providing structured settlements to these parties to the extent the
responsible party is unable to pay and to the extent that the structured settlement
includes all interest and administrative costs of providing the structured settlement
Structured settlements should be available to qualifying parties whether they are de
minimte or non-de tninimfg parties. *

NACEPT Rcconi mcnctattons on De Minimls Settlements
      NACEPT members believe that special-attention must be paid to the settle
issues surrounding de minimis parties. Specifically, we recommend the following:

      1.  Definition of DeMinanis.

      NACEPT members do not have a consensus recommendation on the definition
of de minimi* parties. However, options that should be considered include a
definition established by the allocator or a presumptive definition established by
statute that can be adjusted at the discretion of the allocator. We have also discussed
how so-called de micromis parties should be treated, but no consensus has yet
emerged from NACEPT members.

      2.  "Casb-out" Settlements.

      NACEPT members support providing de minimfc parties with an opportunity to
"cash out" as early in the Superfund process as possible.  We recognize tint allocations
may be made before reliable cleanup cost estimates are available, but we recommend
that EPA make a conservative estimate of cleanup costs as early as feasible, perhaps at
the RI/FS stage.  To protect other responsmle parties and the fund, de minimte parties
seeking to "cash out* at  this stage should be required to pay a substantial premium On
the group opinion, paying twice the best estimate of costs would not be
inappropriate) in ggphange for a complete release from liability and protection from
contribution actions. Acceptance of a "cash out" settlement should be completely
voluntary, with no penalty assessed any party who elected to pay its de minimis share

                                     >•-,'? •• f
as costs are incurred and no release from liability until the completion of the cleanup.
NACEPT members also are considering whether it may be appropriate to adjust the
premium downward over time as cost estimates become more reliable.
3. Non-settling De Minimis Parties.

NACEPT members believe that a de
                                             party who refuses to reach a
settlement with the government to "cash out" or refuses to agree to pay its share of
costs as they come due should be treated in die same manner as non-settling non-de
minimis parties (see paragraph 8 in die preceding section).

Evaluation of Options

      In order to provide me Environmental Protection Agency (EPA) wim some
sense of me analysis that went into our evaluation of me two principal liability
alternatives, NACEPT members believe thai it is worthwhile to briefly describe the
perceived pros and cons of each alternative, tte arguments presented for tbe Soots
proposal and against the allocation scheme were prepared by proponents of tbe
Soots proposal and do not necesessarify reflect the views of att NACEPT members.
Similarly, the arguments presented for the a/location proposal and against the Soots
proposal onfy reflect the views of those supporting the allocation proposal  No
attempt was made to reconcile tbe views below. Instead, we provide these
alternative views for tbe benefit of tbe Administrator.

Allocation Scheme.                          .

      Views of Allocation Scheme Advocates.

      1.    Could Expedite the Pace of Response.  The allocation approach will leave
            alone EPA's existing authority to take or compel remedial action and will
            speed up remedial action. By requiring "early on",  regularized PRP
            liability searches and data disclosure and liability determinations and
            allocations, PRP groups wffl be formed much earlier and the site "set up"
            for resolving how the remedy will be executed much earlier than under
            the current scheme.

      2.    Could More Fairly Allocate According to die "Polluter Pays" Principle. By
            requiring that each PHP's allocated share will be determined in a
            regularized, cost-effective manner, die allocation approach will more
            fairly assign responsibility for paying for each party's share, which will
            greatly encourage settlement early in die process and bring the largest
            number of parties to die table. Moreover, EPA will have a much better
            basis for fair PRP selection in bom compulsory remedial and cost
                very cases.

3.    Will Substantially Reduce Transaction Cost. By replacing the existing
      scheme for resolving allocation of PRP shares (de novo. district court
      contribution litigation at the end of the process) with an "upfront"
      allocation process, transactions costs will be reduced. Disputes over
      liability and allocation will be severely limited in time to die earlier stage
      of the site process and be circumscribed dirough carefully controlled
      administrative and arbitrative actions ramer dian in open-ended "fufl
      blown trial* court contribution cases.

4.    Will Not Require Massive New Taxes. The allocation scheme win not
      require massive new taxes, as would a "public works" program.  The
      administrative allocation scheme win be funded as "response costs*
      under existing law, so diat private PRPs pay direcdy for most of the
      effort.  To me extent that orphan shares are Fund-financed under this
      approach, me resulting impact on governmental funds is much lower
      dian a full public works approach.

Views of Soots Proposal Advocates.

1.    Transaction costs for die government are likely to increase, particularly if
     -administrative law judges are used to make me allocations.

2.    Transaction costs for PRPs and insurers would not be reduced.  If
      anything, PRP transaction costs would probably increase.

3. ,   Small business wfll not receive meaningful relief.  Small entities, who
      generally have litde or no documentary information on dieir involvement
      at waste sites and who are least able to afford adequate legal
      representation in the process, will continue to face die likelihood of
      baring to bear an undeserved portion of cleanup costs.

4.    The pace of cleanup is likely to be slower because of the need to gamer
      additional data to property allocate responsibility.

5.    Third-party contribution suits will continue, albeit under a different
      name, because PRPs wfll want to have as many parties present as
      possible before the allocation is made and because EPA will have an
      incentive to narrow die size of the orphan share.  In addition, me
      "bounty* provisions of the proposal wfll provide an even greater
      incentive to begm third-party suits.
                  *.              •
6.    Small businesses wfll face potential harm to dieir operations and ability
      to obtain financing if they are erroneously identified as a PRP based on
      "early" information.

      7.     Because retroactive liability is retained, economic redevelopment of old
                   cial and industrial sites will continue to be discouraged.

            Businesses will still be afraid they are "purchasing" Superfund liability if
            they acquire "old" land.

     8.     The fundamental unfairness of the current liability system will be
            perpetuated in holding parties responsible for practices engaged in years
            ago which were legal and acceptable at die time.

     9.     The orphan share created by the allocation scheme has not been defined
            and no source of funding has been proposed for me cleanup of the
            orphan share.

Soots Proposal .

     Views of Soots Proposal Advocates.

     1.     Transaction costs for all parties, including EPA, would be substantially
            reduced.  Virtually all litigation, including third-party suits, would be
            eliminated at old sites. EPA's transaction costs would be reduced to die
            same low level they are how at me 70 entirely orphan sites on the NFL

     2.     Future pollution would be deterred and incentives for sound waste
            management would be retained by continuing to apply die strict liability
            system prospectively.

     3.     The "polluter pays" principle would be retained for die cleanup of old,
            pre-1967 waste  by making the polluter pay through taxes instead of
            litigation. This  recognizes the fact mat virtually everyone has contributed
            to the hazardous waste problem. At me same time, me "polluter pays"
           principle would be retained in its present form for waste disposed of
           after 1986.

     4.    Cleanups could take place faster at old waste sites, since the need for
           litigation over liability, including third-party suits, would be eliminated.

     5.    The current law applies Supernind liability retroactively without regard
           to whether the waste involved was handled in compliance wim existing
           laws. This fundamental unfairness would be eliminated.

     6.    Proportional liability for waste disposed of after 1986 would be more fair
           than the current system, because parties would  be responsible for only
           me cleanup  of their own waste.

7.    The current liability system discourages redevelopment of old industrial
      sites due to fears by new business mat they may be "purchasing1'
      Superfund liability if they buy "old" land. This disincentive to economic
      redevelopment results in abandoned industrial sites and encourages the
      taking of more virgin land for new development. These unintended
      economic and ecological consequences of retroactive liability would be

Views of Allocation Scheme Advocates.

1.    No specific basis or rationales for increase in the tax base needed to
      support massive new Fund.  The Soots proposal predicts Fund
      expenditures at 12.5 billion/year or more than an 80 percent increase
      from current levels, coupled with only the condusory suggestion that
      mis win be raised through "taxes and fees primarily on the business
      community. . . involving a slight increase" of the EFT.  However, Soots
      does not explain specifically how mis can be accomplished.  Indeed, his
      proposal suggests that mere will be no increase in the present
      petrochemical feedstock tax, the Fund will lost the benefits of recovery of
      past EPA costs due to the newly exempted "retroactive share" and Soots1
      ^transition rule" would deplete the remaining tax base by offsetting
      credits for post-90 remediation expenses.

2.    .Abrogates "Polluter Fays" Principle in Most Circumstances. Soots
      proposes to exempt from liability all pre-1993 municipal landfill
      disposals, all pre-1967 industrial multi-party sites and all
      "owner/operators sites," unless a PRP caused a release dirough illegal acts
      or willful misconduct. This means that the vast majority of historic waste
      disposal will be exempted from CERCLA's liability scheme. As post-1987
      waste disposal is dosely regulated under RCRA and other laws, few
      industrial sites would fall under CERCLA according to Soots' scheme and
      public funds would essentially be the sole basis for a massive cleanup

3.    Will Create New Litigation For "megal/Wfflful Misconduct" Cases. The
      government and the few PRPs who are not dearly exempted will attempt
      to hold an others liable under the exemption to shift the burden of
      remediation funds. This wffl spawn a whole new round of complex,
      resource-intensive litigation over whether waste disposal over the past 40
      years was "fflegaT or involved Vfflful misconduct," similar to die existing
      insurance coverage battles over the terms of GCL policies.

4.    Will Remove Constraints on Cost Overruns by Severing the Link Between
      PRP Performance of Cleanup Work and Expenditures by the Fund..

                                 «.'₯ .iv,;-'«*•'•-•..-
            Currently, the large majority of response is performed by private PRPs   f
            who have every incentive to carefully manage the work and control costs.
            By shifting most response to the Fund-financed activity in EPA's hands,
            Soots' proposal would rfiminat** the "checks and balances" of the existing
            program to prevent cost overruns.

      5.    will Slow the Pace of Cleanup. By shifting the basis for response from
            private PRPs to me Fund for me great proportion of response to historic
            contamination, the Soots proposal will inevitably slow the pace of .
            cleanup. Hie Fund will be limited to die monies raised and
            appropriated by Congress on a periodic basis.  In particular, the removal
•*        .  program wffl be circumscribed because EPA cannot predict in the
            budgeting process what the full needs for removals will be two or three
            years ahead of time.

      6.    Win Deter Voluntary Cleanup.  Because parties with pre-1986 liability will
            have that liability excused by the Fund, mere are no incentives to come
            forward and volunteer to perform cleanup at sites not yet on the NFL.

      7.    Impact on State and Other Laws. Most Superfund sites are subject to
          * enforcement under state "Superfund*1 laws and odier laws (e.g-, Clean
            Water Act) providing strict, joint and several liability.  Will the trust fund
            override these authorities?

NACEPT 'Views on RecycHng

      One issue that arose in our discussions on liability was die differential
treatment under Superfund of the liability for certain generators of recycled and virgin
    -After several discussions of diis issue, mere seems to be consensus on die
following points:

      *     The Federal court interpretation that the sale of metal, paper, plastic,
            glass, textile or rubber materials for recycling, constitutes arranging for
            their treatment or disposal under section 107 creates a unique
            disincentive to recycling by making those materials subject to liability
            while exempting competing virgin materials.

      *     Creating a preference for the use of virgin materials over recycled
                   ki te rpptraf  *» *frf "hf**hTy "f «a«*y n»inimlMri«%fi and natural
            resource conservation.

      *     Waste generated by the recycling process should be subject to Superfund

      *     Application of liability should differentiate between the product and
            waste generated by recycling.

      *     Further clarification of what constitutes sham vs. legitimate recycling is

      *     Burning of material, even for the recovery of energy, is not recycling.

   ~~  (To make this distinction work, utane must be a way to distinguish between
recycling mat is environmentally acceptable - and preferable - and diat which is not.
In other words, how do you  encourage good recycling and discourage bad recycling.)

                          DISCUSSION DRAFT ON
                       REMEDY SELECTION REFORM

                             October 4,  1993
The following text summarizes major points of agreement and disagreement that
have emerged as a consequence of the NACEPT Superfund Remedy Selection
Subcommittee's discussions over the past two months. Areas of general
agreement among the subgroup members are indicated in bold; major areas in
which disagreements have emerged or further discussion is needed are indented
and in' ordinary type.

A New Approach

A more streamlined method for remedy selection that is protective of human health
and the environment is merited.  A national standard approach may be a viable
alternative to the current system. National standards would apply to  soil and
groundwater and would be based on the use of the site or resource and other site-
related factors decided upon pursuant to negotiated rulemaking.  Site-specific risk
assessment would be used where national standards do not apply.

      The environmental community strongly prefers national soil and
      groundwater standards which would be developed and applied at least
      to cleanups to unrestricted (residential) levels. While the
      environmental community views inclusion of a national standards
      approach in the statute as necessary for elimination for ARARs, the
      industrial community believes that ARARs should be eliminated under
      a site-specific risk assessment approach as well.

      The industrial community favors site-specific risk-based
      decisionmaking that would be based on a site-specific risk
      assessment, but has prepared an alternative draft proposal that
      attempts to detail how a national standards approach could work.
      Industry believes that MCLs should serve as the basis for cleanup of
      groundwater at point of use, a position with which the environmental
      community disagrees.

      State representatives prefer national soil standards based upon health
      protection to a stated risk level in residential and industrial land use
      scenarios, while reserving the option for state promulgation of soil
      standards.  For other land uses (e.g., agricultural, mining, parkland,
      etc.), similarly, national (health-based for domestic use) groundwater
      standards would  be established; MCLs may be helpful in this analysis

      but are not presumed to be the appropriate health-based standards.
      States would be free to establish standards for the protection of other
      beneficial uses of groundwater resources, with variances available
      from standards for site-specific characteristics by means of an
      approved formulaic process,  State representatives believe that if
      ARARs are replaced with soil and groundwater standards, other
      applicable environmental laws would need to continue to apply to
      provide protection of other environmental receptors.

      Currently, discussions are focusing on a formulaic approach whereby
      national standards would take into account site-specific factors that
      can be objectively measured, whose effects are well understood,
      where the variable has a significant impact on the numerical
      standards, and/or other factors decided upon pursuant to negotiated
      rulemaking. State and industry representatives believe variances
      should be available from the national standard to  account for site-
      specific characteristics.

Land Use

Remedy selection should be land-use based, conditional on resolving how future
land use  will be considered in this process.  Three types of land use should be
considered - residential, industrial, and "other uses" (/.•.. those uses that are not
residential or industrial). Legal vehicles to ensure that land use restrictions remain
in place in perpetuity, or that adequate protection will be provided under changed
circumstances, are needed to implement land-use based decisionmaking.

      The role of all levels of government, including local government, in
      this process needs further discussion. Beneficial  use classifications of
      other natural resources also should be determined by the appropriate
      level of government.

      State representatives believe that remedy selection should not be
      premised upon use of the land exclusively, but that current or
      reasonably projected future uses of other natural  resources impacted
      by the site should also be considered in remedy selection. The
      NACEPT Superfund Committee did not consider the relationship
      between remedy selection and natural resource damages because of
      time limitations, but the issue deserves consideration in other venues.

Risk Assessment .                ,-..,..

EPA's risk assessment methodologies need to be improved soon and periodically

      The industrial community's first priority in this process is
      establishment of realistic exposure scenarios based on current or
      currently planned land use, realistic actual or likely human exposure,
      and, to the maximum extent possible,  actual site data. The
      environmental community's first priority is that risk assessment
      consider persons with multiple exposures to other sources of
      contamination around the area of the Superfund site.

Remedy Selection Process

      Industry proposes, and states representatives are interested in
    .  discussing, the concept that the remedy selection process have two
      phases. Phase one would require remedial actions to meet the health
      standard and address urgently needed  protection of sensitive
      environmental receptors. Phase two would address non-urgent
      environmental concerns.

      The states would include technological feasibility, practicability and
      cost as  factors for consideration in remedy selection, along with
      factors such as permanence, actual and future uses of resources, and
      impact on the community.


Further discussion is needed to clarify  the important issue of cost in the remedy
selection process.

State Standards

Uniformly applied state standards for remediation sites should retain a role in
remedy selection, but that role must be clarified in light of the elimination of
ARARs and in relation to  national standards,  and in relation to the
delegation/authorization issues. Further discussion is warranted about the use of
more stringent state standards as well as state standards for protection of
land/resource uses not addressed by national standards.


      There is disagreement over how permanence and treatment
      preferences should be dealt with in the statute.  There is agreement
      that treatment may be appropriate for the most highly contaminated
      "hot spot" materials at a site.  However,  a mutually agreeable
      definition of "hot spots" remains to be determined. The group
      continues to work toward an understanding and potential agreement
      on this definition.

Technological Feasibility

Technological feasibility for cleanup situations such as DNAPLs which cannot be
cleaned up with existing available technology must be addressed.

      The industrial community believes that where institutional and
      engineering controls are sufficient to meet the health and
      environmental standards, they should be  considered on an equal
      footing with treatment options.  They also believe cost is a major
      factor in considering the availability of technology. The environmental
      community prefers .that technology be assessed as physically available
      or not - and that concerns about disproportionate costs be addressed


The group believes that further discussion of when groundwater treatment is and is
not required would be fruitful.


The statute should require appropriate monitoring and reporting requirements for
contained facilities,  and information should be publicly available.

      The environmental community wants more detailed and frequent
      monitoring and  reporting requirements and wants compliance to be .
      citizen suit enforceable. The industrial community prefers such
      vehicles as citizen petitions to EPA to address compliance problems.

Technology Operation

      There needs to  be further discussion on the need for performance and
      operation requirements for technologies employed as part of remedy
      selection at each site.

Demonstrated Control Measures

EPA should develop for types of sites with commonly encountered end well
understood characteristics (e.g.. municipei weste landfills, wood preserving
facilities) Demonstrated Control Measures sufficient to satisfy the remedial
standard.  The Demonstrated Control Meesures should be comprised of technology
and/or institutional and engineering controls that are effective, proven and


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                                                DISCUSSION DRAFT

                    •         Background

      There is general agreement that several problems exist with the current
  allocation of responsibilities between EPA and the states. The most serious of
  these problems is the cost, delay and excess use of scarce resources that
  results from both levels of government having major roles at most NPL sites.
  Other key issues include: (1) effective utilization of the combined state and
  federal workforce to maximize the number of cleanups; and recognizing that
  many sites not currently on the NPL need cleanup and that the CERCLA
  cleanup program is a long-term effort. There is also general agreement that
  state Superfund capabilities vary widely.

      The subcommittee agrees that to address these issues, changes should be
  made that would:

      •   designate a single managing agency for most sites;
      • .  focus on a larger universe of sites in determining which should be
         cleaned up under CERCLA;
      »   authorize states with adequate authority and resources to manage
         more cleanup work under CERCLA;
      *   help states build their capacity to manage CERCLA cleanups over
         time; and
      •   ensure that delegated or authorized states mniTitflin quality CERCLA
         cleanup programs.

     To accomplish these goals, the subcommittee recommends the process
  outlined below be considered. Where issues remain unanswered or there is
 ' disagreement about an approach, this fact is noted in the description.

                      State Authorization Track

     A dual-track approach for allowing states to manage sites (including
  making final decisions on remedies) is proposed. Under the first track, a state
  could request full authorization of the state program.  States would request
  authority to manage all CERCLA cleanups in the state including
  fund-financed sites. States with state Superfund laws similar to CERCLA and
  with fully-functioning Superfund cleanup programs could apply for
  authorization to manage all sites under their state law.


MM. flTTY.  GEN'S.  OFC.  Fax:6l2-297-dl93         Oct  4  '93   S-2d  •  P. 05/0?
   The authorization process could include convening a "stakeholders" panel that
   would make a recommendation to EPA on authorization of the state program.
   The final authorization decision would be made by EPA based on the
   stakeholders' recommendation and on the following factors:

       1.  Does the state have adequate personnel and adequate resources
          including funding to carry out the program?

      2.  Does the state have the legal authority to manage a responsible
          party-based cleanup program that can achieve similar results as EPA
          has under CERCLA?

      3.  Has the state committed to obtaining a level of responsible party
          cleanup similar to the level  achieved by EPA, and is there a
          demonstrated record of achieving this level of responsible party
          cleanup? (some believe that this could be a matter that might be
          subject to annual review, rather than initial program review.)

      4.  Will the program achieve an equivalent level of health and
          environmental protection including meeting any national cleanup
      5.  Will an equivalent level of public participation be provided under the
          state program.

      This analysis should be conducted in a manner that allows procedural
  flexibility as long as the goals of equivalent level of responsible party cleanup,
  equivalent environmental results and equivalent public participation are
  achieved. There is some concern about what the parameters of "procedural
  flexibility" would be. Therefore, more discussion is needed about the specifics
  of this idea.

                     Site by Site-Delegation Track

      The second track would involve site specific delegation of authority to
  states.  This track could be used for states with less developed or less
  comprehensive programs, or for states without the full range of authority in
  CERCLA.  However, even under this track,  states and EPA would be
  encouraged to work toward a program that would  qualify for full
  authorization. On this second track, EPA regions and their states would meet
  annually to discuss the CERCLA workload in each state.  Based on the
  analysis of state capacity and EPA capacity, sites would be divided between
  the state and the region.

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      The decision to assign a site would be based on whether the state has
   adequate personnel and resources to manage the site.  Past history in
   managing NPL and non-NPL sites could play an important role in this

      The state could pursue the cleanup under state law if state law provides
   authority equivalent to CERCLA. Bex the alternative, the state could request
   delegation of federal authority if state law is not adequate in the opinion of
   either EPA or the state. If a state decides to clean up a site using delegated
   federal federal authority, the state would be required to follow EPA's cleanup
   process, both substantively and procedural!/. (Note: Some have suggested
   that if any federal cleanup dollars including orphan share are used, the state
   would be required to follow the federal remedy selection process.)


      Under the proposal, the National Priorities List would be phased out (no
  new sites added) and replaced by two lists.  The first list would be a
  state-generated list of sites needing cleanup in the state. This list could be all
  inclusive (RCRA, UST, CERCLA) or only those sites where CERCLA will
  likely be the principal cleanup program.  The "work list" would be the basis for
  annual EPA-State program review and  assignment of sites to either EPA or
  the state. (One suggested approach would have this assignment process also
 • determine whether sites would best be remediated under CERCLA or under
  other  existing authorities.) This approach would more clearly recognize the
  fact that CERCLA now applies to non-NPL sites where hazardous substances
  have been disposed, but would clearly allocate responsibility for managing
  cleanup of these sites to one level of government.

      The NPL would be supplanted by a  "National Funding List" that would
  prioritize for federal funding for those sites at which responsible parties are
  unwilling or unable to conduct the cleanup. Sites would be ranked in a
  manner  similar to the existing program.  (Some have suggested ranking sites
  after the RI is completed. This approach might require additional funding for
  states to conduct more RIs.)

                             Federal Role

      Under the approach described above, the federal role is unlikely to change
  dramatically in the short term. Much of what is described under full
  authorization is being done in some states already (Minnesota, New Jersey)
  and many other  states (e.g., by coordinative agreement in Colorado) are
          gome NPL sites through a site-by-site decision-making process.

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   The key short-term savings would be on duplicative site review. At the same
   time, new federal resources might need to be dedicated to the authorization
   and delegation processes.

       Over the longer term, the expectation is that EPA would move to a
   support role in many, perhaps most states. (Additionally, EPA might be
   looked to for particular areas of specialty expertise not developed at state
   levels.) This support role includes setting national standards, technical
   assistance, guidance, R & D and information exchange. EPA would remain in
   an implementing role for states that had not yet developed substantial
   programs and for specialty sites.


      It is not anticipated that significant new federal dollars would be required
  under the approach described above. EPA would continue its CORE funding
  program. Some new funding and some reallocation of existing funding might
  be needed to help build capacity in some states. States would continue to
  contribute a share of cleanup costs (the 10 percent cost-share is not seen as a
  major obstacle unless new burdens occur as a result of mixed funding.
  However, significant concern remains about the state's financial obligation for
  0 & M). Site-specific funding for remedial actions would continue to be
  provided according to the priorities established by the "National Funding
  List."  Funding patterns for removal and emergency actions would not be
  expected to change significantly.


      Oversight of authorized programs and delegated responsibilities is a key
  issue. Several options were identified:

      •   EPA opt-in such as EPA's authority in reviewing permits under the
          Clean Water Act;
          program reviews by EPA such as occurs under programs like RCRA;
          program audits focused on capacity building;
          public performance reviews; and
          citizen suits against the states.

  There a strong feeling that a RCRA-type oversight is not the best approach to
  follow. There is also concern about whether an UST self-certification process
  is sufficient for CERCLA.

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      One middle ground for oversight that may be workable is a three-part
   approach. The first part is periodic stakeholders' review of the state program's
   performance.  This could be a public meeting convened by the EPA and the

      A second part of the oversight could be an annual program audit by EPA
   (perhaps with some peer review from other states).  The focus of the audit
   would be to identify areas of success and areas of concern with emphasis on
   strengthening the state's capabilities. The annual review could also  examine
   whether the level of RP cleanups were similar to the level achieved by EPA
   anjd whether adequate funding remains available in the state. The annual
   review would also take into account the results of the stakeholder meeting.

      Finally, some site-specific safeguards may be needed.  One option would
  be for EPA to intervene at a site if a citizen, a PRP or EPA itself has evidence
  that the remedy (Phase 1 - if a phased approach described by the remedy
  selection group is adopted) at a site is not likely to provide an equivalent level
  of protection to the federal program (a clearer call if there are national
  standards involved).  Under this scenario, EPA would notify the state of the
  suspected problem and give the state a short period of time to respond.  If a
  problem existed and was not corrected, EPA could take over the remedial

      Another option would be to allow citizen suits to be filed against the state
  if the state-selected remedy failed to meet a national cleanup standard. The
  citizen suit option was not discussed in detail and needs further work.

                          Voluntary Cleanup

      To facilitate voluntary cleanups and redevelopment of contaminated
  property, it is  important: (1) to have a government capability to  quickly
  review investigation and cleanup plane; and (2) to have a single government
  body deciding cleanup requirements. Several states have developed voluntary
  cleanup programs (many funded on a fee-for-services basis) to provide timely
  review of voluntary cleanup plans.  It may be helpful, though, to achieve the
  country's cleanup goals to encourage development of additional voluntary
  cleanup programs through providing "seed" or "start-up" money to states.

      For a non-responsible party, voluntary cleanups' finality is a critical issue.
  Many developers and financiers find sufficient comfort with a state "sign-off1
  on cleanups.  Some, though, are concerned about potential federal liability.

MM.  flTTY. GEN'S. OFC. ' Fax:612-297-4193
Get  4  '93
   One approach to resolve this problem would be to allow a fully-authorized
   state (see previous discussion) with a voluntary cleanup program to approve a
   cleanup for purposes of both state and federal law. Another approach would
   be for EPA to authorize state voluntary cleanup programs to approve cleanups
   for purposes of both state and federal law at least for non-priority sites.
   Authorization criteria might include:

       •   adequate personnel and resources;
       •   equivalent level of health and environmental protection; and
       •   adequate public participation.

     *" Voluntary cleanup programs may be a good area for EPA to experiment
   with different ways of working with states. Demonstration or pilot projects
   using a variety of approaches to promote state voluntary cleanup programs
   and the needed finality to encourage redevelopment of contaminated property
   could be utilized.                         ' '\

      Little time was available for discussion of the voluntary cleanup issue. It,
   therefore, needs further development and discussion.

                          DISCUSSION DRAFT ON
                      MUNICIPAL LIABILITY REFORM

                             October 4, 1993
Options considered:

      (1)    Municipal solid waste (MSW) (i.e., garbage and sewage sludge from
            public or private sources) excluded from Super-fund liability - not

      (2)    Provisions of Lautenberg bill: block on third party suits against MSW
            generators and transporters and municipality owners and operators,
            four per cent settlement cap on contribution of MSW generators and
            transporters, ability to pay test for settlements by municipality owners
            and operators -  environmentalists and local government preferred

      (3)    Complete public works program for all sites - rejected because EPA
            has excluded from consideration by NACEPT and subcommittee does
            not seek to change EPA's ground rules.

      (4)    Co-disposal site  public works program - tabled as requiring larger
            public funding than consistent with EPA's ground rules, also opposed
            by environmentalists.

      (5)    Proportional liability without special rules for MSW - tabled as
            insufficiently responsive to needs of local governments, small
            business, and citizen generators because emphasizes volume as key
            allocation factor.

      (6)    Proportional liability plus special rules for allocations involving MSW
            generators and transporters, separate ability to pay determination for
            municipalities, deterrents to third party suits - industry's preferred

      (7)    No change in current program - not viable.

Summary of positions:

      (A)    Industry, environmentalists, and local governments agree that options
            1, 3, 4, 5, and 7 are not viable options for comprehensive
            reauthorization legislation, and that comprehensive reauthorization
            legislation must include this topic.

      (B)    Industry, environmentalists, and local governments agree that creative
            use of in-kind services should be emphasized in settlements involving
            MSW sites and that deferred payment schedules keyed- to actual
            cleanup milestones may be appropriate once a determination has been
            made concerning ability to pay.

      (C)    Industry, environmentalists, and local governments agree that a
            numeric cap on the contribution to cleanup costs of MSW generators
            and transporters may be appropriate.

      (D)    Environmentalists and local governments believe that a numeric cap
            ("allocation by rule") of four per cent of total cleanup costs covering
            the total contribution of public and private MSW generators and
            transporters is an essential element of municipal liability reform, and
            that the adoption  of such an allocation represents  the full contribution
            of such parties without leaving any orphan share.

      (E)    Industry believes that the four per cent cap is arbitrary and that any
            uniform cut-off ("allocation by rule") will create an orphan share that
            varies site-by-site and must be paid by the general revenues portion of
            the fund because it reflects a problem society in general created by
            their generation of MSW.

      (F)    Industry, environmentalists, and local governments agree that
            municipal liability  reform must incorporate an "ability to pay"
            determination for  municipality owners and operators.

      (G)    Environmentalists and local governments believe that the ability to pay
            test must recognize the need for local governments to provide other
            essential public services and their consequent inability to pay large
            Superfund costs.

      (H)    Industry believes that the ability to pay of municipality owners and
            operators should be determined in a proceeding that follows the
            allocation process and that any shortfall in the threshold allocation
            remaining after the determination of ability to pay  should be allocated
            to the orphan share.

      (I)    Industry believes that the inability to pay of municipality owners and

      operators will create an orphan share that should be paid by the
      general revenues portion of the fund.

(J)    Industry believes that municipal liability reform should include the
      adoption of presumptive remedies for co-disposal sites and that any
      relief for MSW generators and transporters and municipality owners or
      operators should be limited  to current and future NPL sites only.

(K)    Environmentalists and local governments believe that only EPA should
      have the legal authority to prosecute under Superfund MSW
      generators and transporters and municipality owners and operators,
      with all other "third party" Superfund suits blocked.


      National  Advisory Committee on Environmental
              Policy and Technology (NACEPT)
                   Superfund  Subcommittee
    Environmental  Justice/Community Issues Subgroup

More than others,  this document must be viewed as a preliminary.
discussion draft reflecting incomplete discussion among both the
Committee and Subgroup.  Neither the full Committee nor the
Subcommittee feel that these issues have received sufficient
attention to warrant  finality.  Both will work over the next
month to detail more  fully the proposals put before the
Committee, and the extent and,nature of the issues on which we
agree and disagree.

This subgroup was charged with working on five distinct but
interrelated issues:

     •    Community Involvement/Empowerment

     •    Non-Discriminatory Implementation and Enforcement

     •    Economic Restoration/Security

     •    Redevelopment of Cleanup sites

     •    Community-wide Environmental Quality Approach
          (Including  synergistic effects of multiple source
          cleanup activities and risk tradeoffs in remedy

The subgroup has prepared a set of statements on each issue.  The
statements seek to reflect the level of agreement and.
disagreement on each  issue, as well as present strong minority
views where appropriate.

The Committee as a whole felt that the first two issues
(community involvement and non-discriminatory implementation and
enforcement) should be addressed as fully as possible within the
context of Superfund  reauthorization.  There was a strong feeling
that all of these issues would best be addressed through serious
demonstration projects involving new methods utilized on scales
appropriate for testing their effectiveness and feasibility.
Such demonstrations projects, if successfully implemented, have
the potential to substantially improve the Superfund program with
respect to the environmental and economic health of affected
communities,  the speed and acceptability of cleanups, and the
overall cost of the program.   :

Non-Discriminatory Implementation  and Enforcement
1.   Better data must be collected on environmental justice
     issues to enhance the process of designing and implementing
     reforms.   Thus,the Committee, as a whole, is in agreement
     there should be formal requirements that Superfund
     information systems collect and manage critical data on
     racial and socio-economic factors and conditions as they
     relate to hazardous waste cleanups.

     Over the next month, this subcommittee will further explore
     specific legislative implications and implementations of
     this proposal.  The central goal will be to ensure that the
     data are collected and used to ensure the overall fairness
     of Superfund.  Specific issues that will be examined will be
     the impact of such data collection on:

          environmental epidemiology in low-income and minority

          the costs and benefits of Superfund on these

          the timing of NPL listing of CERCLA sites;

          the Hazard Ranking System, particularly with respect to
          Native American populations and socio-economic groups
          facing multiple environmental burdens.
2.   The Committee also agreed that Superfund reauthorization
     should ensure that future enforcement and implementation be
     non-discriminatory, and that the Act be designed to ensure
     full compliance with relevant civil rights statutes.

     The subgroup is discussing and working on detailed
     legislative language for implementing this position.

     The subcommittee felt that such changes are particularly
important in light of the growing evidence that people of color
and low-income communities face a disproportionate burden of
environmental hazards.  The evidence uncovered by the National
Law Journal last year also points to significant questions about
the fairness of enforcement under the nation's hazardous waste

     One characteristic common to many communities of color,
particularly in urban areas, is the existence of multiple
hazardous sites as well as other sources of contamination.  They
are a major contributory factor, both direct and indirect,  to the

low health status, economic deterioration, environmental
degradation, and overall blight of host communities.  Logically
the concomitant concerns of multiple exposure and multiple risks,
and cumulative exposure and cumulative risks assume great
importance.  Some of these concerns are addressed in the
demonstration project approach outlined below.

Community Participation Reforms to  Superfund
     There is agreement that the  community  —  including  but  not
     limited to the residents surrounding a site,  the  local
     government impacted by cleanup  activity,  and  interested
     health and environmental professionals in the area  — should
     be more meaningfully involved in  the Superfund process.
     Opportunities for such involvement  should come as early as
     possible, for example before/during the site  listing, and
     continue throughout the site investigation, remedy
     selection, and cleanup steps.

     There is agreement that.resources,  both technical and
     financial, should be made more  directly available to the
     local citizenry to enable meaningful community participation
     and assure better information transfer and sharing.  Among
     the changes needed are refinements  in  the TAG program,

     •    Simplification of the TAG  application process  (e.g.,
          simpler forms,  broader  eligibility);

     •    Earlier TAG availability,  e.g., as soon  as a site  is
          identified,  so citizens can  participate  in
          investigations that may lead to the  site's listing;

     •    Fewer restrictions on grant  funds, including:
               give TAG recipient some flexibility to  use funds
               as needed (e.g., for  data collection, hiring
               technical support);
               remove or reduce matching funds requirement;
               remove or waive the $50,000  limit;
               authorize advance  payments;
               remove or waive time  limit on TAG availability;

     There is agreement on the advisability of community working
     groups.   The committee considered various options regarding
     how a group should be appointed and its functions.  On  how
     members should be appointed  (by federal/state vs. local
     authority), more discussion  is  needed,  but there  appears to
     be some consensus that a group  should  have local  government
     representation and also that the  group should be  open to
     committed community residents who wish to participate.
     Among the functions of such  a group:

     •    Review and influence key remedy selection decisions
          BEFORE the government or PRP have committed  major

     •    Participate in more frequent and  open meetings with the

          government and PRPs, acting as an official 'sounding
          board' for proposed decisions and actions;

     •    Act as a liaison to engage all sectors and members of
          the community, and be responsible to establish
          community preferences through public debate,  e.g., on
          decisions related to land use choices and public health
          protection assumptions;

     •    Develop and implement the Institutional Controls
          Program at the site, including legal, technical, and
          long-term maintenance issues, particularly as linked to
          the remedy selection;

4.   There is agreement that the community should have the
     ability to pursue its own agenda with a sense of integrity.
     Some Committee members believe that the role and purpose of
     a designated community working group (or TAG recipient,
     preferably one in the same) shall be formal and tangible,
     going beyond an "advisory role' to include a check-off or
     acceptance step.

     A role with some teeth would serve to sustain involvement
     and facilitate decision-making:  It would truly .engage
     people in the decisions, which helps to build consensus
     before actions are implemented, and places some of the
     responsibility for the decisions on the people most
     affected, thus removing some of the constant second-guessing
     by the community before/during/after decisions are made.

5.   There is no agreement on a proposal to create statewide
     Community Involvement and Action Offices.  There is
     agreement on the need to develop better mechanisms to
     address the proposed functions of such offices, i.e., to
     inform citizens and elected officials about Superfund
     activities through a variety of information dissemination
     and technical assistance tasks.

Notes to Community Involvement:   Issues for more discussion
1,   If the TAG program is refined and improved,  coupled with the
     creation of the community working groups,  it may be
     appropriate to seek mechanisms to ensure that the TAG
     recipient is1fully represented on the Board of the working

2.   A formal role for the community goes to the issue of where
     the "community acceptance1 criteria fits in the NCP
     hierarchy used to select remedies.   There is some support to
     elevate this criteria to a balancing (vs.  modifying)
     criteria, as per EPA's options paper (Level 3) and to give
     the community greater authority (Level 4).

3.   The working group could assume direct oversight
     responsibilities to review and monitor the implementation of
     the remedy, with a signoff authority.  More discussion is
     needed, but one minority view is to commit and allocate a
     percentage of the EPA oversight funds to the impacted
     community (either its working group or local government).
     This provision could be coupled with an annual CAP on
     oversight funds per site to ensure this transfer of funds
     (and responsibility) does not result in an increase of
     oversight costs.

Economic Restoration/Security/Redevelopment:

     The subgroup acknowledges that the Superfund Program cannot
shoulder the full burden of serious economic restoration/security
problems in the nation.  At the same time, several Committee
members believe strongly that, 1) the Superfund program should
not create additional impediments to economic
restoration/security, 2) the Superfund program should be a
catalyst for economic restoration/security and a strong
contributing component in a comprehensive, integrated approach to
economic restoration/security in depressed areas with hazardous
waste problems.
     The program's economic problems can be characterized by
those that are community-specific, involving the communities
surrounding contaminated sites, and those that are programmatic,
involving the impacts of the program as a whole on a wide
universe of sites that have either been identified as
contaminated, or are under the cloud of potential future findings
of contamination (e.g. the CERCLIS list and beyond).   In general,
we characterize the former set of problems as being those of
community-specific economic restoration/security, and the latter
as being programmatic barriers to site re-development and re-use.
(There is obviously some overlap between the two, and with other
issues covered in this document.)

Economic Restoration/Security (community-specific

     The subcommittee believes that Superfund should undertake a
National Model Demonstration Program consisting of pilot projects
to use Superfund and any other authority (see below)  as catalysts
for a comprehensive set of activities to achieve several
benefits, including:

          community empowerment
          meaningful community participation
          job training and educational infrastructure development
          job creation and economic redevelopment
     ~-'•   effective partnerships between a wide range of public
          and private institutions
          overall risk reduction
          sustainable community development

These projects will seek to demonstrate the viability of Federal
interagency and intergovernmental cooperation and are to be
achieved through an integrated approach.
(Other authorities: the Environmental Justice Act, the DOD Base
Closure Program, DOE's Environmental Restoration and Research

Programs, the National Voluntary Service - VISTA - program.)

     There was agreement that the issue of Superfund's role in
economic redevelopment should be addressed in Superfund
reauthorization through demonstration projects.  These projects
should include means to attract business to former Superfund
sites, means to speed the remedial process and make it more
responsive to the needs of the affected community, means to
maximize local employment and training opportunities in this
process, and means to use local schools and colleges for
communications outreach and training, where possible.

Please refer to Attachment #1 for a list of suggested objectives
that would accompany the model demonstration projects.
            svelopment (ore
ttic  demonstrations);
     The subcommittee is further discussing, but has not reached
consensus on, a programmatic demonstration program that would
seek to test models for removing economic barriers faced by
communities and speeding the cleanup of contaminated sites and
their re-entry into the pool of lands available for use by
communities.  As with the community-specific demonstrations, such
programmatic demonstrations must be designed to be evaluated and,
if successful, integrated into the broader Superfund program.
They are programmatic because they explore the feasibility and
effectiveness of substantial changes to the program's broader
legal and regulatory impact.  Unlike the community-specific
demonstration program proposed above, they cannot be evaluated
fairly on a community by community basis.   This concept is also
being further elaborated in the context of the State and Local
Governments subcommittee and their approaches to voluntary

     Potential targets for this demonstration program would

          liability waivers for future purchasers, lenders, and
          insurers on sites that meet certain criteria (cleanup
          standards, risk, proposed use, etc...) in order to
          expedite voluntary site assessments and remediations;

          full EPA delegation to states or local authorities of
          the right to "sign-off" on voluntary cleanups proposed
          by various parties;

          alternative allocation and cost-share schemes, and
          alternative cost recovery methods.

     Such demonstrations must proceed sensitively to avoid
involving the community in tradeoffs between economic goods and


environmental goals.  These demonstrations could clearly not be
tested on an anecdotal basis.  Those selected would need to apply
to a fairly broad geographic area (an EPA region, or a state) to
evaluate their effects.

Community-Wide Environmental Quality Approach
(also community-specific):

     The subcommittee is also discussing  a  range of options for
addressing the management of the multiple environmental hazards
faced in some communities.  (Some of  these  are covered under the
economic restoration/security/community-specific demonstration
program discussed above.)  Again, the Committee felt that
responses to such problems should be  explored through
demonstration projects,  as well as through  careful examination of
other statutory authorities available to  EPA for addressing them.
The subcommittee is discussing demonstration projects that would

          synergistic effects,  either by  integrating multi-media,
          multi-site data into site evaluation criteria/ or by
          ensuring that  such sites are examined under the lens of
          multiple environmental statutes;

          multiple sites in one community/multiple non-superfund
        .  sources of contamination through  some form of
          coordinated cleanup action;

          the remediation of environmental  risks adjacent to or
          concurrent with those posed by  a  Superfund site, but
          not covered under proposed  remedies.  This option will
          explore the possible use of some  cleanup monies for
          remediating such additional risk.

Other Issues:

     Finally, the subcommittee is interested in understanding the
possible impacts of reauthorization on the  roles of ATSDR, the
right-to-know provisions, and the toxic release inventory.


The following is a list of suggested objectives of such projects from Charles Lee's proposal.
At this time, they are meant to be illustrative and the Environmental Justice/Community Issues
Work Group will continue to work to provide greater organization and clarity to them. These
objectives may be:                                             ,

  -    to develop strategies for site specific cleanup or combinations of site specific
       cleanups which address issues of cumulative exposure and overall risk reduction
       in environmental high impact areas.

       to demonstrate the effectiveness and benefits of linking environmental cleanup
       and other environmental protection activity to a full range of other public goals,
       including job creation, educational infrastructural  development, community
       development in cooperation with a wide range of public and private institutions
       (city and county government, community based organizations, labor, civil
       organizations, churches, philanthropy, business, etc.).

      to demonstrate the feasibility  of timely, cooperative action among Federal

      to demonstrate the feasibility and benefits of  fundamentally new methods of
      effective  public outreach and involvement of affected stakeholders in reaching
      consensus around environmental decisions.

      to foster  working relations between government,  labor, business,  and the
      nonprofit  sector  in  solving  the  environmental  ills  of a  community  and
      impediments to economic redevelopment.

 -    to identify mechanisms by which overall risk reduction can be achieved in
      highly impacted, multiple risk communities.

 —    to identify and support mechanisms present in communities which can provide
      trusted liaison between public and private groups by  ensuring community
      empowerment and provide a mechanism  for information  to be processed,
      disseminated, and acted upon.

 ~    to identify and foster mechanisms for participatory research in conjunction with
      members of affected communities for the purposes of site identification, hazard
      assessment,  and  the development of site inventories, technical  and  medical
      databases, and other information.

-   to offer regular community based forums, workshops, and other venues for
     interactive information exchange.

     to aid in making connections between training for environmental careers, job
     opportunity, contaminated land cleanup and reuse, and the coordination of public
     and private programs to foster infirastructural support of such development.

     to demonstrate the viability of redevelopment or reuse of abandoned sites.

     to link defense  industry conversion efforts, especially the use of technical
     expertise and resources resident within national research laboratories and other
     Federal facilities to economic and environmental needs of urban communities.

     to encourage the  development of  locally based economic development
     corporations in the areas of urban site restoration, waste recycling, energy
     conservation, new business development, and education.

     to make use of the facilities of locally based educational institutions, especially
     Historically  Black Colleges and Universities (HBCU's), minority academic
     institutions,  and community colleges, as the preferred mechanism to retain
     within the community the increased knowledge and skill base obtained from
     cleanup projects. This is to be  accomplished through  innovative  community
     based pilot programs.

     to provide support to activist oriented research centers based in the local
     community made up of consortia of academic institutions, public schools, labor,
     small business, churches, civil rights  organizations,  community  based
     organizations and community  development corporations where the technical
     expertise and knowledge base gained from various cooperative arrangements is
     retained within the community and wbere every idea, every hopeful experiment
     is warmly received, obtains critical technical support and thorough examination,
     and where every success, big or little, can be documented,  promoted, and

     to establish mechanisms such  as  symposia, workshops,  conferences and
     telecommunications networks which provide  links between projects in various
     areas to promote an interchange  of ideas.

—   to encourage the development  of environmental curricula in primary and
     secondary schools which can provide an important pipeline for diversification
     of the  environmental, workforce, and  be  a  vehicle  to promote real life
     experiences  to understand the science,  technology,  and social values issues
     inherent in environmental policy making and choices.  .

—    to provide opportunities for voluntary service through linkages with the National
      Voluntary Service Act.

—    to enlist youth, through active participation, especially in cultural activities to
      express  for  us a sense of their  reality and their visions for a humane and
      sustainable urban environment.

—    to  give  support  to  local  reuse  initiatives by assuring that safeguards be
      established to  remove the  regulatory uncertainty associated of contaminated
      properties and encourage the use  of voluntary cleanup.

-    to establish a national commission to oversee and ensure public accountability
      for the conduct of demonstration projects.

—    to sponsor a conference in conjunction with affected communities and relevant
      stakeholders to synthesize the lessons of the demonstration projects and give
      them visibility.

-    to make  an annual report to Congress regarding progress in this initiative.