4.1 Preamble

Since Congress enacted in 1980 the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), better known as Superfund, America has made considerable progress in remediating thousands of toxic waste sites and in accelerating the return of contaminated property to productive use. Federal and state cleanup programs have matured considerably during this period. It is imperative that Congress recognize that the Superfund and the state cleanup programs play critical and complementary roles in a successful overall national approach to contaminated sites. While most cleanup work underway is occurring under state programs, a strong, well-funded Superfund program is crucial to ensure the continued success of the states’ programs and provides a place for those few sites that require greater technical, legal and financial resources than the states can provide. Congress should recognize changes to CERCLA will impact not just the National Priority List (NPL) program but cleanup work moving forward at the state level as well. Additionally, the U.S. Environmental Protection Agency (EPA) should carefully review any potential negative impact on state Superfund programs when adopting regulations even in non-Superfund media. For instance, EPA promulgated a new definition of solid waste under the Resource Conservation and Recovery Act (Definition of Solid Waste Final Rule) that, should a state adopt, would decrease state revenues from fees on hazardous waste generators that often fund state Superfund programs. While this rule will likely result in more recycling of hazardous waste, an objective all states support, it could also result in more stress on state Superfund budgets. Therefore, governors strongly believe that changes to CERCLA, and other programs like the Resource Conservation and Recovery Act (RCRA), should complement and must not jeopardize the continued effectiveness of state Superfund programs. Governors look forward to participating in this process and to playing a major role in the implementation of the national hazardous waste site cleanup effort.

4.2 Liability

The liability scheme employed in any hazardous waste cleanup program is critical to the success of that program. The current CERCLA liability scheme serves some purposes well. Its effectiveness at encouraging better waste management is beyond dispute and it has provided resources for waste site cleanups.

In practice, many responsible parties have participated in state voluntary cleanup programs and performed site cleanups under state oversight primarily because of the liability scheme under CERCLA. Governors urge the Administration and Congress to continue an effective liability scheme and enforcement process that creates a strong incentive for parties to perform voluntary cleanups under state oversight. The “bona fide prospective purchaser” and innocent landowner defenses to liability in CERCLA offer new opportunities for cleanup and sustainable redevelopment of “brownfield” properties that is important in creating jobs and saving greenspace in communities across the country.

4.3 State Program Grants

Governors believe that Superfund cleanup will be faster and more effective if states have adequate capacity to plan and implement the program. To maintain and further develop state capacity, the Superfund Trust Fund should be used to support grants to states for program development, site identification and assessment, enforcement, site remediation, oversight, and administrative expenses at all sites. Significant reductions in Superfund funding have placed some states in jeopardy of sustaining adequate personnel levels. Governors believe that, at a minimum, current funding levels for state program grants should be returned to FY 2004 levels in future Superfund budgets.

4.4 Operation and Maintenance Expenses

CERCLA should be clarified to provide that the response trust fund can be used to support operation and maintenance activities for as long as is necessary. It should be clear that these expenditures are subject to the same state match requirements as cleanup actions.

4.5 Natural Resource Damage Claims

The natural resource damage provisions of CERCLA allow federal, state, and tribal natural resource trustees to require the restoration of natural resources injured, lost, or destroyed as the result of a release of hazardous substances into the environment. Governors believe this is an important program that must be maintained. Governors urge Congress to strengthen the program by establishing a clear definition of when a natural resource damage assessment is complete. Congress must also amend the statute of limitations to run three years from completion of a damage assessment; removing the prohibition on funding natural resource damage assessments from Superfund; and providing for judicial review of trustee decisions on the administrative record, subject to the arbitrary and capricious standard. Further, governors urge Congress to resist efforts to weaken the program by capping liability for natural resource damages at some level per site or eliminating compensation for non-use values.

4.6 Federal Facilities

Governors continue to support legislation that ensures a strong state role in the oversight of federal facility cleanups. Federal facilities and former federal facilities are among the worst contaminated sites in the nation due to a historical lack of regulatory oversight at these sites. The double standard of separate rules applying to private citizens and the federal government continues to have a detrimental effect on public confidence in government at all levels. Federal facilities should be held to the same standard of compliance as other parties. Lack of funding has hampered and delayed cleanup actions required in Federal Facility Agreements for many federal facilities including U.S. Department of Energy (DOE) projects. Federal funding should be a priority for performing corrective action on federal facilities, especially for DOE sites across the nation.

Because EPA cannot effectively enforce CERCLA, or any other environmental statute against other federal agencies, it is critical that states have clear authority to do so. Therefore, governors urge Congress to authorize states to require and oversee response activities at federal facilities, including former federal facilities. Additionally, it should allow for adequate and stable funding that provides states with the necessary resources to accomplish all regulatory oversight functions at federal facilities as deemed necessary by the states.

In virtually every other environmental statute, Congress has waived sovereign immunity and allowed qualified states to enforce state environmental laws at federal facilities. Such authority has been provided in the Clean Water Act, the Clean Air Act, and the Resource Conservation and Recovery Act. When the Federal Facility Compliance Act was enacted in 1992, Congress once again confirmed its commitment to state enforcement of environmental laws at federal facilities. Governors urge Congress to provide states this authority under CERCLA.

4.7 National Priorities List

The NPL should be used to facilitate the cleanup of contaminated sites and to protect human health and the environment. Governors should be given the statutory right to concur with the listing of any new NPL sites in their states and should have approval over annual budgets and cleanup plans for such sites. Governors are concerned about proposals to legislatively or administratively cap or limit the NPL because of differences in capacities among states, the complexity and cost of some cleanups, the availability of responsible parties, enforcement considerations, and other factors. There must be a continuing federal commitment to clean up sites under such circumstances. Emphasis should be on prioritizing cleanup fund expenditures to provide the greatest human health and environmental benefits. In the event EPA discovers an imminent and substantial threat to human health and the environment, it may continue to use its emergency removal authority, but any assignment of liability must be consistent with liability assigned under state cleanup laws.

The NPL also should be recognized as a potential obstacle to property redevelopment. Properties within NPL sites (contaminated or not) are closely scrutinized by potential purchasers and financial institutions, and are often avoided by potential developers. Also, properties within NPL sites are not eligible for brownfields funding—often the only available source of funding to support property reuse. NPL site boundaries sometimes include uncontaminated properties that do not require remediation under Superfund. In those cases, EPA should streamline the NPL site delisting and partial delisting process where such actions could remove obstacles to property redevelopment and reuse.

EPA also should update the Hazard Ranking System (HRS). Currently, the HRS fails to account for vapor intrusion and unexploded ordnance (UXO) pathways, which are of great concern to states nationwide. As the HRS is the primary screening tool in determining whether a site is to be included on the NPL, these pathways need to be included in the HRS scoring methodology.

4.8 Superfund Trust Fund

The Superfund Trust Fund is used to pay for cleanups at sites for which no responsible party can be held liable. Historically, three dedicated taxes (petroleum, chemical feedstocks, and the corporate environmental income tax) made up the majority of the Superfund Trust Fund’s income. With the expiration of the taxes in 1995, and the gradual depletion of the trust fund, Congress has annually appropriated funding for cleanup programs out of general revenues. Superfund appropriations have remained relatively constant over the past several years at $1.3 billion per year.

Studies project that Superfund cleanups and their costs may continue to grow far into the future. EPA acknowledges that for each of the last several years there are sites on the NPL ready to start cleanup for which no funds are available. EPA and Congress should appropriate enough funding so that all appropriate sites are cleaned up and human health and the environment are protected. Governors will support such funding provided that it is not drawn from other federally supported state environmental programs. Additionally Congress should authorize a study of ways to reduce the costs of such cleanups and eliminate unnecessary spending and waste. States often conduct similar remediation efforts at much lower costs.

4.9 Brownfields

The Brownfields Revitalization Act of 2002 (Brownfields Act) has successfully accelerated the cleanup and redevelopment of brownfield sites across the nation. Governors support reauthorization of the Brownfields Act so that hundreds of thousands of other contaminated brownfield sites can be returned to productive use.

The success of the brownfields program has been limited, however, by inadequate funding. For example, EPA has been able to fund only about one-third of the applications it receives for brownfield grants each year. Full funding of the brownfields program would enable more properties to be assessed, remediated, and redeveloped, which in turn creates jobs, generates additional tax revenues, and stimulates neighborhood revitalization. To complement EPA’s cleanup efforts, Congress should also fully fund brownfield redevelopment efforts conducted by the U.S. Department of Housing and Urban Development Brownfields Economic Development Initiative and the U.S. Department of Commerce Economic Development Administration.

Governors also support efforts to use the tax code to stimulate much needed private investment in revitalization projects. For example, Congress should make permanent the current brownfields cleanup tax expensing program.

Unlike virtually all other federal grant programs, the Brownfields Act does not allow local government and non-profit organizations to use a portion of grant funds to cover reasonable administrative costs. This prohibition has limited the effectiveness of the program by making it difficult for local governments to establish and maintain brownfield assessment and cleanup programs. The governors would support the removal of this prohibition. Further, governors would support the use of brownfields funds for redevelopment of already remediated properties within communities on the NPL, to the extent brownfields funding levels are adequate to meet non-CERCLA needs in communities. Use of brownfields funds for this purpose should occur only after a state has exhausted all PRP funds to the extent practicable.

4.10 Underground Storage Tanks

As part of the Energy Policy Act of 2005, Congress adopted several significant reforms to the Leaking Underground Storage Tank program. Many of these provisions impose expensive new requirements on states, such as more frequent mandatory inspections, without providing the necessary resources. Governors call on Congress to significantly increase annual appropriations from the existing balance of the Underground Storage Tank Trust Fund so that states have the resources needed to achieve the objectives of the new provisions.

4.11 Management of Electronic Waste

Discarded computers, televisions, and other electronic waste are the fastest growing form of consumer waste in the United States, with an estimated 220 tons generated each year. Some of the waste contains toxins that are harmful if released into the environment, such as lead, mercury, and cadmium. Proper end-of-life electronic management is important to minimize potential public health concerns and to maximize the economically efficient reuse and recycling of these materials.

A number of states have demonstrated leadership by enacting their own laws to better manage electronic waste. However, these differing laws and regulations create significant costs to manufacturers and may confuse consumers. Governors therefore support a unified approach to incentivize greater collection and recycling of electronic waste and to avoid a patchwork of inconsistent laws and regulations.

4.12 Renewable Energy Development at Contaminated Sites

Contaminated properties are frequently well suited for reuse as generators of alternative energy (e.g. wind, solar or biomass). These sites offer existing infrastructure and transmission capacity and, in many cases, would not otherwise be redeveloped due to market conditions or contamination that is too widespread or costly to clean up for other land uses. Reuse of contaminated sites also preserves undeveloped land. This strategy is an efficient way to increase domestic energy security and benefit local economies. Governors support the encouragement of renewable energy at contaminated sites.

Time limited (effective Winter Meeting 2009–Winter Meeting 2011).
Adopted Annual Meeting 1993; revised Annual Meeting 1995 and Winter Meeting 1997; reaffirmed Winter Meeting 1999 and Winter Meeting 2001; revised Winter Meeting 2003, Winter Meeting 2005, Winter Meeting 2007, and Winter Meeting 2009.