TESTIMONY ON PROPOSED OIL, HAZARDOUS SUBSTANCE AND HAZARDOUS WASTE RESPONSE, LIABILITY AND COMPENSATION LEGISLATION S. 684, S. 953, S. 1325, S. 1341 AND S. 1480
790720
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 003 OF 13
STEWART S
NATIONAL ADVISORY COMMITTEE ON OCEANS AND ATMOSPHERE
U.S. SENATE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS SUBCOMMITTEES
ON RESOURCE PROTECTION AND ENVIRONMENTAL POLLUTION
104532
HEARINGS
SENATE
AND HAZARDOUS WASTE DISPOSAL SITES
WE THINK IT REACHES TOO FAR. OUR OVERRIDING CONCERN IS THAT THE
MAGNITUDE OF THE HAZARDOUS WASTE DISPOSAL SITE PROBLEM IS SO GREAT,
PERHAPS ONE OR TWO ORDERS OF MAGNITUDE GREATER THAN THAT OF OIL AND
HAZARDOUS SUBSTANCE SPILLS, THAT A SINGLE MANAGING ORGANIZATION FOR ALL
THREE PROBLEM AREAS WOULD BE OVER-EXTENDED. FOR EXAMPLE, THE PROPOSED
RULEMAKING ON NATURAL RESOURCE DAMAGE ASSESSMENT PROVIDES TWO YEARS TO
PRODUCE THE FIRST SET OF GUIDELINES. IN AN ORGANIZATION ALSO CHARGED
WITH TRYING TO CLEAN UP 2,000 ABANDONED HAZARDOUS WASTE SITES --
LITERALLY THE SINS OF THE PAST FORTY YEARS -- THE BUSINESS OF
FORMULATING DAMAGE ASSESSMENT GUIDELINES WOULD TAKE A BACK SEAT.
THE DIFFERENCE IN MAGNITUDES OF THE OIL AND HAZARDOUS MATERIALS
PROBLEMS IS EVIDENT FROM THE TREMENDOUS DIFFERENCE IN FEES ON CRUDE OIL
AND ON PETROCHEMICAL FEEDSTOCKS, YET THE TOTAL AMOUNTS TO BE COLLECTED
FROM EACH SOURCE ANNUALLY, AT LEAST IN S. 1341, DIFFERS ONLY BY A FACTOR
OF TWO. AN OBVIOUS, AND UNSATISFACTORY, CONCLUSION IS THAT THE MONEY
RAISED BY THE FEE ON OIL IS INTENDED TO ASSIST IN FINANCING THE CLEANUP
OF UNCONTROLLED HAZARDOUS WASTE SITES. THE TWO PROBLEMS ARE DISTINCTLY
DIFFERENT AND INVOLVE DIFFERENT INDUSTRIES. THE INCOME AND EXPENSES
RELATED TO OIL SPILLS SHOULD BE SEGREGATED FROM THOSE RELATED TO
HAZARDOUS SUBSTANCE AND HAZARDOUS WASTE ACTIVITIES. FURTHERMORE, THE
MANAGEMENT OF SPILL RESPONSE AND COMPENSATION SHOULD BE SEPARATE FROM
THE MANAGEMENT OF UNCONTROLLED HAZARDOUS WASTE SITE ACTIVITIES. WE
FAVOR A SEPARATE OIL SPILL BILL, FOR WHICH WE WOULD BE PREPARED TO
SUBMIT MORE DETAILED RECOMMENDATIONS AT A LATER DATE.
TESTIMONY ON PROPOSED OIL, HAZARDOUS SUBSTANCE AND HAZARDOUS WASTE RESPONSE, LIABILITY AND COMPENSATION LEGISLATION S. 684, S. 953, S. 1325, S. 1341 AND S. 1480
790720
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 004 OF 13
STEWART S
NATIONAL ADVISORY COMMITTEE ON OCEANS AND ATMOSPHERE
U.S. SENATE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS SUBCOMMITTEES
ON RESOURCE PROTECTION AND ENVIRONMENTAL POLLUTION
104533
HEARINGS
SENATE
SUCH A BILL SHOULD INCLUDE A FEEMECHANISM THAT WOULD CREATE A $200
MILLION FUND OVER THREE YEARS, AND SHOULD PLACE MANAGEMENT
RESPONSIBILITY FOR OIL SPILL LIABILITY AND COMPENSATION WITH THE
SECRETARY OF TRANSPORTATION. THE $200 MILLION THAT WOULD BE LOST EACH
YEAR FROM THE ADMINISTRATION'S PROPOSAL BY SEPARATING OIL FROM HAZARDOUS
MATERIALS COULD BE RESTORED BY AN INCREASE IN THE FEES COLLECTED ON
CHEMICAL FEEDSTOCKS OR BY AN INCREASE IN FUNDS FROM GENERAL
APPROPRIATIONS, OR BY SOME REASONABLE COMBINATION OF BOTH.
FINALLY, WE BELIEVE THAT THE IDEAS CONTAINED IN RECENT OIL-ONLY
LEGISLATION HAVE BEEN CONSIDERED LONGER, AND ARE MUCH BETTER DEVELOPED,
THAN THOSE IN THE ADMINISTRATION'S PROPOSAL TO DEAL WITH HAZARDOUS WASTE
DISPOSAL SITES. WE SEE NO REASON TO CONTINUE HOLDING AN OIL SPILL BILL
"HOSTAGE" IN ORDER TO GET A HAZARDOUS WASTES BILL THROUGH CONGRESS.
HAZARDOUS WASTES LEGISLATION STILL HAS A LONG WAY TO GO. OVER THE NEXT
SEVERAL WEEKS, OIL FROM THE BAY OF CAMPECHE BLOWOUT MAY WELL IMPACT THE
ENTIRE GULF COAST, AND COULD POSSIBLY INTERFERE WITH COMMERCIAL FISHING
AND RECREATION FOR UP TO THREE MONTHS. IF THE SUPERFUND BILL WERE
PASSED, PERSONS AFFECTED BY THAT SPILL WOULD HAVE A SOURCE OF
COMPENSATION. WE BELIEVE THAT CONGRESS SHOULD DEAL WITH OIL AND
HAZARDOUS WASTES CONCURRENTLY, AND PASS EACH BILL WHEN IT IS READY. OIL
SPILL LEGISLATION IS READY NOW.
ALTHOUGH WE RECOMMEND SEPARATION OF THE OIL SPILL PROBLEM FROM SPILLS
OF HAZARDOUS SUBSTANCES AND RELEASES FROM HAZARDOUS WASTE SITES, WE HAVE
A NUMBER OF RECOMMENDATIONS TO MAKE IN BOTH AREAS, SOME OF WHICH ARE
COMMON TO BOTH OIL AND HAZARDOUS SUBSTANCES, AND OTHER WHICH ARE MORE
SPECIFIC IN NATURE.
TESTIMONY ON PROPOSED OIL, HAZARDOUS SUBSTANCE AND HAZARDOUS WASTE RESPONSE, LIABILITY AND COMPENSATION LEGISLATION S. 684, S. 953, S. 1325, S. 1341 AND S. 1480
790720
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 005 OF 13
STEWART S
NATIONAL ADVISORY COMMITTEE ON OCEANS AND ATMOSPHERE
U.S. SENATE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS SUBCOMMITTEES
ON RESOURCE PROTECTION AND ENVIRONMENTAL POLLUTION
104534
HEARINGS
SENATE
THE REAL TRAGEDY OF THE "LOVE CANALS" OF THIS COUNTRY IS PERSONAL
INJURY, AND THIS IS A PROBLEM THAT NEEDS FEDERAL LEGISLATION. AT A
MINIMUM, THE LEGISLATION SHOULD PROVIDE INJURED PARTIES WITH A FEDERAL
CAUSE OF ACTION, WITH A REDUCTION IN THE BURDEN OF PROOF OF CAUSATION
AND RELIEF FROM STATE STATUTES OF LIMITATION. CONGRESS PASSED JUST SUCH
A PROVISION IN THE "BLACKLUNG" LAW OF 1972. A REBUTTABLE PRESUMPTION OF
CUSATION IS CONTAINED IN H. R. 3797 AND 3798, INTRODUCED EARLIER THIS
YEAR BY MR. LAFALCE OF NEW YORK. THE LAFALCE BILLS WOULD ALLOW THE
ADMINISTRATOR OF EPA TO USE STATISTICAL DATA TO FIND THAT A CAUSE-EFFECT
RELATIONSHIP EXISTED BETWEEN A PARTICULAR HAZARDOUS SUBSTANCE AND A
PHYSICAL INJURY, AND TO ESTABLISH OTHER CRITERIA WHICH WOULD ALLOW A
CLAIMANT THE BENEFIT OF A STATUTORY REBUTTABLE PRESUMPTION THAT HE HAD
IN FACT BEEN INJURED BY THE SUBSTANCE IN QUESTION.
IN ADDITION TO PROVIDING A LEGAL BASIS ON WHICH INJURED THIRD PARTIES
COULD MAKE A CLAIM AGAINST THE PARTY RESPONSIBLE FOR IMPROPER
TRANSPORTATION OR DISPOSAL OF A HAZARDOUS SUBSTANCE, THIS COMMITTEE
SHOULD CONSIDER PROVIDING AT LEAST LIMITED FINANCIAL RELIEF FOR INJURED
PERSONS WHO HAVE NO VIABLE PARTY TO SUE. SUCH REMEDIES ALREADY EXIST IN
EVERY STATE FOR EMPLOYEES WHO ARE INJURED IN THE COURSE OF THEIR
EMPLOYMENT, AND THE LIMITED REMEDY WE SUGGEST HERE COULD BE PATTERNED
AFTER EXISTING WORKMEN'S COMPENSATION LAWS. WHILE THIS MAY PROVE
INADEQUATE IN MANY INSTANCES, SUCH A COMPENSATION SCHEME WOULD PROVIDE
AT LEAST SOME RELIEF TO PERSONS WHOSE HEALTH AND LIVES HAVE BEEN
ADVERSELY AFFECTED BY HAZARDOUS SUBSTANCES, WITHOUT CREATING A
TREMENDOUS FINANCIAL BURDEN ON THE GENERAL PUBLIC.
TESTIMONY ON PROPOSED OIL, HAZARDOUS SUBSTANCE AND HAZARDOUS WASTE RESPONSE, LIABILITY AND COMPENSATION LEGISLATION S. 684, S. 953, S. 1325, S. 1341 AND S. 1480
790720
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 006 OF 13
STEWART S
NATIONAL ADVISORY COMMITTEE ON OCEANS AND ATMOSPHERE
U.S. SENATE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS SUBCOMMITTEES
ON RESOURCE PROTECTION AND ENVIRONMENTAL POLLUTION
104535
HEARINGS
SENATE
WE SUPPORT THE CONCEPT THAT THIRD PARTIES INJURED BY SPILLS OF OIL
AND HAZARDOUS SUBSTANCES NEED A QUICK AND EQUITABLE METHOD OF OBTAINING
COMPENSATION, AND BELIEVE THAT A STRONG FEDERAL LAW SHOULD SUPPLANT
STATE LAWS IN THIS AREA. FOR THIS REASON, WE SUPPORT THE FORM OF
LIMITED PREEMPTION AS IT APPEARS IN THE ADMINISTRATION'S PROPOSAL,
S.1341, BUT ONLY AS IT APPLIES TO OIL. AS IT WILL TAKE SOMETIME FOR THE
FEDERAL SCHEME TO BE ESTABLISHED, CONGRESS MAY WISH TO CONSIDER DELAYING
THE EFFECT OF SUCH A PROVISION FOR THREE YEARS.
ON THE OTHER HAND, WE NOTE WITH CONCERN THE ADMINISTRATION'S EFFORT
TO NARROW THE SCOPE OF THIRD-PARTY DAMAGES RECOVERABLE IN SPILL
SITUATIONS, IN SECTION 607(A) OF THEIR PROPOSAL, S. 1341. WE CANNOT
AGREE WITH THEIR DECISION TO DELETE THE PROVISIONS FOUND IN THE
ADMINISTRATION'S EARLIER "OIL-ONLY" BILL, S. 953, WHICH WOULD ALLOW
STATE AND LOCAL GOVERNMENTS TO RECOVER LOST TAX REVENUE FOR UP TO ONE
YEAR AFTER A SPILL, AND ALLOW ANY UNITED STATES CLAIMANT TO RECOVER FOR
"LOSS OF USE" OF NATURAL RESOURCES. THE SUBSTITUTION OF COMMERCIAL
FISHERMEN'S CLAIMS FOR THE PREVIOUS, MUCH BROADER, "LOSS OF USE"
PROVISION WOULD LIMIT OR ELIMINATE CLAIMS BY BEACHFRONT PROPERTY OWNERS
AND RECREATIONAL FISHERMAN, AT THE LEAST. WE RECOMMEND THAT LEGISLATION
PASSED BY THE 96TH CONGRESS CONTAIN THE FAMILIAR TAX AND "LOSS OF USE"
PROVISIONS INSTEAD OF THE LIMITED PROVISION CONTAINED IN SEC. 507 (A)
(4) OF S. 1341. ON THE OTHER HAND, WE STRONGLY SUPPORT THE PROVISION IN
SEC. 607(A)(3) OF S. 1341 WHICH WOULD ALLOW STATE AND FEDERAL GOVERNMENT
CLAIMANTS FOR NATURAL RESOURCE DAMAGES TO RECOVER THEIR DAMAGE
ASSESSMENT COSTS AS PART OF A CLAIM.
TESTIMONY ON PROPOSED OIL, HAZARDOUS SUBSTANCE AND HAZARDOUS WASTE RESPONSE, LIABILITY AND COMPENSATION LEGISLATION S. 684, S. 953, S. 1325, S. 1341 AND S. 1480
790720
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 007 OF 13
STEWART S
NATIONAL ADVISORY COMMITTEE ON OCEANS AND ATMOSPHERE
U.S. SENATE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS SUBCOMMITTEES
ON RESOURCE PROTECTION AND ENVIRONMENTAL POLLUTION
104536
HEARINGS
SENATE
THE PRESENT SITUATION IN THE GULF OF MEXICO SUGGESTS A WEAKNESS IN
THE WHOLE "SUPERFUND" CONCEPT, AND WE URGE THE CONGRESS TO RE-EXAMINE
THE PROPOSED LEGISLATION AND MAKE CERTAINTHAT ANY OIL SPILL SUPERFUND
WOULD PROVIDE COMPENSATION FOR U.S. CITIZENS INJURED BY SPILLS INWATERS
UNDER THE JURISDICTION OF ANOTHER STATE OR ON THE HIGH SEAS.
IN THIS SAME AREA, WE WNDER ABOUT THE USE OF THE MODIFER "ECONOMIC"
AS IN THE FIRST PARAGRAPH OF SEC. 607(A) OF S. 1341. IF THE PHRASE
"CLAIMS FOR DAMAGES FOR ECONOMIC LOSS . . . RESULTING FROM POLLUTION"
MEANS THAT A CLAIMANT IS TO SEEK COMPENSATION IN MONETARY TERMS, THEN
THE WORD "ECONOMIC" IS REDUNDANT. ON THE OTHER HAND, WE ARE CONCERNED
THAT A SPILLER-DEFENDANT IN SUCH A SITUATION MIGHT INTERPRET THE WORD
"ECONOMIC" AS MODIFYING THE TYPES OF ACTIVITIES FOR WHICH LOSSES WILL BE
RECOGNIZED; I.E., THAT ONLY COMMERCIAL ACTIVITIES RESULT IN COMPENSABLE
LOSSES. IN VIEW OF THE TWO POSSIBLE INTERPRETATIONS, ONE OF WHICH WE
BELIEVE TO BE CONTRARY TO THE INTENT OF CONGRESS, WE SUGGEST THAT THE
WORD "ECONOMIC" BE DELETED FROM THE PHRASEOLOGY USED IN SEC. 607(A) OF
S. 1341 AND RELATED BILLS.
FINALLY, WE SHARE THE CONCCRN RAISED IN HEARINGS EARLIER THIS YEAR ON
H.R. 85 WITH RESPECT TO THE PROPOSED EXEMPTION FOR PUBLIC VESSELS. WE
SEE NO RATIONAL BASIF FOR THIS EXCEPTION, AND THEREFORE RECOMMEND
AGAINST IT.
WHILE WE BELIEVE THAT THE COMPENSATORY DAMAGES THAT A SPILLER OF OIL
OR HAZARDOUS SUBSTANCES WOULD BE REQUIRED TO PAY SHOULD SERVE AS A
DISINCENTIVE, WE RECOMMEND TWO MODIFICATIONS OF EXISTING LAW, AS WELL AS
MOST OF THE OIL AND HAZARDOUS SUBSTANCE SPILL PROPOSALS THAT WE HAVE
SEEN, THAT WE BELIEVE WOULD SIGNIFICANTLY ENHANCE THE DISINCENTIVE VALUE
OF THIS LEGISLATION.
TESTIMONY ON PROPOSED OIL, HAZARDOUS SUBSTANCE AND HAZARDOUS WASTE RESPONSE, LIABILITY AND COMPENSATION LEGISLATION S. 684, S. 953, S. 1325, S. 1341 AND S. 1480
790720
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 008 OF 13
STEWART S
NATIONAL ADVISORY COMMITTEE ON OCEANS AND ATMOSPHERE
U.S. SENATE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS SUBCOMMITTEES
ON RESOURCE PROTECTION AND ENVIRONMENTAL POLLUTION
104537
HEARINGS
SENATE
UNDER CURRENT LAW, A SPILLER HAS THE BENEFIT OF A PER-GROSS
REGISTERED TON (GRT) LIABILITY CEILING ON CLEANUP COSTS UNLESS THE
FEDERAL GOVERNMENT CAN SHOW "WILLFUL MISCONDUCT OR GROSS NEGLIGENCE
WITHIN THE PRIVITY AND KNOWLEDGE OF THE OWNER." THE WORD "AND" IN
EXISTING LAW IS PROBABLY A MISTAKE IN DRAFTING, MADE BACK IN 1969 WHEN
THE WATER QUALITY IMPROVEMENT ACT WAS DRAFTED. THE PHRASE "PRIVITY OR
KNOWLEDGE OF THE OWNER" COMES FROM THE 1851 LIMITATION OF LIABILITY ACT,
AND IS A DEEPLY-IMBEDDED FEATURE OF ADMIRALTY LAW.
FURTHERMORE, UNDER THE 1851 LIMITATION OF LIABILITY ACT, AN OWNER IS
ENTITLED TO LIMIT HIS LIABILITY TO THE POST-ACCIDENT VALUE OF HIS VESSEL
UNLESS THE OTHER PARTY CAN PROVE THAT THE VESSEL WAS "UNSEAWORTHY WITHIN
THE PRIVITY OR KNOWLEDGE OF THE OWNER." A TREMENDOUS BODY OF CASE LAW
HAS GROWN UP AROUND THE WORD "UNSEAWORTHY," AS IT IS USED IN THIS
CONTEXT, AND CURRENTLY THE "UNSEAWORTHY" STANDARD IS BROKEN IN MORE THAN
HALF OF THE CASES REPORTED EACH YEAR. "GROSS NEGLIGENCE" AND "WILLFULL
MISCONDUCT" CAN BE ONE-TIME EVENTS, SUCH THAT THE OWNER CANNOT BE
CHARGED WITH PRIVITY OR KNOWLEDGE THAT SUCH BEHAVIOR WOULD OCCUR, BUT
"UNSEAWORTHINESS" IS MUCH MORE LIKELY TO BE TRACEABLE TO THE OWNER.
IN OUR VIEW, THE LIMITATION OF LIABILITY PROVIDED BY LANGUAGE SUCH AS
THAT IN SEC. 604(C)(1) OF S. 1341, "EXCEPT WHEN . . . CAUSED . . . BY
WILLFUL MISCONDUCT OF GROSS NEGLIGENCE, WITHIN THE PRIVITY OR KNOWLEDGE
OF THE OWNER," IS OVERLY LENIENT, AND IN ITS PLACE WE RECOMMEND LANGUAGE
SUCH AS:
EXCEPT WHEN THE POLLUTION OR THREAT THEREOF IS CAUSED IN WHOLE OR IN
PART BY WILLFUL MISCONDUCT, GROSS NEGLIGENCE, OR UNSEAWORTHINESS, WITHIN
THE PRIVITY OR KNOWLEDGE OF THE OWNER . . .
TESTIMONY ON PROPOSED OIL, HAZARDOUS SUBSTANCE AND HAZARDOUS WASTE RESPONSE, LIABILITY AND COMPENSATION LEGISLATION S. 684, S. 953, S. 1325, S. 1341 AND S. 1480
790720
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 009 OF 13
STEWART S
NATIONAL ADVISORY COMMITTEE ON OCEANS AND ATMOSPHERE
U.S. SENATE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS SUBCOMMITTEES
ON RESOURCE PROTECTION AND ENVIRONMENTAL POLLUTION
104538
HEARINGS
SENATE
THIS CHANGE WOULD BE PARTICULARLY EFFECTIVE IN CASES OF SPILLS FROM
RIVERBORNE BARGES WHERE THE RELATIVELY LOW LIABILITY LIMITS OF $150 PER
GRT, AND EVEN $300 PER GRT IN SOME CASES, SIMPLY DO NOT COME CLOSE TO
THE COSTS OF CLEANING UP SUCH SPILLS.
EXISTING LAW, AS WELL AS THE ADMINISTRATION'S PROPOSED S.1341,
PROVIDES FOR ONLY A $5,000 CIVIL PENALTY FOR SPILLING OIL, BUT A $50,000
CIVIL PENALTY FOR SPILLING A HAZARDOUS SUBSTANCE, INCREASING TO A
MAXIMUM OF $250,000 IF THE SPILLER'S LIABILITY CEILING IS BROKEN. WE
RECOMMEND THAT THE SAME FIVE-TO-ONE MULTIPLE BE INCORPORATED INTO THE
OIL SPILL CIVIL PENALTY PROVISION, INCREASING THE MAXIMUM PENALTY TO
$25,000 IF THE SPILLER'S LIABILITY LIMIT IS BROKEN. WE ALSO RECOMMEND
THAT THE SPILLER'S PRIOR RECORD OF OIL SPILLS BE ADDED TO THE LIST OF
FACTORS CONSIDERED BY THE COAST GUARD OR THE SECRETARY IN ASSESSING THE
PROPER AMOUNT OF ANY CIVIL PENALTY.
WE FEEL THAT IT IS DESIRABLE TO ENCOURAGE OR FURTHER SUPPORT ACTIVE
STATE PROGRAMS DESIGNED TO PROMOTE OIL SPILL PREVENTION AWARENESS AT
LOCAL LEVELS THAT WOULD BE DIFFICULT FOR THE FEDERAL GOVERNMENT TO
REACH. SUCH PROGRAMS IN THE AREAS OF INDUSTRIAL ACCIDENTS, HIGHWAY
SAFETY, AND FIRE PREVENTION HAVE HAD A RECORD OF SUCCESS IN THE PAST.
TESTIMONY ON PROPOSED OIL, HAZARDOUS SUBSTANCE AND HAZARDOUS WASTE RESPONSE, LIABILITY AND COMPENSATION LEGISLATION S. 684, S. 953, S. 1325, S. 1341 AND S. 1480
790720
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 010 OF 13
STEWART S
NATIONAL ADVISORY COMMITTEE ON OCEANS AND ATMOSPHERE
U.S. SENATE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS SUBCOMMITTEES
ON RESOURCE PROTECTION AND ENVIRONMENTAL POLLUTION
104539
HEARINGS
SENATE
WE THEREFORE, URGE THAT UP TO TEN MILLION DOLLARS FROM THE OIL SPILL
FUND BE SET ASIDE ANNUALLY TO SUPPORT SUCH PROGRAMS, TO BE ADMINISTERED
BY THE STATES AFTER APPROVAL BY THE SECRETARY OF TRANSPORTATION. SUCH
PROGRAMS COULD INCLUDE, FOR EXAMPLE, LOCAL INSPECTIONS, TRAINING AND
PUBLIC INFORMATION PROGRAMS, WASTE OIL DISPOSAL FACILITIES, AND THE
LIKE. WE BELIEVE THAT SUCH AN EFFORT COULD WELL RESULT IN AN OVERALL
REDUCTION IN THE NUMBER OF OIL SPILLS, AND IS CERTAINLY WORTH THE
RELATIVELY MINOR FINANCIAL COMMITMENT INVOLVED.
A. A RULEMAKING PROCESS. WE HAVE ALWAYS SUPPORTED, AND WE CONTINUE
TO STRONGLY SUPPORT, A PROVISION IN THIS LEGISLATION THAT WOULD MANDATE
NATURAL RESOURCE DAMAGE ASSESSMENT PROCEDURES TO BE DEVELOPED IN A
RULEMAKING PROCESS. ABSENT SUCH PROCEDURES, WE BELIEVE THAT IT WILL BE
PRACTICALLY IMPOSSIBLE FOR STATES AND THE FEDERAL GOVERNMENT TO RECOVER
DAMAGES FOR INJURED OR DESTROYED NATURAL RESOURCES IN THE MAJORITY OF
SPILLS. WE BELIEVE THAT A PROVISION SUCH AS THAT OFFERED LAST YEAR BY
SENATOR CHAFEE, WHICH EVENTUALLY 8ECAME SECTION 5(E) OF S. 2083, IS
ESSENTIAL. IN ADDITION TO THE RULEMAKING PROCESS ITSELF, WE BELIEVE
THATTHE DIRECTED RESEARCH PROVISION, SECTION 5(A)(9) OF THE 95TH
CONGRESS' S.2083, ALSO OFFERED BY SENATOR CHAFEE, IS A VALUABLE
COMPLEMENT TO THIS PROCESS. BY INCLUDING THESE TWO PROVISIONS IN OIL
AND HAZARDOUS SUBSTANCE COMPENSATION LEGISLATION AT THIS TIME, WE
BELIEVE THAT THE NATURAL RESOURCE DAMAGE PROVISION COULD BECOME THE
SINGLE MOST IMPORTANT DISINCENTIVE TO POLLUTE IN THIS BILL.
TESTIMONY ON PROPOSED OIL, HAZARDOUS SUBSTANCE AND HAZARDOUS WASTE RESPONSE, LIABILITY AND COMPENSATION LEGISLATION S. 684, S. 953, S. 1325, S. 1341 AND S. 1480
790720
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 011 OF 13
STEWART S
NATIONAL ADVISORY COMMITTEE ON OCEANS AND ATMOSPHERE
U.S. SENATE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS SUBCOMMITTEES
ON RESOURCE PROTECTION AND ENVIRONMENTAL POLLUTION
104540
HEARINGS
SENATE
NACOA AGREES WITH INDUSTRY AND ENVIRONMENTAL GROUPS THAT FUNDS
RECOVERED BY STATES AND THE FEDERAL GOVERNMENT FOR DAMAGES TO NATURAL
RESOURCES SHOULD BE USED SOLELY FOR PURPOSES OF RESTORING THE INJURED
ECOSYSTEM, OR TO RESTORE OR PROTECT AND EQUIVALENT ECOSYSTEM WHERE THE
INJURED SYSTEM CANNOT BE RESTORED. OTHERWISE STATED, WE OPPOSE LANGUAGE
SUCH AS THAT FOUND IN SECTION 607 (B)(3) OF S. 1341; I.E.,
"COMPENSATION PAID UNDER THIS ITEM SHALL BE USED ONLY FOR ASSESSING THE
DAMAGES TO AND THE RESTORATION OF THE NATURAL RESOURCES DAMAGED," AS
CREATING AN UNINTENTIONAL "CAP" ON RECOVERY. FOR EXAMPLE, DESTRUCTIN OF
10 PERCENT OF A YEAR-CLASS OF COD ON GEORGES' BANK, SOMETHING QUITE
POSSIBLE IF A BLOWOUT AKIN TO THE BAY OF CAMPECHE BLOWOUT WERE TO OCCUR
ON GEORGES BANK AT THE BEGINNING OF THE WINTER, SHOULD RESULT IN A
COMPENSA0LE LOSS UNDER SECTION 607(A)(3). HOWEVER, THE FACT THAT
DESTROYED COD EGGS COULD NOT BE REPLACED AT ANY COST MIGHT ALLOW THE
SPILLER TO AVOID APYING A PENNY FOR DAMAGES TO NATURAL RESOURCES.
FURTHERMORE, LANGUAGE PERMITTING THE USE OF SUCH FUNDS "FOR ACQUISITION
OF EQUIVALENT RESOURCES" IS VAGUE, AND COULD BE CONSTRUED AT ONE EXTREME
TO PRECLUDE ALL EXPENDITURES, OR AT THE OTHER EXTREME, TO PERMIT THE USE
OF SUCH FUNDS FOR THE CONSTRUCTION OF ROADS, OR FOR ANY OTHERPURPOSE.
NEITHER EXTREME IS DESIRABLE, AND WE RECOMMEND THAT LANGUAGE SIMILAR TO
THAT OF LAST YEAR'S SENATE BILL, S. 2803, BE INCORPORATED INTO ANY
PROVISION LIKE SEC. 607(B)(3) OF S. 1341. WE RECOMMEND THAT THE LAST
LINE OF SEC. 607(B)(3) BE MODIFIED TO READ:
TESTIMONY ON PROPOSED OIL, HAZARDOUS SUBSTANCE AND HAZARDOUS WASTE RESPONSE, LIABILITY AND COMPENSATION LEGISLATION S. 684, S. 953, S. 1325, S. 1341 AND S. 1480
790720
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 012 OF 13
STEWART S
NATIONAL ADVISORY COMMITTEE ON OCEANS AND ATMOSPHERE
U.S. SENATE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS SUBCOMMITTEES
ON RESOURCE PROTECTION AND ENVIRONMENTAL POLLUTION
104541
HEARINGS
SENATE
. . .OR TO RESTORE OR PROTECT EQUIVALENT RESOURCES. THE MEASURE OF
DAMAGES UNDER THIS ITEM SHALL NOT BE LIMITED BY THE SUMS THAT MAY BE
USED TO REPLACE OR RESTORE SUCH RESOURCES.
IF THE NATURAL RESOURCE DAMAGE PROVISION PROVES AS EFFECTIVE AS WE
BELIEVE IT SHOULD BE, STATES AND THE FEDERAL GOVERNMENT SHOULD BE
ALLOWED TO ACCUMULATE THE MANY SMALL RECOVERIES THEY RECEIVE IN A TRUST
FUND, UNTIL SUFFICIENT FUNDS ARE ON HAND TO CARRY OUT RECOVERY PROJECTS
IN A COST-EFFECTIVE MANNER.
FOR A VARIETY OF REASONS, SOME STATES MAY WELL NOT MAKE CLAIMS FOR
DAMAGES TO NATURAL RESOURCES, FOR EXAMPLE, DUE TO A LACK OF PERSONNEL OR
POLITICAL PRESSURES. EVEN IN THE STATE OF FLORIDA, WHICH HAS ONE OF THE
BEST OIL AND HAZARDOUS SUBSTANCE SPILL LAWS IN THE NATION, THE STATE
DOES NOT FILE NATURAL RESOURCE DAMAGE CLAIMS AS ALLOWED UNDER THEIR
STATUTE. FOR THIS REASON, NACOA BELIEVES THAT A CITIZENS' SUIT
PROVISION SHOULD ACCOMPANY THE NATURAL RESOURCE DAMAGE PROVISION.
SIMILAR IN NATURE TO A SHAREHOLDER'S DERIVATIVE SUIT, A CITIZEN OF A
STATE, OR OF THE UNITED STATES IN CASES OF NATURAL RESOURCES WHERE THE
FEDERAL GOVERNMENT IS THE TRUSTEE, SHOULD BE ABLE TO BRING, AT HIS OWN
EXPENSE AND WITH NOTICE TO THE GOVERNMENT'S CHIEF LEGAL OFFICER, A CLAIM
AGAINST THE SPILLER OR THE FUND FOR DAMAGES TO NATURAL RESOURCES. WITH
THE DAMAGE ASSESSMENT RULES IN PLACE, SUCH A CLAIM WOULD NOT BE BEYOND
THE MEANS OF AN ORDINARY CITIZEN. MONEYS RECOVERED BY CITIZENS' SUITS
SHOULD GO TO THE STATE OR FEDERAL GOVERNMENT, OR TO THE FUND, AND THE
CITIZEN CLAIMANT GOVERNMENT. BY ALLOWING THE COURT TO AWARD COSTS AND
ATTORNEYS' FEES TO EITHER SIDE, THIS PROVISION SHOULD PREVENT FRIVOLOUS
SUITS.
TESTIMONY ON PROPOSED OIL, HAZARDOUS SUBSTANCE AND HAZARDOUS WASTE RESPONSE, LIABILITY AND COMPENSATION LEGISLATION S. 684, S. 953, S. 1325, S. 1341 AND S. 1480
790720
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 013 OF 13
STEWART S
NATIONAL ADVISORY COMMITTEE ON OCEANS AND ATMOSPHERE
U.S. SENATE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS SUBCOMMITTEES
ON RESOURCE PROTECTION AND ENVIRONMENTAL POLLUTION
104542
HEARINGS
SENATE
WE ARE CONCERNED WITH THE COST-CUTTING APPROACH TAKEN BY THE
ADMINISTRATION IN ITS PROPOSAL, S. 1341, FOR "CONTAINMENT" OF HAZARDOUS
WASTE SITES. THE NOTION OF A "LEAST-COST' SOLUTION TO SUCH A SERIOUS
LONG-TERM PROBLEM IS SOMETHING THAT WE FEAR COULD BE MISUSED, AND WE
RECOMMEND THAT THE LEGISLATION CALL FOR THE "LEAST-COST, BUT MOST
EFFECTIVE LONG-TERM" ALTERNATIVE IN DEALING WITH AN UNCONTROLLED
HAZARDOUS WASTE SITE. WE CANNOT SUPPORT THE THEORY THAT 20 YEARS OF
CONTAINMENT IS THE IDEAL, OR EVEN SHOULD REQUIRE THE ADMINISTRATOR AND
THE STATES TO SEEK PERMANENT SOLUTIONS TO THE PROBLEMS OF RELEASES OF
HAZARDOUS ALL OF THE WASTES AT A SITE IN STEEL DRUMS THAT WILL LAST 20
YEARS AND A DAY, ALTHOUGH THAT MAY BE THE "LEAST-COST CONTAINMENT"
OPTION.
NACOA ALSO BELIEVES THAT THE ADMINISTRATION'S PROPOSAL CUTS CORNERS
IN TOO MNAY OTHER WAYS. THE HEAVY RELIANCE ON STATE FINANCIAL
PARTICIPATION IS MISPLACED. STATES, EVEN LESS THAN THE FEDERAL
GOVERNMENT, DO NOT HAVE THE WHEREWITHAL TO PAY THEIR SHARE OF THE COSTS,
AS THE ADMINISTRATION WOULD REQUIRE. SOME STATES WOULD BE FACED WITH
THE NEED TO CREATE STATE FUNDS, PERHAPS BY A FEE ON PETROCHEMICAL
FEEDSTOCKS JUST LIKE THE FEDERAL FEE. COMPETITION BETWEEN STATES WOULD
BE HEIGHTENED, AS INDUSTRIES WOULD THREATEN TO MOVE TO A MORE HOSPITABLE
STATE. IN RESPONSE TO SUCH THREATS OF ECONOMIC DISLOCATION, MANY STATES
MIGHT MAKE THE POLITICAL DECISION NOT TO ASSESS SUCH FEES, AND THE WHOLE
PROCESS OF CLEANING UP HAZARDOUS WASTE SITES COULD BE STYMIED. IF THERE
WERE EVER A NEED FOR A UNIFORM FEDERAL LAW IN AN AREA, AND A STRONG
FEDERAL PRESENCE, THIS IS IT.
HAZARDOUS AND TOXIC WASTE DISPOSAL
STATEMENT
790906
U.S. SENATOR
VERMONT
U.S. SENATE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS SUBCOMMITTEES
ON ENVIRONMENTAL POLLUTION AND RESOURCE PROTECTION WASHINGTON, D.C.
104543
HEARING
TRANSCRIPT
SENATE
THE SUBCOMMITTEES MET AT 10:05 A.M., IN ROOM 4200, DIRKSEN SENATE
OFFICE BUILDING, HON. ROBERT T. STAFFORD, PRESIDING PRESENT: SENATOR
STAFFORD. AND PUBLIC WORKS WILL COME TO ORDER.
IN VIEW OF THE WEATHER WE HAD YESTERDAY, THE CHAIR IS SURPRISED
THE CHAIR WILL SAY THAT HE SPENT THE FIRST HALF HOUR THIS MORNING
ARRANGING FOR A TREE TO BE DISPOSED OF THAT CAME DOWN IN OUR
FRONT YEARD LAST NIGHT, KNOCKING DOWN SOME ELECTRIC POWERLINES
IN THE PROCESS. I THEREFORE EXPECT TO BUY SOME OF THE MOST
EXPENSIVE FIREWOOD I HAVE EVER PURCHASED.
SOME OF OUR WITNESSES, WE APPRECIATE, HAVE NOT BEEN ABOT TO GET HERE
DUE TO THE FACT THAT HURRICANE DAVID IS STILL A STRONG RAINSTORM WITH
HEAVY WIND UP IN THE NEW YORK AREA, CLOSING OR AT LEAST MAKING TRAVEL
DIFFICULT FROM THAT AREA. I WELCOME TODAY'S WITNESSES.
TODAY'S HEARING IS THE 10TH DAY OF HEARINGS HELD BY THE COMMITTEE ON
ENVIRONMENT AND PUBLIC WORKS ON THE ISSUE OF HAZARDOUS SUBSTANCES INTHE
ENVIRONMENT. I THINK IT IS FAIR TO SAY, BASED ON THIS YEAR'S HEARINGS
AND THOSE HELD ON THE SAME SUBJECT LAST YEAR BY THE ENVIRONMENTAL
POLLUTION SUBCOMMITTEE, THAT MANY OF OUR MEMBERS HAVE CONCLUDED THERE
IS, INDEED, A PROBLEM THAT REQUIRES FEDERAL ATTENTION. WHAT WE HAVE NOT
CONCLUDED ARRIVED AT SOME TENTATIVE DETERMINATIONS, AND THESE ARE SET
FORTH IN S. 1480. THAT BILL HAS BEEN INTRODUCED BY SENATORS MUSKIE,
CULVER, CHAFEE, RANDOLPH, MOYNIHAN, AND MYSELF.
THE PRINCIPAL PURPOSE OF THESE HEARINGS IS TO PROVIDE INTERESTED
PARTIES WITH THE OPPORTUNITY TO COMMENT ON THE PROVISIONS OF S. 1480.
SOME OF THE WITNESSES HAD ALREADY ASKED TO TESTIFY. OTHERS WERE INVITED
AT OUR INITIATIVE BECAUSE WE THOUGHT THEIR VIEWS SHOULD BE HEARD. IF
ANY OTHER INTERESTED PARTIES HAVE BEEN OVERLOOKED, I INVITE THEM TO
SUBMIT TESTIMONY IN WRITING. IN FACT, THE CHAIR WOULD PARTICULARLY URGE
EVERY INTERESTED PARTY WHO MIGHT BE AFFECTED BY THE LEGISLATION WE ARE
CONSIDERING, IN WHATEVER FORM IT MAY COME OUT OF CONGRESS, TO JOIN US AT
THIS FORMATIVE STAGE WHEN MATTERS CAN BE SHAPED AND VIEWPOINTS SHARED,
RATHER THAN TO COME IN FORMATION OF LEGISLATION WHICH CAN BE MORE TO
EVERYBODY'S LIKING THAN MAY BE THE CASE AT SOME SUBSEQUENT DATE. THAT
THE WITNESSES KEEP THEIR ORAL STATEMENTS TO NO MORE THAN 10 MINUTES, IF
POSSIBLE, AND IF WRITTEN STATEMENTS ARE LONGER THAN THAT, WE WILL PLACE
THEM, IN THEIR ENTIRETY, IN THE RECORD.
SINCE THE WEATHER HAS REDUCED OUR LIST OF WITNESSES SOMEWHAT TODAY,
UNAVOIDABLY, THE MEMBERS FROM NEW YORK NOT BEING ABLE TO GET HERE, THE
CHAIR WOULD SUGGEST, IF IT IS AGREEABLE, THAT THE WITNESSES HERE AS A
SINGLE PANEL -- AND THE WITNESSES WE HAVE LISTED ARE MR. EDWIN WHEELER,
PRESIDENT OF THE FERTILIZER INSTITUTE, DR. HERBERT KRAEMER OF GENERAL
MILLS, AND MR. JAMES K. COYNE, PRESIDENT OF COYNE CHEMICAL IN
PHILADELPHIA -- AND WE WOULD INVITE MR. ROBERT F. COX, SR., FROM
PHILADELPHIA TO JOIN THE OTHERS AT THE WITNESS TABLE. THE CHAIR WILL
INVITE THE MEMBERS TO PROCEED IN WHICHEVER ORDER OF PRECEDENCE YOU
PREFER. SO WE WILL LEAVE THAT, GENTLEMEN, TO WHOEVER YOU WISH TO START
AND WHAT SEQUENCE YOU WISH TO FOLLOW. WE WILL WITHOLD QUESTIONS UNTIL
ALL MEMBERS HAVE PRESENTED THEIR STATEMENTS.
STATEMENT
HAZARDOUS AND TOXIC WASTE DISPOSAL
WHEELER EM
THE FERTILIZER INSTITUTE
104544
HEARING
TRANSCRIPT
SENATE
MR. WHEELER. IF THE CHAIR DOES NOT TAKE ANY POLITICAL IMPLICATIONS
FROM THE FACT I AM ON THE LEFT, I WILL GO FIRST, IF THAT IS ALL RIGHT.
SENATOR STAFFORD. THAT WILL BE AGREEABLE TO THE CHAIR. I AM IN THE
MIDDLE.
MR. WHEELER. SENATOR, FIRST, I WOULD LIKE TO SAY I AM EDWIN WHEELER,
PRESIDENT OF THE FERTILIZER INSTITUTE, LOCATED HERE IN WASHINGTON, D.C.
AT 1015 18TH STREET NW., WASHINGTON, D.C. 20036. I HAVE PREPARED A
SHORT STATEMENT AND WILL DO MY DARNDEST TO STAY WITHIN THE 10 MINUTES.
HAVE LEAVE TO FILE A FAIRLY LENGTHY STATEMENT. CANDIDLY, THE QUESTIONS
SENT TO US IN TELEX WERE SENT TO US WHILE OUR LAWYERS STATEMENT WITHIN
10 DAYS.
SENATOR STAFFORD. THE CHAIR WILL BE GLAD ON BEHALF OF THE
SUBCOMMITTEE TO HOLD THE RECORD OPEN IN ORDER TO PERMIT THAT.
(SEE P. 606.)
MR. WHEELER. THANK YOU.
BY WAY OF INTRODUCTION, THE FERTILIZER INSTITUTE IS A VOLUNTARY TRADE
ASSOCIATION COMPRISED OF 350 MEMBERS. OUR MEMBERS PRODUCE ABOUT 95
PERCENT OF ALL FERTILIZER PRODUCED IN THE UNITED STATES. THE PLANTS ARE
CURRENTLY RUNNING AT ABOUT 51 MILLION TONS FOR DOMESTIC AND 20 TO 25
MILLION TONS FOR EXPORT. OUR SALES, DOMESTIC AND EXPORT, RUN ABOUT $8
BILLION.
THIS BILL PROBABLY FALLS HARDER ON US THAN ANY OTHER CHEMICAL
INDUSTRY BECAUSE THE ADMINISTRATION, IN EARLIER MEASURES, SINGLED US OUT
FOR SPECIFIC TREATMENT. ALTHOUGH, BOTH BILLS ARE WITHOUT MERIT INSOFAR
AS OUR INDUSTRY IS CONCERNED. BASED ON THE RESPONSES OBTAINED FROM THE
ENVIRONMENTAL PROTECTION AGENCY UNDER THE FREEDOM OF INFORMATION ACT,
NOT A SINGLE INACTIVE HAZARDOUS ITS IMMEDIATE BYPRODUCTS. BUT, UNDER
THE REPORTS AND PRESS RELEASES ISSUED BY EPA AND THE WHITE HOUSE, OUR
NATION'S FOOD BILL IS GOING TO BE INCREASED BY AT LEAST $40 MILLION
BASED ON THE FEEDSTOCK FORMULA CONTAINED IN S. 1341 AS IT RELATES TO THE
SPECIFICALLY COVERED MATERIALS, AMMONIA, SULFURIC ACID, NITRIC ACID.
DEPARTING FROM THE STATEMENT FOR A MOMENT, AS BEST WE CAN CALCULATE
THERE HAS BEEN A MISTAKE MADE IN THE ADMINISTRATION'S CALCULATIONS, AND
IT WOULD APPEAR THEY ARE SEEKING TO IMPOSE ABOUT $60 MILLION IN TAX
DIRECTLY ON US. BUT FOR WHAT PURPOSE? NONE OF THESE PRODUCTS WERE
FOUND BY EPA TO POSE A PROBLEM IN THE AREAS PROPOSED TO BE SOLVED BY THE
INSTANT LEGISLATION. BLUNTLY THEN, THE FERTILIZER PRODUCERS/FOOD EATERS
OF THE NATION AND MUCH OF THE WORLD, FOR WE ARE THE WORLD'S LEADING FOOD
EXPORTER, ARE BEING
THE TAX OR FEE IS IMPOSED ON THE ONE ITEM ALL MUST HAVE, FOOD. THE
POOR, WHOS PRINCIPAL LIVING EXPENSE IS FOOD, ARE HIT THE TO THIS
SINGULAR NECESSITY.
VARYING ONLY IN APPROACH BUT BRINGING THE IDENTICAL UNFAIR AND
UNEQUITABLE RESULT IS S. 1480' HERE IT IS PROPOSED TO TAX THE PRODUCTION
OF OUR NUTRIENT-PRODUCING PLANTS AND MINES ON UNSPECIFIED PRODUCTS AT A
TAX RATE LIKEWISE UNSPECIFIED. WE HAVE SERIOUS DOUBT THAT SUCH A SCHEME
IS CONSTITUTIONAL, BUT SOLELY FOR PURPOSES OF THIS TESTIMONY WE WILL
TREAT S. 1480, UPON FINAL ENACTMENT, AS THOUGH IT COULD SUCCESSFULLY
PASS A COURT CHALLENGE ON THIS POINT. I BELIEVE IT IS FAIR TO SAY THAT
IF S.1480 WERE TO BE THE ENACTED BILL, IT WOULD BE ADMINISTERED ALONG
THE PRODUCT AND COVERED AT THE RELATIVELY SAME TAX LEVEL AS S. 1341, FOR
IT GIVES THE PRESIDENT OF THE UNITED STATES THE AUTHORITY TO SET THE
LEVEL AND ON WHATEVER HAZARDOUS PRODUCTS HE DETERMINES TO BE
APPROPRIATE. AS THE PRESIDENT OBVIOUSLY WOULD LOOK TO EPA AND AS S.
1341 IS AN ADMINISTRATION MEASURE, WE THEREFORE FEEL THAT $40 TO $60
MILLION PER ANNUM WILL BE OUR INDUSTRY'S ASSESSMENT UNDER EITHER
MEASURE. ENACTMENT OF EITHER MEASURE ON THE NATION'S FERTILIZER
PRODUCERS. NONE.
WE TURN OUR ATTENTION NOW TO THE ACCIDENTAL SPILLS ASPECT OF BOTH
MEASURES BEFORE THE COMMITTEE TODAY. IN THE AFOREMENTIONED IN-DEPTH
PAPER WE WILL SOON FILE, THERE WILL BE INCLUDED A DETAILED ANALYSIS OF
SPILLS WHICH THE EPA HAS PROVIDED US UNDER THE SAME FREEDOM OF
INFORMATION REQUEST. SUMMARIZING, THERE WERE APPROXIMATELY 20 SPILLS IN
1977, 1978 AND THROUGH JULY 1979 INVOLVING THE DESIGNATED HAZARDOUS
FERTILIZER MATERIAL. DURING THIS NEARLY 3-YEAR PERIOD, 15 WERE DURING
TRANSPORTATION AND FEWER THAT 4 OCCURRED WITHIN CURRENTLY OPERATING
FERTILIZER PLANTS. WE TAKE THE POSITION THAT AN INPLANT SPILL -- WHETHER
OURS OR SOME OTHER INDUSTRY'S -- IS SOLELY THE RESPONSIBILITY OF THE
PLANT OPERATOR A PERSON OVER WHOM OTHERS HAVE ABSOLUTELY NO CONTROL, WE
FAIL TO SEE WHY THESE STRANGERS TO THE MISHAP SHOULD BEAR THE BURDEN VIA
FAR REACHING IS THE CONCEPT EMBODIED IN THE LEGISLATION AND WITHOUT
PRECEDENT IS THE PROPOSAL THAT SHIPPERS WILL BE JOINTLY LIABLE FOR
CARRIER MISHAPS. GOING BACK TO ENGLISH COMMON LAW. IT HAS ALWAYS BEEN
THE RULE THAT A CARRIER IS LAWFULLY ENTITLED TO EXTRA COMPENSATION FOR
HANDLING VALUABLE OR DANGEROUS COMMODITIES. OUR NATION'S CARRIERS DO
RECEIVE THIS HIGHER COMPENSATION FOR HANDLING THESE HAZARDOUS MATERIAL
UNDER THE TARIFFS APPROVED BY THE INTERSTATE COMMERCE COMMISSION.
LIKEWISE, A SIMILAR ANCIENT RULE USED UNTO THIS DAY PROVIDES THAT
WHEN THE CARRIER IS IN THE SOLE AND EXCLUSIVE CONTROL OF THE PRODUCT, IT
IS THE CARRIER ALONE WHO IS RESPONSIBLE FOR MISHAP TO THE LADING ITSELF
OR FOR ANY FORESEEABLE CONSEQUENCES TO OTHERS WHO MAY BE HARMED BY
EITHER THE LADING OR EQUIPMENT IN THE EVENT OF AN ACCIDENT. WHEN A
RAILROAD ACCEPTS A TANK CAR OF AMMONIA FOR SHIPMENT FROM A PRODUCER AT
DONALDSONVILLE, LA., TO A RETAIL DEALER AT EASH GRAVEL, IOWA, NEITHER
THE SHIPPER NOR THE RECEIVER CAN, AS A MATTER OF LAW OR AS A PRACTICAL
PROPOSITION, EXCERT ANY CARRIER AND ITS EMPLOYEES. THE PROPOSAL FOR
JOINT LIABILITY WOULD, IN EFFECT, PENALIZE THE SHIPPER FOR THE MOST
BLATANT AND OUTRAGEOUS ACTS OR OMISSIONS BY THE CARRIER. INDEED, AS A
MATTER OF PUBLIC POLICY IT WOULD ENCOURAGE A RELAXATION OF THE
INCENTIVES FOR THE CARRIERS TO EXERCISE GREAT CARE AND CONCERN IN THE
TRANSPORT OF HAZARDOUS MATERIALS. IN MODERN TIMES WE ARE UNAWARE OF AN
ACCIDENT INVOLVING OUR MATERIALS WHERE THOSE INJURED WERE UNABLE TO
OBTAIN REDRESS FROM THE CARRIER.
LAST, BE IT A HAZARDOUS WASTE SITE OR A TRANSPORT ACCIDENTAL SPILL,
THE LARGEST VOLUME OF THE PRODUCT COVERED BY EITHER MEASURE INSOFAR AS
OUR INDUSTRY IS CONCERNED IS ANHYDROUS AMMONIA. HAVING 82 PERCENT
NITROGEN CONTENT, IT BY FAR IS OUR BIGGEST PRODUCTION ITEM, NOW RUNNING
AT 17 MILLION TONS A YEAR, WITH ABOUT WHEN SUDDENLY RELEASED OR WHEN THE
FARMER APPLIES IT INTO THE SOIL IT TURNS INTO A GASEOUS STATE. WHEN, AS
OCCUREED IN THE THE RUPTURED CARS SUDDENLY RELEASED THE PRESSURE, THE
GASEOUS CLOUD ROSE IMMEDIATELY AND WAS GONE IN ABOUT THE SAME TIME IT
TAKES TO READ THIS PARAGRAPH. THE FUMES ARE TOXIC, BUT ONCE IN THE AIR
THERE IS NOTHING TO CLEAN UP. THERE IS NO WASTE, NO HAZARDOUS WASTE
SITE. AND PARENTHETICALLY, NO ONE WAS INJURED IN THIS SERIOUS
DERAILMENT.
OUR INDUSTRY AND THE U.S. GOVERNMENT, AS WELL AS EUROPEAN INDUSTRY,
HAVE FUNDED A SUBSTANTIAL PROJECT TO DETERMINE HOW AND IN WHAT MANNER
THIS CLOUD DISPERSES ON LAND AND WATER. WE WILL SOON HAVE DEFINITIVE
ANSWERS, BUT AS TO MATERIAL REMAINING ON SITE, THE SCIENTIFIC LAWS OF
NATURE ALREADY PROVIDE THE ANSWER -- NONE. WHY, THEN, SHOULD $25
MILLION A YEAR COME FROM AN INDUSTRY THAT DOES GENERATE A HAZARDOUS
MATERIAL BUT INE EVENT OF AN ACCIDENT NEVER LEAVES A TRACE OF RESIDUE?
S. 1341 GOES SO FAR IN ATTEMPTING TO REACH OUT ON ANY POSSIBLE
SITUATION THAT WE ARE IN SERIOUS DOUBT AS TO WHETHER THE NATION'S
FARMERS CAN CONTINUE TO USE ANHYDROUS AMMONIA PER SE. AND INCLUDES
MOTOR VEHICLES AND ROLLING STOCK. IT THUS SEEMS TO INCLUDE THE SOME
275,000 NURSE TANKS WE NOW EMPLOY. THESE 1,000 GALLON VEHICLES ARE
PULLED BEHIND A CULTIVATOR-TYPE DEVICE WHICH INJECTS THE AMMONIA VAPORS
INTO THE GROUNDS. ERGO, THESE ONSHORE FACILITIES ARE RELEASING A
HAZARDOUS MATERIAL WHICH, PRIOR TO THE BILL HERE, WAS APPLIED IN THE
PEACEFUL PURSUIT OF A LARGER YIELD. PARENTHETICALLY, NITROGEN INCREASES
CORN YIELDS ABOUT 50 PERCENT, ON ALL CROPS STRAIGHT ACROSS THE WORLD BY
ABOUT 30 PERCENT. CURRENTLY, IT IS NOT UNUSUAL, INDEED, IT IS MORE
NEARLY NORMAL, FOR A FARMER TO USE A LARGER AMOUNT OF AMMONIA THAN THAT
WHICH WOULD BE REPORTABLE UNDER THE REGULATIONS PROPOSED PURSUANT TO
SECTION 311 OF THE CLEAN WATER ACT JUST ANNOUNCED BY EPA SEEKING
COMMENT. WE CANNOT BELIEVE THAT AN ADMINISTRATION CALLING FOR TO BE
GOVERNED BY JOINT LIABILITY PROVISIONS NOW SET FORTH IN THE PRESENT
DRAFT MEASURES. IN A RANDOM FASHION. WE DO NOT CONTEND, NOR DEFEND,
THE CHEMICAL INDUSTRY GENERALLY. THERE POSSIBLY AND PROBABLY ARE SOME
BAD APPLES, BAD ACTORS, FROM TIME TO TIME AND PLACE TO PLACE BUT, TO
PILLORY THE FERTILIZER PRODUCERS, OUR FARMERS AND CONSUMERS, WHEN THERE
IS ABSOLUTELY NO SHOWING OF OUR INDUSTRY HAVING EITHER HAZARDOUS WASTE
DISPOSAL SITE PROBLEMS OR UNCOMPENSATED PERSONS ARISING OUT OF TRANSIT
MISHAPS, IS SIMPLY UNWARRANTED.
THANK YOU, SIR.
SENATOR STAFFORD. THANK YOU, MR. WHEELER. THE CHAIR GETS THE
IMPRESSION, ALTHOUGH DELICATELY PUT, YOUR INDUSTRY IS OPPOSED TO BOTO OF
THESE BILLS.
MR. WHEELER. I WILL CONCUR WITH THE CHAIR'S OBSERVATIONS.
SENATOR STAFFORD. WE WILL PERMIT THE PANEL TO DECIDE WHO GOES NEXT.
STATEMENT
HAZARDOUS AND TOXIC WASTE DISPOSAL
KRAEMER HF
GENERAL MILLS INC
104547
HEARING
TRANSCRIPT
SENATE
MR. KRAEMER. I AM DR. HERBERT F. KRAEMER, ENGINEERING POLICY GROUP
OF GENERAL MILLS, INC., MINNEAPOLIS, MINN., APPEARING TODAY ON BEHALF OF
THE NATIONAL ASSOCIATION OF MANUFACTURERS. NAM IS A VOLUNTARY
MEMBERSHIP ORGANIZATION OF MORE THAN 12,000 COMPANIES ENGAGED IN
MANUFACTURING IN THE UNITED STATES. TOGETHER, THESE COMPANIES PRODUCE
MORE THAN 75 PERCENT OF ALL GOODS MANUFACTURED IN THIS COUNTRY. NAM IS
AFFILIATED WITH AN ADDITIONAL 158,000 COMPANIES THROUGH THE NATIONAL
INDUSTRIAL COUNCIL. WE APPRECIATE THIS OPPORTUNITY TO TESTIFY ON S.
1341 AND S. 1480, WHICH HAVE POTENTIAL DIRECT AND INDIRECT IMPACTS ON
MUCH OF AMERICAN INDUSTRY. GOVERNMENT. THE SUBCOMMITTEES SHOULD BE
CAUTIOUS ABOUT RECOMMENDING ANOTHER ENVIRONMENTAL LAW, ANOTHER
ENVIRONMENTAL WILL DISCUSS IN MORE DETAIL. NAM BELIEVES THAT ANY NEEDED
LEGISLATIVE IMPROVEMENTS IN REGARD TO HAZARDOUS WASTE DISPOSAL SITES AND
SPILLS OF HAZARDOUS SUBSTANCES SHOULD BE PURSUED WITHIN THE FRAMEWORK OF
EXISTING ENVIRONMENTAL LAWS.
ON AUGUST 1, 1979, NAM DID FILE A STATEMENT SETTING FORTH OUR GENERAL
VIEWS ON THE BILLS BEING CONSIDERED BY THE SUBCOMMITTEE. BUT TODAY IN
THE TIME ALLOTTED WE WOULD WISH TO COMMENT MORE FULLY ON ONE ASPECT OF
THE LEGISLATION; NAMELY, THE IMPACT OF LEGAL LIABILITY PROVISIONS ON
SMALL BUSINESS. NOW GENERAL MILLS IS A MODERATE SIZED BUSINESS, BUT
MANY OF OUR SUPPLIERS ARE SMALL BUSINESSES, MANY OF OUR CUSTOMERS ARE
SMALL BUSINESSES, AND WE ARE VITALLY CONCERNED ABOUT THEIR FINANCIAL
HEALTH AND WELFARE.
WE HAVE BEEN ASKED BY MANY OF OUR SMALL MANUFACTURING MEMBERS
---THATIS-.NAM.HAS BEEN.ASKED---.TO-COMMENT-PARTICULARLY-ON
THE PROVISIONS OF S. 1341 AND S. 1480 RELATING TO LEGAL LIABILITY.
INASMUCH AS 75 PERCENT OF NAM'S MEMBERSHIP IS MADE UP OF SMALL
BUSINESSES, WE FEEL THAT IT IS IMPERATIVE TO PRESENT THEIR VIEWS
SMALL ENTERPRISES.
IT SHOULD FIRST BE NOTED THAT SMALL BUSINESS IS GENERALLY AT A
DISADVANTAGE UNDER ENVIRONMENTAL LAWS AND REGULATIONS. THE COST OF
POLLUTION CONTROL CAN FALL HEAVILY ON BOTH LARGE AND SMALL COMPANIES IF
THEY ARE CURRENTLY IN A POLLUTION INTENSIVE MANUFACTURING CATEGORY.
HOWEVER, LARGE CORPORATIONS HAVE GREATER MARKETING, TECHNICAL AND LEGAL
RESOURCES AND ARE LESS LIKELY TO FIND THEMSELVES IN A POSITION WHERE
POLLUTION CONTROLS WOULD BE A SERIOUS THREAT TO THEIR SURVIVAL.
FOR THE MEDIUM AND SMALL MANUFACTURERS, HOWEVER, INCLUDING MANY OF
OUR MEMBERS, A DIFFERENT SITUATION EXISTS. SMALL COMPANIES CANNOT
MAINTAIN CLOSE CONTACT WITH THE DEVELOPING REQUIREMENTS AT THE NATIONAL
LEVEL AND DO NOT HAVE THE RESOURCES ANALYZE THE EFFECTS OF AN INTENDED
ACTION ON THEIR COMPANY AND GENERALLY RESULTS IN AN INCOMPLETE
PRESENTATION TO REGULATORY IMPACT OF A HASTY POLLUTION CONTROL PROGRAM
ARE THOSE WHICH ARE MOST LIKELY TO BE IN A POSITION OF BEING FORCED TO
CONSTRUCT ONE.
THERE ARE SEVERAL FACTORS WHICH MAKE THE POLLUTION CONTROL
REQUIREMENTS FALL ESPECIALLY HARD ON THE SMALL MANUFACTURER. ONE OF
THESE FACTORS LIES IN THE INABILITY TO ASSEMBLE THE TECHNICAL AND
FINANCIAL RESOURCES TO ASSESS PROPERLY POLLUTION PROBLEMS AND ARRIVE AT
THE MOST COST EFFECTIVE SOLUTION. THE USE OF CONSULTING FIRMS TO
CHARACTERIZE WASTE AND ARRIVE AT THE MOST ECONOMIC ENGINEERING SOLUTION
TO THE POLLUTION PROBLEMS OF A SMALL FIRM CAN BE PROHIBITIVELY EXPENSIVE
WHEN COMPARED WITH THE ANNUAL PROFITS OF THE COMPANY OR EVEN THE COST OF
THE POLLUTION CONTROL EQUIPMENT WHICH WILL BE REQUIRED.
NOW A NEW FACTOR HAS BEEN PROPOSED WHICH WILL SERIOUSLY AFFECT THE
SMALL ENTERPRISE. BOTH S. 1341 AND S. 1480 CONTAIN PROVISIONS ATTACHING
STRICT LIABILITY FOR DAMAGES RESULTING FROM SPILLS OF HAZARDOUS
SUBSTANCES OR RELEASES FROM HAZARDOUS WASTE DISPOSAL SITES. NEGLIGENCE
NEED NOT BE SHOWN. FAULT OF THE WRONGDOER. FAULT IS A DEVIATION FROM A
CODE OF CONDUCT WHICH AN INDIVIDUAL MUST COMPLY WITH EVEN IF IT IS
BEYOND HIS CAPACITY. STRICT LIABILITY GOES BEYOND THIS TRADITIONAL
THEORY AND ATTACHES LIABILITY IN THE ABSENCE OF FAULT AND DESPITE THE
FACT THAT THE INDIVIDUAL ADHERED TO A REASONABLE STANDARD OF CONDUCT.
THE NATURE OF THE ACTIVITY ITSELF IS SUFFICIENT TO ATTACH STRICT
LIABILITY, HOWEVER, IN THE CASE OF NEGLIGENCE OR AN INTENTIONAL
WRONGDOING, LIABILITY MAY EXTEND BEYOND FORESEEABLE RISKS. THESE BILLS
OFFER NO CONCEPT OF FORESEEABLE CIRCUMSTANCES FOR LIABILITY. THE MORE
TRADITIONAL CONCEPTS OF NEGLIGENCE AND WILLFUL MISCONDUCT ARE THE MOST
THAT CAN BE EXPECTED FROM THESE COMPANIES WHOSE CONTRIBUTIONS TO THE
COMMUNITY ARE SIGNIFICANT BUT ARE CONDUCTED ON A MARGINAL PROFIT TO THE
OWNERS. OTHER PERSONS FOR PERSONAL INJURIES AND ECONOMIC LOSSES. THIS
IMPOSITION OF JOINT, STRICT AND SEVERAL LIABILITY IS COMPOUNDED
EVIDENCE.
SUBSECTION 4(C) PROVIDES THAT, "NOTWITHSTANDING THE ORDINARY
REQUIREMENTS FOR PROOF OF CAUSE IN FACT OR PROXIMATE CAUSE OF DAMAGE,
INJURY, OR LOSS" A PERSON SHALL BE LIABLE FOR ALL MEDICAL EXPENSES IF A
REASONABLE PERSON COULD CONCLUDE THAT ANY INJURY OR DISEASE IS
REASONABLY RELATED TO THE DISCHARGE, RELEASE OR DISPOSAL OF ANY
HAZARDOUS SUBSTANCE.
THE BASIS FOR SUCH CONCLUSION COULD INCLUDE, BUT IS NOT LIMITED TO,
"THE CONSIDERATION OF STATISTICAL CORRELATION AND THE INCREASE OF
INCIDENCE, OF SUCH INJURY OR DISEASE IN THE EXPOSED POPULATION ABOVE
THAT WHICH IS OTHERWISE STATISTICALLY PROBABLE."
AND I FURTHER QUOTE, "THE INABILITY OF A CLAIMANT TO DEMONSTRATE (1)
THE PARTICULAR IDENTITY OF THE SUBSTANCE WHICH CAUSED THE OR DISEASE,
(2) THE PARTICULAR SOURCE OF SUCH SUBSTANCE, (3) THE PATHWAY OF SUCH
SUBSTANCE EN ROUTE TO THE INJURED PARTIES, OR (4) AN EXPLANATION OF THE
ETIOLOGY OF THE SUBSTANCE IN THE INJURED PARTY, SHALL NOT BAR RECOVERY."
CONCEIVABLE MEDICAL EXPENSES INCURRED AS A RESULT -- WHICH NEED NOT BE
PROVEN BY THE CLAIMANT -- OF A POSSIBLE DISCHARGE, DISPOSAL OR RELEASE
OF HAZARDOUS SUBSTANCES WILL HAVE A DEVASTATING EFFECT ON SMALL PRIOR
AND CURRENT OWNERS, LESSEES, GENERATORS, TRANSPORTERS, OR DISPOSERS OF
HAZARDOUS SUBSTANCES. THERE ARE AT LEAST THREE ADVERSE AND UNDESIRABLE
POTENTIAL EFFECTS STEMMING FROM THE LIABILITY PROVISONS:
ONE, THE LIQUIDITY POSITION OF SMALL FIRMS WOULD BE SERIOUSLY
WEAKENED.
TWO, MANY OF THEM WOULD BE FORCED OUT OF THE BUSINESS ALTOGETHER AS
THEY SIZE UP THE IMPLICATIONS OF THIS LIABILITY.
THREE, MANY POTENTIAL GENERATORS, TRANSPORTERS AND DISPOSERS WOULD BE
FORCED TO RECONSIDER AND WITHDRAW THEIR PLANS OF DISPOSAL CAPACITY AS A
RESULT OF COMMUNITY OPPOSITION TO THE NEARBY SITING OF HAZARDOUS WASTE
DISPOSAL SITES, WILL ONLY SERVE PROBLEM.
NOW AGAIN TALKING ABOUT THE SMALL BUSINESSMAN, NOT ONLY WOULD IT BE
IMPOSSIBLE FOR THE SMALL BUSINESSMAN TO ACT AS A SELF-INSURER UNDER SUCH
CONDITIONS, BUT IT WOULD ALSO BE IMPOSSIBLE FOR HIM TO GET LIABILITY
INSURANCE AT AN AFFORDABLE PRICE, OR TO GET INSURANCE AT ALL. THE
QUESTION OF THE AVAILABILITY AND AFFORDABILITY OF INSURANCE FOR
HAZARDOUS WASTE AND HAZARDOUS SUBSTANCE TRANSPORTERS, GENERATORS,
DISPOSERS, AND SO ON, HAS NOT BEEN RESOLVED SATISFACTORILY. THE
AMERICAN INSURANCE ASSOCIATION IN JULY SUBCOMMITTEE HEARINGS IN THE
HOSUE OF REPRESENTATIVES, WARNED THAT, "THE DEMAND FOR INSURANCE
COVERAGE TO SERVICE FEDERAL LIABILITY AND COMPENSATION SYSTEMS MAY
EXCEED THE INDUSTRY'S CAPACITY TO PROVIDE PROTECTION." CONTRIBUTION TO
THIS RISK ASSESSMENT IS EXPECTED TO BE DIFFICULT BECAUSE OF THE
INTRODUCTION OF BROAD NEW CATEGORIES OF CLAIMANTS AND BROAD NEW
CATEGORIES OF COMPENSABLE DAMAGES. AND THIS IS PARAPHRASED FROM THEIR
TESTIMONY. INCLUDE, AND NOT FOR ONSHORE FACILITIES, SOME OF THE
FOLLOWING, AND I AGAIN PARAPHRASE: ALL REMOVAL, CONTAINMENT AND
EMERGENCY RESPONSE COSTS INCURRED BY THE FEDERAL GOVERNMENT OR A STATE;
ALL DAMAGES FOR ECONOMIC AND PERSONAL INJURY LOSS; ALL DAMAGES FROM
LOSS OF PERSONAL PROPERTY AND ITS USE, INCLUDING RELOCATION COSTS; ALL
REASONABLE COSTS OF ASSESSING INJURY TO, LOSS OF, OR DESTRUCTION OF
NATURAL RESOURCES; ALL LOSS OF INCOME OR PROFITS OR IMPAIRMENT OF
EARNING CAPACITY DUE TO LOSS OF PERSONAL PROPERTY OR NATURAL RESOURCES;
ALL MEDICAL EXPENSES, INCLUDING REHABILITATION COSTS, DUE TO PERSONAL
INJURY; ALL DAMAGES RESULTING FROM THE LOSS OF TAXES, ROYALTY IN RENTAL
PROFITS, ALL OF WHICH THE INSURANCE INDUSTRY DOES NOW HAVE GOOD
EXPERIENCE WITH. IT IS APPARENT THAT THE INSURANCE INDUSTRY WILL NOT
PROVIDE FULL COVERAGE FOR PARTICULARLY TROUBLESOME AND INEVITABLY
LITIGIOUS FEATURE, LIABILITY ATTACHING TO ANYONE WHO CAUSED OR
CONTRIBUTED OR IS SUBSTANCE. WHILE IDENTIFICATION OF PERSONS WHO CAUSED
OR ARE CAUSING DISCHARGES MAY NOT PROVE TOO DIFFICULT AT THE SITE WHERE
THE EPISODE OCCURRED, OR, EVEN LATER, IN COURT, THERE WILL BE A GOOD
DEAL OF CONFUSION IN DEFINING AND IDENTIFYING THOSE WHO CONTRIBUTED OR
ARE CONTRIBUTING TO A DISCHARGE OR RELEASE. AND IN OUR PRINTED
TESTIMONY WE GIVE A FURTHER DISCUSSION ON THIS AREA.
WHILE THE LIABILITY PROVISIONS OF S. 1341 AND S. 1480 COMPRISE JUSE
ONE ASPECT OF THE SUPERFUND LEGISLATION WHICH THE SUBCOMMITTEES ARE
CONSIDERING, THEIR POTENTIAL FOR THE SMALL BUSINESSMAN IS ONE OF
FINANCIAL RUIN, IN OUR OPINION. WE URGE THE SUBCOMMITTEES TO STUDY
CAREFULLY THE CAPABILITY AND INCENTIVE OF SMALL ENTERPRISES TO CONTINUE
OPERATIONS WHEN THREATENED WITH SUCH HARSH MEASURES.
I THEREFORE WOULD LIKE TO WIND UP MY COMMENTS AS FOLLOWS IF CONGRESS
DOES DECIDE TO LEGISLATE IN THIS AREA, NAM BELIEVES THAT THE LEGISLATION
SHOULD BE LIMITED TO ABANDONED PRE-RCRA WASTE DISPOSAL SITES. IT MUST
BE REMEMBERED THAT THE PROBLEM PERMANENTLY FIXED BY THE ENACTMENT AND
IMPLEMENTATION OF THE RESOURCE CONSERVATION AND RECOVERY ACT OF 1976.
BECAUSE THE EXISTENCE OF THESE PRE-RCRA WASTE DISPOSAL SITES IS LIMITED
-- AND HOW LIMITED IS OPEN TO A DISCUSSION AT THE MOMENT, SOME PEOPLE
THINK IT IS VERY LIMITED -- ANY LEGISLATIVE REMEDY SHOULD ALSO BE
LIMITED. THE FOLLOWING ARE NAM'S RECOMMENDATIONS FOR SOUND LEGISLATION
AFFECTING PRE-RCRA WASTE DISPOSAL SITES:
ONE, LEGISLATION AIMED AT REMEDYING THE ABANDONED SITES PROBLEM
SHOULD TAKE THE FORM OF AN AMENDMENT TO RCRA.
TWO, THE ENVIRONMENTAL PROTECTION AGENCY SHOULD BE AUTHORIZED TO TAKE
EMERGENCY ACTIONS TO ELIMINATE HAZARDS TO PUBLIC HEALTH RESULTING FROM
PRE-RCRA WASTE DISPOSAL SITES.
THREE, EPA SHOULD BE AUTHORIZED TO RECOVER THE COST OF SUCH
CONTRIBUTIONS TO THE HAZARD.
FOUR, SUCH RECOVERIES SHOULD BE PAID INTO AN EPA REVOLVING
FIVE, THE PROGRAM SHOULD BEGIN WITH MODEST FUNDING -- $20 TO $50
MILLION PER YEAR -- UNTIL EXPERIENCE MAY INDICATE THE NEED FOR GREATER
FUNDING.
SIX, THE LEGISLATION SHOULD CONTAIN A SUNSET PROVISION TO INSURE THAT
CONGRESS THOROUGHLY REVIEWS ITS NECESSITY AFTER 2 YEARS.
SEVEN, COMPENSABILITY FOR INJURY OR DISEASE DUE TO RELEASES FROM
PRE-RCRA DISPOSAL SITES SHOULD BE LIMITED TO CIRCUMSTANCE WHERE SOUND
MEDICAL EVIDENCE ESTABLISHES DISABILITY AND SUFFICIENT EVIDENCE
INDICATES THAT THE DISABILITY WAS A RESULT OF THE HAZARDOUS WASTE
RELEASE.
WE THANK THE SUBCOMMITTEES FOR THIS OPPORTUNITY TO TESTIFY ON THE
APPROPRIATE LEGISLATIVE RESPONSE BY CONGRESS TO THE PROBLEM OF HAZARDOUS
SUBSTANCES AND PRE-RCRA HAZARDOUS WASTE DISPOSAL SITES. THANK YOU.
SENATOR STAFFORD. THANK YOU VERY MUCH, DR. KRAEMER. AS I SAID AT
THE OUTSET, NOW IS THE TIME TO TELL US WHAT YOUR FEELINGS ARE ABOUT THIS
KIND OF LEGISLATION, NOT LATER AFTER WE MAY HAVE
WHOEVER WISHES TO GO NEXT MAY PROCEED.
STATEMENT
COYNE JK PRESIDENT
104551
HEARING
TRANSCRIPT
MR. COYNE. GOOD MORNING. MY NAME IS JAMES K. COYNE. I AM PRESIDENT
OF THE GEORGE S. COYNE CHEMICAL CO. OF PHILADELPHIA, PA., WHICH IS, AS I
SHOULD POINT OUT, A SMALL BUSINESS. AND I AM VERY HAPPY TO HAVE MY
COLLEAGUES FROM LARGER COMPANIES AND CORPORATIONS SECONDING OUR
CONCERNS.
I AM ALSO THE COCHAIRMAN OF THE GOVERNMENT RELATIONS COMMITTEE OF THE
NATIONAL ASSOCIATION OF CHEMICAL DISTRIBUTORS, WHICH IS A NONPROFIT
TRADE ASSOCIATION OF MORE THAN 225 CHEMICAL DISTRIBUTION ORGANIZATIONS,
LARGELY SMALL BUSINESSES ACROSS THE COUNTRY.
BY WAY OF INTRODUCTION, THE COMPANY I REPRESENT HAS DISTRIBUTED
AND ECONOMETRIC MODELING AT THEUNIVERSITY OF PENNSYLVANIA'S WHARTON
SCHOOL, A GRADUATE OF YALE AND HARVARD UNIVERSITIES, AND A
COUNTY, PA.
I SHOULD ALSO POINT OUT THAT I, PERSONALLY, IDENTIFIED FOR THE
FEDERAL PROSECUTORS THE FIRST INDIVIDUAL CHEMICAL POLLUTER EVER
CONVICTED UNDER THE PROVISION OF THE CLEAN WATER ACT. MY TESTIMONY WAS
CENTRAL TO THE CONVICTION OF THIS "MIDNIGHT DUMPER" AND LED TO MY BEING
PERSONALLY COMMENDED BY THE REGIONAL ADMINISTRATOR OF THE EPA.
I HAVE ALSO BEEN A CONSULTANT TO MAJOR U.S. CITIES ON SOLID WASTE
DISPOSAL AND RESOURCE RECOVERY SYSTEMS. IN SHORT, I FEEL PERSONALLY
QUALIFIED TO PARTICIPATE IN THE PANEL ON THE PROPER RESPONSE TO PROPOSED
SUPERFUND LEGISLATION.
FIRST, I WOULD LIKE TO SPEND A FEW MOMENTS DISCUSSING SOME PROBLEMS
WE DON'T HAVE TODAY.
ONE, WE DO NOT HAVE MAJOR PROBLEMS NEEDING TECHNICAL SOLUTIONS. THE
TECHNIQUES TO DISPOSE OF HAZARDOUS WASTES HAVE BEEN DISCOVERED. SOME
MAY ONLY BE PARTIALLY SCALED UP OR AT A PILOT PLANT STAGE, BUT THE
TECHNIQUES EXIST AND ARE VIABLE. ALL CURRENT HAZARDOUS CHEMICAL
ACCIDENTS AND SPILLS OCCUR IN SITUATIONS WHERE LIABILITY CAN BE
EFFECTIVELY FIXED, DAMAGES CAN BE QUICKLY AWARDED AND CLEANUP CAN BE
EFFICIENTLY HANDLED.
THREE, WE DO NOT HAVE AN ECONOMIC PROBLEM. MY OWN EXPERIENCE IS THAT
CONSUMERS OF HAZARDOUS CHEMICALS FULLY RECOGNIZE THEIR RESPONSIBILITY TO
DISPOSE OF THEIR WASTE PRODUCTS AND, GIVEN UNIFORM NATIONWIDE STANDARDS,
THE MARKETPLACE WILL EFFECTIVELY ALLOW SUPPLY AND DEMAND TO DETERMINE
THE APPROPRIATE PRICE FOR DISPOSAL AND CLEAN-UP SERVICES. FURTHERMORE,
OUR OWN ASSOCIATION, THE NATIONAL ASSOCIATION OF CHEMICAL DISTRIBUTORS,
HAS DEVELOPED A UNIQUE INSURANCE PACKAGE FOR OUR MEMBERS TO ASSURE THAT
THEY ARE PROVIDED WITH COVERAGE ON A CLAIMS-MADE BASIS, EVEN IF AN
ALLEGED ACCIDENT OCCURRED DECADES AGO. GRANTED, THIS IS VERY EXPENSIVE
AND/OR ENVIRONMENTAL PROBLEM. THIS IS, UNFORTUNATELY, PARTIALLY TRUE --
EXPECIALLY TO THE EXTENT THAT ORPHAN DUMP SITES EXIST THAT THE CURRENT
CONFUSION SURROUNDING APPROVED DISPOSAL SITES CAUSES WASTE GENERATORS TO
DEFER EFFECTIVE DISPOSAL ACTION AND ALLOWS ILLEGAL AND UNLICENSED
DISPOSAL FIRMS TO TAKE ADVANTAGE OF THE NONCONFORMING REGULATIONS.
ALLOW ME TO GIVE A FEW SMALL EXAMPLES. FIRST, JUST SOUTH OF
PHILADELPHIA AN ILLEGAL DUMP SITE HAS BEEN CLOSED, FORCING THE OPERATOR
INTO BANKRUPTCY, ALTHOUGH THE LAND WAS BOUGHT AT A SHERIFF'S SALE BY THE
LOCAL UTILITY TO ALLOW FOR FURTHER EXPANSION OF ITS NEIGHBORING
GENERATOR STATION. THE UTILITY NOW RESISTS BEING FORCED TO CLEAN UP THE
SITE, ESPECIALLY IN LIGHT OF ITS CLAIM THAT THE ENERGY CONSUMERS IN THE
AREA HAVE ENOUGH BURDENS. THUS, THIS ORPHAN HAS BEEN PUT ON THE
DOORSTEP OF THE PUBLIC, AND WILL STAY THERE UNTIL SOME COURT FINDS THE
MONEY TO HAVE IT CLEANED UP.
SECOND, JUST LAST WEEK I WAS CALLED BY A MAJOR CUSTOMER, ONE OF THE
COUNTRY'S LARGEST PHARMACEUTICAL FIRMS, TO HELP THEM DISPOSE OF 20 DRUMS
OF UNIDENTIFIED WASTES. SOMEONE JUST TO REMOVE THEM, BUT THE CURRENT
CONCERN IN PENNSYLVANIA OVER FORTHCOMING UNDEFINED REGULATIONS CAUSED
THE DISPOSAL COMPANIES TO HAVE A WAIT-AND-SEE ATTITUDE. THEY WERE EVEN
UNWILLING TO HAVE THE DRUMS ANALYZED UNTIL REGULATIONS ARE CODIFIED.
THUS, I THINK IT IS CLEAR THAT WHAT WE NEED IS, FIRST OFF, SOME
FEDERAL FUNDING TO CLEAN UP THE ORPHAN DUMP SITES. I THINK EVERYONE IS
UNANIMOUS ON THAT. BUT JUST AS THE LOCAL UTILITY IN PENNSYLVANIA SHOULD
NOT BE FINED TO PAY FOR THE CLEAN-UP BECAUSE IT OWNS THE LAND, NEITHER
SHOULD THE CHEMICAL INDUSTRY BE SINGLED OUT. MANY OF THE OLDEST DUMP
SITES, FOR EXAMPLE, WERE CREATED UNDER GOVERNMENT GUIDANCES THREE
DECADES AGO AS WE EXPANDED CHEMICAL PRODUCTION DURING WORLD WAR II. TO
PLACE THE
SECOND, WE NEED TIMELY CLARIFICATION OF RCRA REGULATION AND A
NATIONAL OR REGIONAL DEMONSTRATION DISPOSAL SITE THAT CAN HELP OUR
IN ECONOMETRIC TERMS, WHAT HAS OCCURRED IS THAT A NEW SERVICE HAS
BEEN ADDED TO THE ROSTER OF GOODS AND SERVICES THAT OUR NATION NOW
PRODUCES -- NOT UNLIKE THE HUNDREDS OR THOUSANDS OF NEW GOODS AND
SERVICES MANDATED BY OUR FREE ECONOMY EACH YEAR. THAT SERVICE IS A
SPECIALIZED ONE, OF COURSE, BUT IT WILL GIVE ALL USERS OF HAZARDOUS
CHEMICALS A SAFE, EFFECTIVE DISPOSAL ALTERNATIVE. FOR THE PAST DECADE
THE MARKETPLACE HAS BEEN DEFINING AND REDEFINING THE NEEDS OF CONSUMERS
OF THIS NEW SERVICE AND SHAPING AND RESHAPING THE CHARACTERISTICS OF
THEIR RESPONSES TO THESE NEEDS.
SOME MAY SAY THAT THIS IS A SLOW PROCESS, BUT I AM SURE THAT THE
EVIDENCE SUGGESTS THAT WHEN THE FEDERAL GOVERNMENT GETS INVOLVED -- FOR
EXAMPLE, WITH THE ENERGY PLAN -- EFFECTIVE RESPONSE TIMES TO A NATIONAL
PROBLEM ARE NOT NECESSARILY SHORTENED.
IN FACT, THERE ARE HUNDREDS OF WELL-FINANCED AND PROFESSIONAL
DISPOSAL ORGANIZATIONS EAGER TO SEE THE CONTINUING FEDERAL ANALYSIS OF
THE PROBLEM ENDED SO THAT THE QUESTION OF WHICH DISPOSAL AND CLEAN-UP
TECHNIQUES WILL BE BLESSED CAN BE ANSWERED.
THEN THE AMERICAN INVESTOR AND ENTREPRENEUR, MANY OF WHOM MAY BE
CHEMICAL DISTRIBUTORS LIKE MYSELF, CAN GET TO THE TASK OF PROVIDING THE
SERVICE NEEDED TO FILL THE NEED.
MY ONLY HOPE IS THAT YOUR COMMITTEE DOES NOT SELL THE AMERICAN
BUSINESSMAN SHORT. WITH CLEAR REGULATIONS, ENFORCEMENT PROCEDURES AND
MINIMAL GUIDANCE HE CAN GE THE JOB DONE. A SUPERFUND WILL ONLY
DISCOURAGE HIM AND THE WHOLE INDUSTRY, EXACERBATING THE GROWING TREND OF
POINTING FINGERS, LAYING BLAME AND TRYING TO SOLVE OUR PROBLEMS BY
THROWING MONEY AT THEM. IF WE WANT TO HAVE A NATION OF BUSINESSMEN, AND
NOT BUREAUCRATS, WE MUSTLIMIT THIS SUPERFUND LEGISLATION TO THE
PRACTICAL PROBLEM OF ORPHAN DUMP SITE CLEANUP.
IN CLOSING, I WANT TO THANK YOU FOR ALLOWING THIS ONE AMERICAN
BUSINESSMAN TO HAVE AN OPPORTUNITY TO PARTICIPATE IN THE LEGISLATIVE
PROCESS. IT HAS BEEN A GREAT HONOR, AND I THANK YOU.
SENATOR STAFFORD. THANK YOU VERY MUCH, MR. COYNE.
NOW, MR. COX, I KNOW YOU WERE ASKED TO BE A SEPARATE WITNESS, BUT IF
YOU DON'T OBJECT, IN VIEW OF THE SITUATION, WE WOULD INVITE YOU TO GO
AHEAD AS A MEMBER OF THE PANEL.
STATEMENT
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 001 OF 11
COX RM PRESIDENT
GILBERT SPRUANCE CO.
104553
HEARING
TRANSCRIPT
SENATE
MR. COX. MR. CHAIRMAN, MY NAME IS ROBERT COX, AND I AM THE OWNER AND
PRESIDENT OF THE GILBERT SPRUANCE CO. OF PHILADELPHIA, PA. I JUST
LEARNED MR. COYNE IS A NEIGHBOR OF MINE. WE DIDN'T GET TOGETHER BEFORE,
BUT NOW WE KNOW EACH OTHER.
STATEMENT
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 002 OF 11
COX RM PRESIDENT
GILBERT SPRUANCE CO.
104554
HEARING
TRANSCRIPT
SENATE
WITH ME INTHE AUDIENCE IS LARRY THOMAS, THE EXECUTIVE DIRECTOR OF THE
NATIONAL PAINT & COATINGS ASSOCIATION.
MY COMPANY HAS BEEN LOCATED IN THE SAME AREA IN PHILADELPHIA SINCE
1922. MY FATHER WAS PRESIDENT BEFORE ME, AND MY SON HAS BEEN IN THE
BUSINESS FOR 6 YEARS. HE HAS HAD, IN MY OPINION, A CONDENSED LEARNING
EXPERIENCE IN THOSE 6 YEARS, EQUIVALENT TO ABOUT 20 YEARS FOR ME,
ESPECIALLY IN AREAS OF REGULATION. I SOMETIMES WONDER WHY HE STAYS IN
THE BUSINESS, BUT HE DOES.
WE PRODUCE ABOUT 1 1/2 MILLION GALLONS OF COATING AT AN ANNUAL SALES
LEVEL OF $5 TO $6 MILLION. WE HAVE ABOUT 70 EMPLOYEES AND A PAYROLL OF
$1.5 MILLION AND SPEND ABOUT $3 MILLION FOR RAW MATERIALS. OUR NET
PROFIT AVERAGES ABOUT 2 TO 3 PERCENT OF SALES AND IS REPRESENTATIVE OF
OTHER SMALL PAINT BUSINESSES IN OUR INDUSTRY. WE GENERATE PAINT PROCESS
WASTE IN QUANTITIES OF ABOUT 3 TO 4 PERCENT OF THE FINISHED PRODUCT.
THIS, TOO, SEEMS TO BE ROUGHLY EQUIVALENT TO SOME INDUSTRY FIGURES. FOR
OVER 10 YEARS AT SPRUANCE, MY COMPANY, WE HAVE RECLAIMED PROCESS DIRTY
SOLVENT BY DISTILLATION AND HAVE DISPOSED OF THE NONRECOVERABLE WASTE TO
CONTRACTORS WHO ARE EXPERIENCED, REPUTABLE AND HAVE BEEN IN BUSINESS FOR
SOME TIME. I MIGHT ADD THAT OUR WASTE DISPOSAL COSTS ARE OVER 25 TIMES
WHAT THEY WERE 10 YEARS AGO.
IN ADDITION TO APPEARING ON BEHALF OF MY OWN COMPANY, I AM PLEASED TO
APPEAR ON BEHALF OF AND AS PRESIDENT OF THE NATIONAL PAINT & COATINS
ASSOCIATION, WHICH REPRESENTS OVER 900 OPERATORS, THE MAJORITY OF WHICH
ARE SMALL OR MIDDLE-SIZED. I BELIEVE MY VIEWS REFLECT THE CONCERNS OF
THESE AND RELATED COMPANIES WHO USE CHEMICALS AS A PART OF THEIR
PRODUCTION PROCESS TO MAKE A WIDE VARIETY OF CONSUMER AND INDUSTRIAL
PRODUCTS. HOPEFULLY WE WILL BE RESPONSIVE TO THE QUESTIONS YOU RAISED
IN YOUR TELEGRAM.
LET ME BEGIN BY SAYING THAT WHILE I HAVE READ AND REVIEWED S. 1341
AND S. 1480, I DO NOT PRETENT TO BE AN EXPERT ON EVERY PROVISION OR EVEN
TO COMPLETELY UNDERSTAND ALL THE IMPLICATIONS OF THE BILLS.
I BELIEVE I CAN PROVIDE THE MOST USEFUL INFORMATION BY FOCUSING ON
THE PRACTICAL EFFECTS THIS LEGISLATION COULD HAVE ON SMALL
MANUFACTURERS. WHAT IS FOREMOST IN OUR MINDS IS THE QUESTION OF OUR
LIABILITY WITH RESPECT TO RELEASES OF HAZARDOUS SUBSTANCES FROM
ABANDONED AND INACTIVE WASTE SITES.
IT APPEARS THAT, UNDER EITHER BILL, GENERATORS OF HAZARDOUS WASTES,
AS WELL AS OWNERS OR OPERATORS, COULD BE HELD STRICTLY LIABLE FOR
DAMAGES IF THEIR WASTES ARE SAID TO HAVE CAUSED OR CONTRIBUTED TO AN
INCIDENT.
ACCORDING TO S. 1341, STRICT LIABILITY MEANS LIABILITY REGARDLESS OF
NEGLIGENCE. KNOWLEDGE OR GOOD-FAITH EFFORTS. IT MEANS LIABILITY
REGARDLESS OF INTENT OR CIRCUMSTANCES, DEGREE OF CARE OR ANY REASONABLE
PRECAUTIONS.
TOTAL FINANCIAL LIABILITY COULD BE PLACED ON A MANUFACTURER EVEN
THOUGH HIS WASTE DISPOSAL PRACTICES WERE NOT NEGLIGENT AND, IN FACT, MET
ALL LEGAL REQUIREMENTS. SINCE THE COST FOR CLEANUP ALONE CAN RUN INTO
THE MILLIONS OF DOLLARS -- THE CLEANUP COST OF LOVE CANAL, FOR EXAMPLE,
HAS BEEN ESTIMATED AT $30 MILLION -- IT MUST BE OBVIOUS THAT SMALL OR
MIDDLE-SIZED COMPANIES LACK THE RESOURCES TO MEET SUCH OBLIGATIONS.
STATEMENT
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 003 OF 11
COX RM PRESIDENT
GILBERT SPRUANCE CO.
104555
HEARING
TRANSCRIPT
SENATE
FOR EXAMPLE, APPROXIMATELY 650 OF OUR MEMBERS HAVE SALES OF UNDER $20
MILLION PER YEAR AND APPROXIMATELY 400 OF THESE ARE UNDER $5 MILLION IN
SALES ANNUALLY. THROUGH A GENERATION AT SPRUANCE WE GOT OUR NET WORTH
UP TO $1 1/2 MILLION, AND I CAN ENVISION THAT BEING WIPED OUT IN A
SINGLE STROKE. FOR US SMALLER FELLOWS, YOU KNOW THE ICE IS THINNER
WHERE WE WALK. WE WORRY ABOUT SURVIVAL NOT EARNINGS PER SHARE. THE
CLIMATE OF INSECURITY ASSOCIATED WITH SUCH LIABILITY MAKES US THINK
ABOUT THE RISK THAT WE HAVE IN CONTINUING TO DO BUSINESS.
IN THE CASE OF ABANDONED SITES, HOLDING SUCH COMPANIES STRICTLY
LIABLE IS NOT ONLY FINANCIALLY UNREASONABLE, IT IS UNJUST. IT FAILS TO
CONSIDER THAT AN INCREASED AWARENESS OF THE PROBLEM HAS DEVELOPED OVER
THE YEARS WITH A CONCURRENT RISE IN TECHNICAL KNOW-HOW. WE THINK THE
EDITORIAL WHICH APPEARED IN THE WASHINGTON POST ON JUNE 23 DISCUSSING
COSTS OF CLEANUP AND THE PUNISHMENT OF POLLUTORS WAS RIGHT. THE
EDITORIAL STATED THAT "SUCH PUNISHMENT," AND I QUOTE:
. . .IS NOT EQUITABLE IN THOSE FRUSTRATING SITUATIONS WHERE THE WASTE
DISPOSAL WAS DONE IN ACCORD WITH THE LAWS OF THE TIME. IN SUCH CASES
OUT OF NECESSITY OR FAIRNESS, THE PUBLIC WILL HAVE TO BEAR MUCH OF THE
COST.
WE BELIEVE THAT WHAT IS NEEDED WITH RESPECT TO ABANDONED WASTE SITES
IS A CLEAR RECOGNITION THAT THESE ARE BROAD-BASED SOCIAL CONCERNS AND
THAT A BROAD-BASED, FEDERAL-STATE FUND, WHETHER STRICTLY FROM
APPROPRIATIONS OR COMPLEMENTED BY A FEE SYSTEM, IS NEEDED TO DEAL
QUICKLY AND EFFECTIVELY WITH THIS MAJOR CHALLENGE. WITH RESPECT TO
OWNERS AND OPERATORS OR GENERATORS WHOSE WASTES ARE FOUND AT A PROBLEM
SITE, A NUMBER OF FACTORS SHOULD BE TAKEN INTO ACCOUNT IN ESTABLISHING
LIABILITY.
IN ASSESSING PRIVATE PARTY LIABILITY, CONSIDERATION SHOULD BE GIVEN
TO SUCH FACTORS AS POSSIBLE NEGLIGENCE, WILLFUL MISCONDUCT OR ILLEGAL
ACTIVITY. ALSO, THE EFFECT ON THE BUSINESS' ABILITY TO CONTINUE TO
OPERATE, ITS FINANCIAL RESOURCES AND COMPARATIVE CONTRIBUTIONS TO THE
INCIDENT SHOULD BE EVALUATED.
AGAIN FOR SMALLER BUSINESSES, I THINK JUST THE COSTS OF A LEGAL
DEFENSE, EVEN IF WE FEEL WE ARE NOT RESPONSIBLE AND ARE FOUND TO BE NOT
RESPONSIBLE, CAN BE A MAJOR DRAIN ON OUR FINANCIAL RESOURCES.
IN THIS WAY AN EQUITABLE SYSTEM FOR DETERMINING LIABILITY CAN BE
ESTABLISHED. IN THOSE INSTANCES WHERE PRIVATE RESOURCES ARE NOT
SUFFICIENT, THE FUND WOULD COVER THE COSTS INVOLVED.
BEFORE LEAVING THIS SUBJECT OF LIABILITY, I WANT TO COMMENT ON S.
1480'S PROVISIONS FOR THE LOSS OF PERSONAL PROPERTY AND MEDICAL
EXPENSES. INNOCENT INDIVIDUALS WHO HAVE BEEN INJURED DESERVE TO BE
COMPENSATED, BUT PERHAPS THERE ARE BETTER MEANS THAN THROUGH THIS
LEGISLATION TO ADDRESS THE PROBLEM. FOR EXAMPLE, I DO HAVE SOME CONCERN
THAT BECAUSE OF HIGH COSTS AND LIMITED RESOURCES SUCH COMPENSATION MAY
BE AT ODDS WITH SECURING ABANDONED WASTE SITES.
ALSO, WE ARE CONCERNED ABOUT S. 1480'S PROPOSED TEST FOR DETERMINING
THE CASUAL LINK BETWEEN THE RELEASE OF CHEMICALS AND MEDICAL INJURY.
THE TEST APPEARS TO BE SO WEAK AS TO EXPOSE EITHER PRIVATE PARTIES OR
THE FUND TO HUGE, UNSUBSTANTIATED DAMAGE CLAIMS. SUCH RECOVERY WOULD BE
INAPPROPRIATE AND COULD DISSIPATE THE FUND. PERHAPS EVEN WORSE, SUCH A
TEST COULD LEAD TO ILL-FOUNDED ACTION ON THE PART OF THE PUBLIC IN
REACTION TO ERRONEOUS CONCLUSIONS AS TO THE CAUSE OF INJURY.
STATEMENT
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 004 OF 11
COX RM PRESIDENT
GILBERT SPRUANCE CO.
104556
HEARING
TRANSCRIPT
SENATE
ANOTHER ISSUE OF MAJOR CONCERN TO US IS THE QUESTION OF HOW THE FUND
WOULD BE ESTABLISHED. IT IS MY UNDERSTANDING THAT THE PROPOSED FEE
SYSTEM'S PRACTICAL EFFECT ON THE PAINT AND COATINGS INDUSTRY WOULD BE
SUBSTANTIAL AND WOULD PLACE US AT A COMPETITIVE DISADVANTAGE.
UNDER S. 1480'S BROAD DEFINITION OF HAZARDOUS SUBSTANCE AND EXTENSIVE
COVERAGE OF MANUFACTURERS, IMPORTERS, OR GENERATORS, I CAN FORESEE MY
COMPANY BEING CHARGED THREE TIMES: (1) AS A PASS-THROUGH COST FROM OUR
RAW MATERIAL SUPPLIERS WHOSE MATERIALS ARE CLASSIFIED AS HAZARDOUS
SUBSTANCES; (2) ON THE HAZARDOUS WASTES WE GENERATE; AND (3) EVEN ON
THE PAINTS AND COATINGS WE MANUFACTURE.
SUCH A SYSTEM WOULD, OF COURSE, COST INDUSTRY AND EVENTUALLY THE
PUBLIC MORE THAN JUST THE BASIC PER-UNIT FEE. ADDITIONAL EXTENSIVE
RECORDKEEPING WOULD BE INVOLVED NOT ONLY FOR THE GOVERNMENT BUT FOR
VIRTUALLY ALL COMPANIES EITHER IMPORTING, MANUFACTURING, OR USING
CHEMICALS. IN OUR INDUSTRY IF PAINT WASTES ARE CLASSIFIED AS HAZARDOUS
WASTES, AS NOW PROPOSED IN RCRA REGULATIONS, ALL PAINT MANUFACTURERS AND
THEIR MANY INDUSTRIAL CUSTOMERS WOULD BE SUBJECT TO FEE COLLECTION AND
ALL THE RELATED ADMINISTRATIVE REQUIREMENTS.
WE QUESTION WHETHER DIRECT PUBLIC FUNDING THROUGH FEDERAL AND STATE
APPROPRIATIONS MIGHT BE LESS COSTLY AND LESS BURDENSOME AND MIGHT BETTER
SERVE THE PUBLIC INTEREST. WE URGE THAT THIS AND OTHER OPTIONS BE FULLY
EXPLORED BEFORE A FEE SYSTEM IS ESTABLISHED.
WE RECOMMEND THAT THE LEGISLATION FOCUS ON THE UNIQUE PROBLEM OF
ABANDONED AND INACTIVE WASTE SITES, AND WE RECOGNIZE THAT IF A DECISION
IS MADE TO COLLECT FEES FROM INDUSTRY A FEE PLACED ON HAZARDOUS WASTES
WOULD SERVE AS A GOOD INCENTIVE TO RECYCLING, REUSE, AND CONSERVATION.
AGAIN, FROM THE PERSPECTIVE OF A SMALLER BUSINESSMAN, WE SHOULD KEEP
IN MIND THE NEGATIVE COMPETITIVE FACTORS. SINCE LARGER COMPANIES WITH
MORE CAPITAL AND MORE TECHNICAL RESOURCES MIGHT BE BETTER ABLE TO ENGAGE
IN THESE CONSERVATION MEASURES, THEY MAY NOT HAVE TO PAY FEES, PLACING
SMALLER MANUFACTURERS AT A DISADVANTAGE. THUS, SPEAKING FOR MYSELF AS A
SMALL MANUFACTURER, A FEE SYSTEM ON CHEMICAL FEEDSTOCKS AS PROPOSED IN
S. 1341 WOULD BE MORE EQUITABLE. AT ANY RATE, IF A FEE SYSTEM IS
ESTABLISHED, SOME ALLOWANCE SHOULD BE MADE SO THAT INDUSTRIES SUCH AS
OURS ARE NOT CHARGED THREE TIMES.
BACKING UP FOR JUST A MOMENT, THE OBVIOUS ADVANTAGES OF PUTTING A FEE
ON THE WASTE IS AN INCENTIVE TO DO BETTER WITH REGARD TO OUR WASTES.
BUT SECOND, AS A SMALL FELLOW, IF THE FEE WERE PUT ON EACH UNIT OF RAW
MATERIALS THAT CAME TO US, OBVIOUSLY THEN WE WOULD BE EQUITABLY TREATED
BECAUSE EACH POUND OR EACH GALLON THAT CAME TO US WOULD BE SO CHARGED,
AND LARGER FELLOWS WHO COMPETE WITH US WOULD BE EQUALLY CHARGED.
IN TURNING TO THE QUESTION OF RELEASES OF HAZARDOUS SUBSTANCES SUCH
AS SPILLS, AGAIN THE BROAD DEFINITIONS OF HAZARDOUS SUBSTANCES AND
RELEASES PRESENT PROBLEMS FOR US. FOR EXAMPLE, SINCE BOTH OUR PRODUCTS
AND WASTES MAY BE INCLUDED AT THIS STAGE, WE CANNOT PREDICT WHETHER WE
COULD ESTABLISH AND MAINTAIN THE FINANCIAL RESPONSIBILITY REQUIRED. WE
DO NOT KNOW WHETHER SUFFICIENT INSURANCE WOULD BE AVAILABLE OR WHETHER
THE RATES WOULD BE PROHIBITIVE, ESPECIALLY IN LIGHT OF STRICT LIABILITY
AND SINCE VIRTUALLY ALL FORMS OF PROPERTY DAMAGE AND PERSONAL INJURY ARE
COVERED.
STATEMENT
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 005 OF 11
COX RM PRESIDENT
GILBERT SPRUANCE CO.
104557
HEARING
TRANSCRIPT
SENATE
DR. KRAEMER, I THINK, ADDRESSED THAT SUBJECT A BIT EARLIER AND POSED
THE PROBLEM. MR. COYNE TELLS US THAT HIS ASSOCIATION HAS SOLVED THAT, I
MIGHT BE JOINING YOUR ASSOCIATION.
MR. COYNE. IT IS AN EXPENSIVE SOLUTION.
MR. COX. WE ALSO WONDER WHETHER THE PUBLIC INTEREST REALLY IS SERVED
BY SETTING SUCH BROAD DEFINITIONS FOR HAZARDOUS SUBSTANCES AND RELEASES.
IT MAY BE MORE RESPONSIBLE TO COVER ONLY THOSE HIGHLY TOXIC MATERIALS
AND RELEASES WHICH CLEARLY CAN BE EXPECTED TO PRODUCE SERIOUS
ENVIRONMENTAL OR HEALTH CONSEQUENCES. WE URGE, THEREFORE, THAT THIS
COMPREHENSIVE COVERAGE BE THOROUGHLY EVALUATED IN TERMS OF NEED AND
EFFECTIVENESS AND IN TERMS OF THE OVERALL PUBLIC INTEREST.
CERTAINLY WE HAVE OTHER THOUGHTS AND CONCERNS ABOUT THIS COMPLEX
LEGISLATION, BUT I HOPE I HAVE AT LEAST HIGHLIGHTED SOME OF OUR
PRINCIPAL ONES. I WANT YOU TO KNOW THAT WE SUPPORT A FUND FOR ABANDONED
AND INACTIVE WASTE SITES AND OFFER OUR CONTINUED PARTICIPATION IN
DEVELOPING SENSIBLE SOLUTIONS.
FINALLY IT SEEMS TO ME IN REFLECTING AND REREADING MY STATEMENT AND
SO FORTH, THAT WE SHOULD SUGGEST THAT THE THREE COMPONENTS IN THIS BILL
-- OIL SPILLS, PERSONAL PROPERTY AND INJURY, AND ABANDONED WASTE SITES
-- ARE REALLY THREE SEPARATE ENTITIES THAT MUST BE TREATED SEPARATELY.
AND I GET THE IMPRESSION MYSELF, HAVING READ AND REREAD THE BILLS AND
GONE THROUGH IT, THAT WHAT IS BEING CREATE1 HERE IS A GIANT INSURANCE
COMPANY IN WHICH WE, AS A CHEMICAL DEPENDENT INDUSTRY, PAY THE PREMIUMS,
BUT WE DERIVE NO PROTECTION. AT LEAST IF THERE WAS SOME TRADEOFF
WHEREBY WE PAID A FEE AND WE WERE PROVIDED WITH THE PROTECTION OF AN
INSURANCE COMPANY, THAT CERTAINLY WOULD BE MUCH MORE PALATABLE.
WITH THAT OBSERVATION, THANK YOU VERY MUCH FOR ALLOWING ME TO
TESTIFY. I HOPE THAT THE COMMITTEE CAN ARRIVE AT SOMETHING THAT IS
USEFUL TO ALL OF US.
SENATOR STAFFORD. THANK YOU VERY MUCH, MR. COX.
THE CHAIR IS GOING TO TAKE ABOUT A 3- OR 4-MINUTE BREAK; THEN WE
WILL HAVE SOME QUESTIONS FOR OUR WITNESSES. I WILL REITERATE I THANK
ALL FOUR OF YOU FOR BEING HERE AND HELPING THIS SUBCOMMITTEE IN THE
DIFFICULT TASK OF DECIDING PRECISELY WHAT WE SHOULD DO, IF ANYTHING, IN
THIS FIELD OF HAZARDOUS SUBSTANCES. WE WILL TAKE A VERY SHORT BREAK AND
RESTART IN ABOUT 4 OR 5 MINUTES.
(BRIEF RECESS.)
SENATOR STAFFORD. IF THE PANEL IS READY TO RESUME, THE CHAIR HAS A
FEW QUESTIONS WE WILL ASK YOU TO RESPOND TO, AND THEN WE HAVE SOME MORE
WHICH WE THINK MIGHT BEST BE ANSWERED IN WRITING, IF THAT'S AGREEABLE TO
THE PANEL, SO YOUR ANSWERS PRECISE TO THE QUESTIONS WE HAVE. I
UNDERSTAND THAT IS AGREEABLE TO THE PANEL.
MR. WHEELER. YES; IT IS FOR ME.
SENATOR STAFFORD. ALL RIGHT, WE APPRECIATE THAT.
THE CHAIR WILL ADDRESS ITS FIRST QUESTION TO DR. KRAEMER. ALTHOUGH
THE GENERAL RULE OF LAW IS TO APPLY A NEGLIGENCE STANDARD TO MOST
ACTIVITIES, THOSE WHO ENGAGE IN HAZARDOUS ACTIVITIES ARE HELD TO A
STRICT LIABILITY. THIS IS THE RULE, THE CHAIR BELIEVES, OF COMMON LAW
DEVELOPED OVER CENTURIES. DO YOU BELIEVE THAT THE MANUFACTURE,
TRANSPORT, AND DISPOSAL OF SUBSTANCES LIKE PESTICIDES, HEAVY METALS, AND
OTHER TOXIC CHEMICALS ARE HAZARDOUS ACTIVITIES, AND IF YOU DO NOT, WOULD
YOU STATE THE REASONS?
STATEMENT
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 006 OF 11
COX RM PRESIDENT
GILBERT SPRUANCE CO.
104558
HEARING
TRANSCRIPT
SENATE
MR. KRAEMER. I WOULD LIKE TO ADDRESS A PARTIAL ANSWER TO THIS AND
POSSIBLY ADD TO IT WITH SOME WRITTEN MATERIAL.
I WOULD LIKE TO POINT OUT THAT RCRA, FOR EXAMPLE, IN THE COMING
REGULATIONS, IS VERY BROAD. WE ARE DEFINING HAZARDOUS SUBSTANCES MUCH
BEYOND THE FORMER CONCEPT OF TRUE RISK, TRUE PROBLEM AREA. I WOULD LIKE
TO GIVE AN EXAMPLE OUT OF OUR INDUSTRY WHERE THE STRICT DEFINITION OF A
HAZARDOUS SUBSTANCE IS SOMETHING YOU MIGHT DISAGREE IS REALLY HAZARDOUS.
AS AN EXAMPLE, UNDER THE RCRA REGULATIONS TO BE PROMULGATED, A MATERIAL
WITH A PH OF LESS THAN 3 IS CONSIDERED TO BE HAZARDOUS. SOME COLA
DRINKS -- COCA COLA -- HAVE A PH OF 2 1/2. IF THESE DRINKS WERE NOT
COVERED BY FOOD AND DRUG LAWS -- IN OTHER WORDS, IF IT WERE A MATERIAL
LIKE THAT -- WE WOULD HAVE TO CONCLUDE THAT THAT MATERIAL IS HAZARDOUS
ACCORDING TO THE DEFINITION. ALSO, I COULD CITE PICKLES, LEMON JUICE;
THESE ARE ALL THINGS WHICH COME UNDER THIS NEW CONCEPT OF HAZARD.
SO FROM OUR VIEWPOINT, IT SEEMS WE NEED TO BE A LITTLE MORE
DISCRIMINATING AS TO WHAT REALLY IS A TRUE HAZARD, SUCH AS PESTICIDES.
THE REGULATIONS ARE QUITE CLEAR AS TO HOW PESTICIDES ARE TO BE HANDLED.
I THINK WE FULLY CONCUR THAT DANGEROUS MATERIALS NEED MUCH MORE DETAILED
PROCEDURES AND REGULATIONS THAN SOMETHING SUCH AS VINEGAR, WHICH WE ARE
WILLING TO DRINK IF IT WERE SHOWN TO BE FREE OF BACTERIA, BUT WHICH
MIGHT BE A WASTE MATERIAL BECAUSE OF A LEGAL CLASSIFICATION.
SENATOR STAFFORD. OF COURSE, ONE DOCTOR AT LEAST HAS FOUND THAT
VINEGAR MIXED WITH HONEY IS A REMEDY FOR ALMOST EVERYTHING.
THANK YOU, DR. KRAEMER.
I HAVE A QUESTION NOW FOR ANY OF THE PANEL WHO MAY WISH TO RESPOND.
MOST OF YOU SEEM TO HAVE OPPOSED, FIRST, ANY CHANGE IN THE EXISTING
LIABILITY SYSTEM AND, SECOND, ANY NEW SUPERFUND TO PAY VICTIMS OF TOXIC
SUBSTANCES. IS IT ALSO YOUR VIEW THEN THAT THE VICTIMS -- THE RESIDENTS
OF LOVE CANAL, THE DAIRY FARMERS OF MICHIGAN, AND SO ON -- MUST BEAR
THESE RISKS AS A PART OF 20-CENTURY LIFE? HOW WOULD YOU PROPOSE TO HELP
THESE PEOPLE, IF YOU WOULD, MANY OF WHOM HAVE LOST THEIR HOMES, THEIR
LIVELIHOODS AND THEIR HEALTH?
MR. WHEELER. SENATOR, LET ME GO FIRST, IF I MIGHT. I THINK I DID
NOT MAKE IT CLEAR IN MY TESTIMONY. WE ARE NOT TALKING ABOUT DENYING
PERSONS COMPENSATION. THE QUESTION IS, WHO SHALL BEAR THAT
COMPENSATION? WE ARE NOT TAKING A HARD-HEARTED ATTITUDE, TO HELL WITH
THE VICTIMS. THAT IS NOT THE THRUST OF OUR TESTIMONY. THE QUESTION IS,
WHO MUST BEAR THE RESPONSIBILITY? I THINK THAT IS A FAIR QUESTION.
I THINK THE SECOND THING THAT IS CONFUSING A LOT OF PEOPLE, THESE
BILLS WOULD BE APPLICABLE ONLY TO THE SO-CALLED, I BELIEVE MR. COYNE
PHRASED IT, "ORPHAN SITES." AND IF WE ARE IN AGREEMENT THEN THAT THESE
TWO PIECES OF LEGISLATION ARE TALKING ABOUT ABANDONED ORPHAN SITES
INSOFAR AS HAZARDOUS DISPOSAL -- NOT THE SPILLS, ONLY WASTES DISPOSAL
SITES -- WE FEEL THAT SHOULD BE A MATTER OF PUBLIC FUNDING. WE DO NOT
SEE THE DIFFERENCE BETWEEN WHEN THE COUNTRY SUFFERS A WEATHER CLAMITY OR
ANOTHER CLAMITY. I COME FROM KANSAS, FOR EXAMPLE. IF YOU HAVE A
TREMENDOUS MISHAP IN THE STATE OF VERMONT AND THE FEDERAL GOVERNMENT
PICKS IT UP, THE FARMERS IN KANSAS DON'T MARCH TO WASHINGTON AND SAY "TO
HELL WITH VERMONT," THEY MIGHT THINK IT, BUT THEY DON'T COME.
STATEMENT
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 007 OF 11
COX RM PRESIDENT
GILBERT SPRUANCE CO.
104559
HEARING
TRANSCRIPT
SENATE
BUT THE POINT WE ARE TRYING TO MAKE -- AND WE HAVE NOT MET EACH OTHER
PRIOR TO THIS MORNING -- I THINK WE ARE IN GENERAL AGREEMENT ON THE
INACTIVE WASTE SITES WHERE THE MATERIAL WAS DISPOSED OF, LAWFULLY OR
UNLAWFULLY AT THIS TIME, AND WHERE THERE IS NO RESPONSIBLE TORTFEASORS,
THEN THE PUBLIC MUST BEAR THIS, SPREAD AMONG SOME 200 MILLION AMERICANS.
WE FEEL WHAT HAS HAPPENED IN SOME VERY INFLAMMATORY STATEMENTS WERE
ISSUED BY EPA -- THERE WERE SOME 2,800 ORPHANED SITES. AND WHAT WE
DISCOVERED THROUGH FREEDOM OF INFORMATION, THIS BOILED DOWN TO LESS THAN
200 SITES. WHAT HAPPENED, IN THE PANIC OVER LOVE CANAL, THE UNFORTUNATE
THING IN MICHIGAN, IS WE ARE ABOUT TO THROW OUT THE BABY WITH THE BATH
WATER. I DON'T THINK ANY OF US WOULD TESTIFY TO ANY COMMITTEE THESE
VICTIMS OF LOVE CANAL, ET CETERA, SHOULD BE DENIED COMPENSATION. THE
ISSUE IS HOW SHALL THAT ISSUE BE RESOLVED?
SENATOR, I AM SORT OF A COUNTRY LAWYER, AND I UNDERSTAND ONCE YOU
EARNED AN HONEST LIVING IN THAT SAME FUNCTION.
SENATOR STAFFORD. I APPRECIATE THAT DESCRIPTION.
MR. WHEELER. THESE BILLS ARE TREMENDOUSLY FAR-REACHING AND ARE
REALLY PREMISED OR BOTTOMED ON PANIC MORE THAN FACT, AND THAT IS EXACTLY
THE REASON WE ASKED FOR FREEDOM OF INFORMATION. AND I WOULD HAVE TO SAY
EPA COOPERATED AND SENT US HALF A RAILROAD CAR LOAD OF MATERIAL. BUT NO
PLACE IN THAT MATERIAL CAN WE FIND ANYTHING THAT WOULD JUSTIFY THE
FAR-REACHING PROPOSITIONS CONTAINED IN THESE BILLS.
I WAS JUST THINKING A MINUTE ON WHAT MR. COYNE AND THE GENTLEMAN FROM
PHILADELPHIA SAID ONTHE CARRIER ABSOLUTE LIABILITY. WHAT IS GOING TO
HAPPEN? THE COMPANIES ARE GOING TO SAY TO THEIR LAWYERS HOW DO WE
ARRIVE AT ABSOLUTE LIABILITY, JOINT LIABILITY COSTS OF, SAY, SHIPPING
ANHYDROUS AMMONIA TO MR. COYNE? THE ANSWER IS SIMPLE. EVERY LOAD WILL
BE SHIPPED F.O.B. TO HIM. SO THE RAILROAD PUTS A 30,000-GALLON TANKER
IN THE DITCH DUE TO THEIR NEGLIGENCE. SUDDENLY IT IS MR. COYNE AND C. &
O. RAILROAD AND NOT THE PRODUCERS. WHAT IS GOING TO HAPPEN, OUR PEOPLE
WILL BE SMART ENOUGH TO SHIFT THE JOINT LIABILITY TO EVERY LITTLE
FERTILIZER DEALER IN THE COUNTRY. I SUBMIT THAT IS GROSSLY UNFAIR, AND
I SUBMIT THAT IS NOT WHAT REALLY THE CONGRESS IS INTENDING TO DO. THE
BILL GOES SO FAR BEYOND ORPHANED SITES AND SPILLS IT HAS VERY, VERY
FAR-REACHING EFFECTS, AND WE ARE NOT CONVINCED THAT MEMBERS OF THE
COMMITTEE KNOW WHAT THEY DO ON THIS POINT.
I HAVE SAID ALL I NEED TO SAY AND MORE, BUT I REALLY HOPE THAT THE
COMMITTEE AND ITS STAFF UNDERSTAND WE ARE MAKING SOME VERY, VERY
FUNDAMENTAL CHANGES IN TORT LAW, IN CONTRACT LAW, AND SO FORTH. AND WE
ARE MOST APPRECIATIVE, SENATOR, WHEN YOU DECIDED TO HAVE ADDITIONAL
HEARINGS SO THAT SOME OF THESE ISSUES COULD BE AIRED. FRANKLY, WE WERE
NOT TOO SURE THAT SOME OF THE EARLIER HEARINGS MIGHT NOT HAVE BEEN IN
VIOLATION OF THE CLEAN AIR ACT.
SENATOR STAFFORD. DOES ANYBODY ELSE WISH TO RESPOND?
MR. COYNE. I WOULD LIKE TO MAKE A COMMENT TO YOUR QUESTION. I
CERTAINLY CONCUR WITH MR. WHEELER WITH REGARD TO THE FACT THAT THE
CHEMICAL INDUSTRY AND OUR ASSOCIATION FULLY EXPECT VICTIMS OF SPILLS AND
MISLABELING OF CHEMICALS AND HAZARDOUS PRODUCTS TO BE COMPENSATED.
STATEMENT
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 008 OF 11
COX RM PRESIDENT
GILBERT SPRUANCE CO.
104560
HEARING
TRANSCRIPT
SENATE
THERE IS NO QUESTION ABOUT THAT. BUT THE INSURANCE INDUSTRY TODAY
HAS, AS I WAS TRYING TO POINT OUT, DEVELOPED IN THE PAST YEAR OR TWO THE
MECHANISM FOR OUR OWN ASSOCIATION, AS I MENTIONED, TO HAVE INSURANCE
COVERAGE SO THAT A FUND IS NOW BEING DEVELOPED WITHIN OUR OWN
ASSOCIATION TO PAY FOR ENVIRONMENTAL AND SPILL-RELATED DAMAGES. NOW IF
THE LEGISLATIVE LANGUAGE YOU ARE PROPOSING IS PUT INTO LAW. I AM SURE
THE INSURANCE COMPANY WITH WHICH WE HAVE WORKED SO HARD TO DEVELOP THE
POLICY UNDER CURRENT LAW WILL COME BACK TO ME AND SAY, "WELL, I AM
AFRAID THE GOVERNMENT HAS JUST REWRITTEN THE RULES AND WE WILL HAVE TO
CANCEL YOUR INSURANCE POLICY." THEN WE WILL BE WITHOUT COVERAGE AND NO
INSURANCE FUNDS WILL EXIST TO COMPENSATE VICTIMS.
THE TAKING OF RISK IN OUR COUNTRY IS THE BURDEN OF BUSINESS AND
INSURANCE COMPANIES, NOT GOVERNMENT. BUT BUSINESSMEN ACCEPT CERTAIN
RISKS, AND IF THE RISK IS TOO LARGE THEY WILL GO OUT AND POOL THAT RISK,
AND INSURANCE COMPANIES ACT AS A VEHICLE FOR DOING THAT. THIS IS
EXACTLY WHAT WE HAVE DONE. WE HAVE ESTABLISHED RISKS, ACCEPTED THE
COSTS, ESTABLISHED LIABILITY. WHY NOT LET EXISTING FREE ENTERPRISE,
COUPLED WITH OUR INSURANCE COMPANIES DEAL WITH? WE TALK ABOUT THE SIZE
OF LOVE CANAL. THE INSURANCE INDUSTRY HAS NO PROBLEM DEALING WITH A
LARGE RISK EXPOSURE AS- LONG AS WE GET TOGETHER AND WORK ON IT WITH
REASONABLE RULES AND GUIDELINES.
SENATOR STAFFORD. ANYONE ELSE? DR. KRAEMER.
MR. KRAEMER. I WOULD LIKE, IF I MAY, TO ENTER INTO THE RECORD THE
STATEMENT OF THE AMERICAN INSURANCE ASSOCIATION RELATING TO THEIR
TESTIMONY ON JULY 31, 1979, IN THE HOUSE OF REPRESENTATIVES CONCERNING
HAZARDOUS SUBSTANCE DISCHARGE AND HAZARDOUS WASTE DISPOSAL. THIS
DOCUMENT DOES EXPLAIN IN MORE DETAIL THEIR PROBLEMS WITH INSURANCE UNDER
THE PROPOSED BILLS.
SENATOR STAFFORD. WITHOUT OBJECTION -- AND THERE IS NO ONE BUT ME
HERE TO OBJECT -- THE DOCUMENT WILL BE MADE A PART OF THE HEARING
RECORD.
(A STATEMENT FROM THE AMERICAN INSURANCE ASSOCIATION, SIMILAR TO THE
ONE REFERRED TO, WAS FILED WITH THIS COMMITTEE AND MAY BE FOUND AT P.
671.)
SENATOR STAFFORD. DID YOU WISH TO COMMENT ON THIS QUESTION?
MR. COX. WELL, MR. CHAIRMAN, I WOULD JUST LIKE TO ADD I THINK ALL OF
US ON THE PANEL -- NONE OF US FEELS WE SHOULD TURN OUR BACKS ON THE
INNOCENT INDIVIDUALS WHO HAVE SUFFERED THE CONSEQUENCES OF THE HAZARDOUS
WASTES PROBLEM. I THINK WHAT WE FEEL IS THAT IT IS A PUBLIC MATTER, AND
THAT IN CASTING ABOUT FOR SOMEONE TO BLAME, THE CHEMICAL INDUSTRY AND
ALL OF THE PERIPHERAL INDUSTRIES ASSOCIATED WITH IT HAVE GOTTEN THE
FINGER POINTED AT THEM. WE FEEL THAT IS UNFAIR.
SENATOR STAFFORD. THANK YOU.
I HAVE A QUESTION FOR YOU, MR. COYNE. YOU STATE THAT THE CHEMICAL
INDUSTRY SHOULD NOT BE SINGLED OUT TO BEAR THE COST OF CLEANING UP AND
COMPENSATING THE VICTIMS. THE FEE BASED ON HAZARDOUS SUBSTANCES WILL
FALL MOSTLY ON THE CHEMICAL INDUSTRY. A FEEDSTOCK IS CLASSED MORE
BROADLY. I TAKE IT THEM, OF THE TWO YOU WOULD PREFER A FEEDSTOCK FEE
SYSTEM.
STATEMENT
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 009 OF 11
COX RM PRESIDENT
GILBERT SPRUANCE CO.
104561
HEARING
TRANSCRIPT
SENATE
MR. COYNE. THERE ARE A LOT OF STORIES ABOUT PEOPLE BEING GIVEN
CHOICES.
WHAT I PREFER TO SEE IS THE LIABILITY QUESTION MAINTAINED.
NEGLIGENCE HAS TO BE THE BASIS UPON WHO IS RESPONSIBLE FOR CLEANUP. WE
HAVE WORKED SO HARD. MR. COX MENTIONED HIS BUSINESS IS IN THE THIRD
GENERATION. I AM THE FOURTH GENERATION IN OUR BUSINESS. WE WORKED AN
AWFUL LONG TIME TO MAKE SURE OUR CUSTOMERS AND EMPLOYEES AND PRODUCERS
UNDERSTAND THESE THINGS. IT SHOULD BE OUR RISK AND OUR BURDEN, AND WE
ACCEPT A CERTAIN SHARE OF THAT RISK. BUT TO SAY THAT THE GOVERNMENT CAN
COME IN AND TELL US WE ARE GOING TO TAKE THE RISK AND CHARGE A FEE TO MY
COMPANY, BUT WHEN I READ THE FINE PRINT I FIND I DON'T GET ANY COVERAGE,
I DON'T UNDERSTAND HOW THAT BENEFITS US OR BENEFITS THE VICTIMS OF
HAZARDOUS CHEMICAL SPILLS.
SENATOR STAFFORD. THANK YOU VERY MUCH.
LET ME ASK THIS QUESTION OF ALL OF THE WITNESSES, ANY WHO CARE TO
RESPOND. WE NOW HAVE A SYSTEM OF RESPONDING TO ENVIRONMENTAL
EMERGENCIES WITH APPROPRIATED FUNDS. THAT IS SECTION 504 OF THE WATER
ACT. FRANKLY, THIS SEEMS TO BE A FAILURE. GIVEN THAT, DO YOU STILL
OPPOSE SOME SORT OF FEE AND FUND SYSTEM?
MR. COYNE. THIS CERTAINLY FOLLOWS ON MY PREVIOUS STATEMENT. I DON'T
THINK WE HAVE GIVEN RCRA AND OTHER RECENT CREATIONS OF CONGRESS A CHANCE
TO DO THEIR JOB. I LOOK AT HOW FAR WASTE DISPOSAL ORGANIZATIONS RELATED
TO RCRA IN PENNSYLVANIA HAVE GOTTEN IN THE 2 YEARS THEY HAVE BEEN
TOGETHER. IT IS CLEAR THAT THEY ARE REALLY JUST GETTING THEIR FEET WET.
I THINK WE SHOULD GIVE THEM THE CHANCE TO IMPROVE. THE STATE OF THE
ART HAS EVOLVED SO QUICKLY. AND JUST BECAUSE THE GOVERNMENT AGENCIES
HAVE DROPPED THE BALL ONCE OR TWICE, ARE GOING TO TRY ALL OVER AGAIN
FROM SCRATCH, I DON'T THINK THAT IS A PROPER RESPONSE.
MR. WHEELER. SECTION 311 OF THE CLEAN WATER ACT HAS A $35 MILLION
REVOLVING FUND ESTABLISHED IN IT NOW AND, OF COURSE, THAT CAN BE
RECOVERED OVER AGAINST THE TORTFEASOR IF AND WHEN THE GOVERNMENT GETS
AROUND TO SUING. WE DO NOT HAVE ANYTHING IN OUR KNOWLEDGE THEY HAVE
EVEN COME CLOSE TO SPENDING THE FUND, SECTION 311 AND 504 BOTH. AND IF
THEY ARE HURTING FOR FUNDS, WE ARE UNAWARE OF IT. IN FACT, IF MY
RECOLLECTION IS GOOD ON TESTIMONY COMING IN, THEY HAVE NOT DRAWN THIS
FUND DOWN. BUT IF THE FUND IS INSUFFICIENT, THEN IN THE WISDOM OF
CONGRESS THEY COULD INCREASE THAT FUND IF THEY FIND THAT EXPERIENCE.
BUT THEY ARE NOT NOW WITHOUT FUNDS.
SENATOR STAFFORD. ANY FURTHER RESPONSE TO THIS QUESTION? IF NOT, WE
WILL MOVE ON TO THENEXT ONE. I AM NOT REALLY PICKING ON YOU, MR.
WHEELER, BUT I DO FIND THE NEXT TWO QUESTIONS ARE ADDRESSED TO YOU. I
THINK YOU USE THE NUMBERS $40 TO $60 MILLION IN FEEDSTOCK FEE COSTS TO
THE FERTILIZER INDUSTRY UNDER THE ADMINISTRATION'S BILL.
MR. WHEELER. CORRECT.
SENATOR STAFFORD. COULD YOU EXPAND JUST A BIT ON HOW YOU DEVELOPED
THAT SUM?
MR. WHEELER. YES; I WILL BE GLAD TO GIVE YOU AND THE STAFF MEMBERS
A CLARIFICATION. WE TOOK THE ADMINISTRATION'S PROPOSAL AND ACCEPTED THE
FIGURES ON TE AMMONIA, NITRIC ACID, AND SULFURIC ACID WHICH TOTAL $41.2
MILLION, AND ADDED THOSE, SOMEHOW OR OTHER THE ADMINISTRATION LEFT
OFF,PHOSPHORIC ACID AND AMMONIUM NITRATE.
STATEMENT
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 010 OF 11
COX RM PRESIDENT
GILBERT SPRUANCE CO.
104562
HEARING
TRANSCRIPT
SENATE
THE SUM OF THAT WOULD BE $60 MILLION. IF UNDER THE FINAL
REGULATIONS, AS ALLUED TO BY OTHER WITNESSES, THE RCRA REGULATIONS TO BE
PROMULGATED DECEMBER 3, THEY FIND THAT GYPSUM IS ALSO HAZARDOUS, THAT
WILL COST US $30 MILLION ON GYPSUM A YEAR. THEN THAT FIGURE, IF WE
UNDERSTAND HOW THE ADMINISTRATION IS CALCULATING THAT FIGURE, WILL RISE
TO $100 MILLION IF GYPSUM IS INCLUDED. THE $60 MILLION WE HAVE
CALCULATED DOES NOT INCLUDE GYPSUM.
SENATOR STAFFORD. NOW THE LAST QUESTION. I WISH THAT
REPRESENTATIVES OF THE AMERICAN RAILROADS COULD HAVE BEEN PRESENT TO
COMMENT ON YOUR TESTIMONY, AND, INDEED, ON THE TESTIMONY OF ALL OF THE
WITNESSES WHO HAVE JOINED US TODAY. BUT THEY DECLINED OUR INVITATION.
HOWEVER, I WOULD LIKE TO ASK A QUESTION CONCERNING RAIL TRANSPORTATION
WHICH IS RAISED BY YOUR TESTIMONY. YOUR POSITION IS THAT THE SHIPPER,
IF I UNDERSTAND CORRECTLY, THE SHIPPER OF HAZARDOUS SUBSTANCES SHOULD
BEAR NO FINANCIAL RESPONSIBILITY FOR DAMAGES CAUSED BY A RAIL ACCIDENT
BECAUSE THE SHIPPER CEASES TO HAVE ANY CONTROL ONCE THE MATERIAL LEAVES
HIS POSSESSION. IT IS THE CHAIR'S UNDERSTANDING THATMOSTLARGE VOLUME
SHIPPERS OWN ROLLING STOCK. FOR EXAMPLE, I BELIEVE DU PONT OWNS 30,000
RAILCARS. IN THOSE CASES THE SHIPPER DETERMINES WHETHER THE CAR WILL BE
EQUIPPED WITH SAFETY DEVICES, SUCH AS HEADSHIELDS TO PREVENT SOME LARGE
NUMBER OF ACCIDENTS. DO YOU KNOW, MR. WHEELER, HOW MANY RAILCARS ARE
OWNED BY YOUR MEMBER COMPANIES AND HOW MANY OF THESE ARE EQUIPPED WITH
FOR EXAMPLE, WITH HEADSHIELDS?
MR. WHEELER. WE OWN OR LEASE 15,000 TANKERS AND THEY ARE ALL
TIGHTLOCK AND ALL EQUIPPED WITH HEADSHIELDS. THE AMMONIA CARS ARE NOT
REQUIRED TO BE INSULATED, BUT IF CARRYING LIQUID PETROLEUM GAS THEY ARE
INSULATED.
I HAVE BEEN PRESIDENT OF THE INSTITUTE 10 YEARS. PRIOR TO THAT I WAS
WITH THE SANTA FE RAILWAY SYSTEM. IN THE 10 YEARS I HAVE BEEN WITH THE
INSTITUTE, WE HAVE NEVER HAD A SINGLE TANK CAR FAILURE SO LONG AS THE
TANK CAR REMAINED BETWEEN THE RAILS. THE DESIGNERS OF THAT EQUIPMENT
DID NOT PROVIDE FOR CARS RUNNING 60 MILES AN HOUR THROUGH THE
RIGHT-OF-WAY. ALL OF THE FAILURES HAVE BEEN AS A RESULT OF DERAILMENT
AND NOT DUE TO VESSEL FAILURE. THIS IS WHY WHEN THAT TANK CAR IS TURNED
OVER TO THE CARRIER, WE HAVE, LAWFULLY AND OTHERWISE, NO CONTROL OVERHOW
WELL THAT CAR IS HANDLED OR HOW BADLY IT IS MISHANDLED. WE FAIL TO SEE
WHY WE SHOULD HAVE LIABILITY IMPOSED TO US WHEN IT IS UNLAWFUL FOR US TO
HAVE ANYTHING TO DO WITH THEMOVEMENT. OUR RAIL BUSINESS IS ABOUT $1.5
BILLION A YEAR, AN1 WE FEEL ON THAT BASIS OF COMPENSATION THE CARRIER
SHOULD COME OUT ON THIS MATERIAL ALL RIGHT. BUT TO SAY THE SHIPPERS, IN
A CAR 1,200 MILES AWAY FROM YOUR PLANT, YOU HAVE A RESPONSIBILITY FOF IT
IF IT DERAILS IS REALLY STRETCHING IT. THERE IS NO WAY WE CAN BE
RESPONSIBLE ONCE THAT MATEFIAL IS MOVED FROM THE PLANT.
OUR PRODUCERS ARE BIG COMPANIES. WE ARE RESPONSIBLE. OUR BIGGEST
PRODUCERS ARE CO-OPS. WE FAIL TO SEE HOW WE COULD HAVE ANY CONTROL OVER
THAT MOVEMENT AT ALL ONCE IT LEAVES THE PLANT GATE. THE LAW IS CLEAR.
I THOUGHT THAT WAS WHAT YOU WERE ASKING. THE CARRIER KNOWS THAT THIS
MATERIAL IS COVERED BY VERY STRINGENT REGULATIONS AND THE DEPARTMENT OF
TRANSPORTATION UNDER THE HAZARDOUS MATERIAL MOVEMENT REGULATION, WHICH
IS LONGER THAN "MONKEY" WARDS SPRING CATALOG. IT PROVIDES, AMONG OTHER
THINGS, FOR TIGHTLOCK COUPLERS, AND ALL CARS ARE SO EQUIPPED.
STATEMENT
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 011 OF 11
COX RM PRESIDENT
GILBERT SPRUANCE CO.
104563
HEARING
TRANSCRIPT
SENATE
SENATOR STAFFORD. THANK YOU VERY MUCH, MR. WHEELER.
ONCE AGAIN THE CHAIR THANKS ALL MEMBERS OF THE PANEL FOR HELPING US
WITH THIS REALLY VERY DIFFICULT PROJECT THAT THIS SUBCOMMITTEE HAS
UNDERTAKEN. THANK YOU.
THE COMMITTEE WILL STAND ADJOURNED UNTIL TOMORROW MORNING.
(WHEREUPON, AT 11:25 A.M. THE SUBCOMMITTEES RECESSED, TO RECONVENE AT
9:30 A.M., FRIDAY, SEPTEMBER 9, 1979.)
(PREPARED STATEMENTS FOLLOW:)
SUPPLEMENTAL STATEMENT TO THE TESTIMONY OF WHEELER E P
790906
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 001 OF 54
WHEELER E P PRESIDENT
THE FERTILIZER INSTITUTE
U.S. SENATE ENVIRONMENT AND PUBLIC WORKS COMMITTEE RESOURCE
PROTECTION AND ENVIRONMENTAL POLLUTION SUBCOMMITTEE
104564
HEARINGS
SENATE
CONGRESS IS CURRENTLY SEARCHING FOR A SOLUTION TO THE VEXING PROBLEM
OF HOW TO DEAL WITH THE PRESENT AND FUTURE ENVIRONMENTAL EFFECTS OF THE
WASTE DISPOSAL PRACTICES OF YEARS GONE BY, A PROBLEM VASTLY COMPLICATED
BY BOTH THE PASSAGE OF TIME AND THE CHANGES IN PUBLIC ATTITUDES TOWARD
GOVERNMENT REGULATION OF INDUSTRIAL AND MUNICIPAL WASTE DISPOSAL.
THE RESOURCE PROTECTION AND ENVIRONMENTAL POLLUTION SUBCOMMITTEES OF
THE SENATE ENVIRONMENT AND PUBLIC WORKS COMMITTEE ARE CURRENTLY
CONSIDERING TWO MEASURES WHICH PURPORT TO OFFER SOLUTIONS TO THE WIDE
RANGE OF PROBLEMS PRESENTED BY INACTIVE AND ABANDONED HAZARDOUS WASTE
DISPOSAL SITES -- S.1341, AN ADMINISTRATION SUPPORTED MEASURE, AND
S.1480.
WHILE DETAILS AND COVERAGE OF THE MEASURES VARY, BOTH SEIZE UPON THE
SAME SOLUTION TO THE PROBLEM -- THE CREATION OF A "SUPERFUND" --
MAINTAINED PRIMARILY FROM FEES LEVIED ON CERTAIN CURRENT INDUSTRIAL
OPERATIONS WHICH WILL BE USED TO FINANCE THE CLEAN-UP OF OLD WASTE
DISPOSAL SITES WHICH ARE NOT NOW BEING USED BY ANY OF THE INDUSTRIIES
AND INDIVIDUALS ASKED TO PAY THE CLEAN-UP BILL.
SUPPLEMENTAL STATEMENT TO THE TESTIMONY OF WHEELER E P
790906
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 002 OF 54
WHEELER E P PRESIDENT
THE FERTILIZER INSTITUTE
U.S. SENATE ENVIRONMENT AND PUBLIC WORKS COMMITTEE RESOURCE
PROTECTION AND ENVIRONMENTAL POLLUTION SUBCOMMITTEE
104565
HEARINGS
SENATE
IN THE CASE OF THE FERTILIZER INDUSTRY IT APPEARS THAT IT IS BEING
ASKED TO PAY A LARGE PORTION OF THE CLEAN-UP COSTS EVEN THOUGH IT NEVER
USED ANY OF THE SITES TO BE CLEANED-UP.
IN ADDITION, BOTH BILLS UNNECESSARILY SEEK TO APPLY THE "SUPERFUND"
SOLUTION TO THE ESSENTIALLY UNRELATED PROBLEM OF PRESENT AND FUTURE
SPILLS OF "HAZARDOUS SUBSTANCES" AND WOULD WORK EXTENSIVE CHANGES IN A
NUMBER OF WELL ESTABLISHED AND WELL FUNCTIONING PRINCIPALS OF LIABILITY
AND TORT LAW.
THE FERTILIZER INDUSTRY SHARES THE GENERAL CONCERN OF ALL THAT
SOLUTIONS BE FOUND TO THE PROBLEMS ASSOCIATED WITH INACTIVE AND
ABANDONED HAZARDOUS WASTE DISPOSAL SITES.
OUR ANALYSIS OF THE CURRENTLY PROPOSED SOLUTIONS, AS EMBODIED IN
S.1341 AND S.1480, DEMONSTRATES, HOWEVER, THAT NEITHER MEASURE EQUITABLY
ADDRESSES THE REAL PROBLEMS AND THAT BOTH MEASURES ARE OVERLY BROAD,
UNNECESSARY TO A LARGE EXTENT AND WILL HAVE A GROSSLY DISPROPORTIONATE
AND UNFAIR IMPACT ON THE AGRICULTURAL SECTOR OF THE ECONOMY.
A. THE FUND
THE CENTERPIECE OF BOTH S.1341 AND S.1480 IS THE CREATION OF A
"SUPERFUND" TO FINANCE GOVERNMENT RESPONSE, CLEAN-UP AND CONTAINMENT
MEASURES BY ASSESSING A FEE ON THE PRODUCTION OF HAZARDOUS SUBSTANCES
AND/OR THE GENERATION OF HAZARDOUS WASTES.
SUPPLEMENTAL STATEMENT TO THE TESTIMONY OF WHEELER E P
790906
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 003 OF 54
WHEELER E P PRESIDENT
THE FERTILIZER INSTITUTE
U.S. SENATE ENVIRONMENT AND PUBLIC WORKS COMMITTEE RESOURCE
PROTECTION AND ENVIRONMENTAL POLLUTION SUBCOMMITTEE
104566
HEARINGS
SENATE
PURSUANT TO BOTH S.1341 AND S.1480, THE RESOURCES OF THE SUPERFUND
WILL BE AVAILABLE TO FINANCE CERTAIN ENUMERATED GOVERNMENT RESPONSE
ACTIONS TAKEN AS A RESULT OF A "RELEASE" OR THREATENED RELEASE FROM ANY
"UNCONTROLLED HAZARDOUS WASTE DISPOSAL SITE". S.1341 DEFINES SUCH A
SITE AS ONE NOT SUBJECT TO REGULATION UNDER SUBTITLE C OF THE RESOURCE
CONSERVATION AND RECOVERY ACT OF 1976 (RCRA). S.1480 DEFINES AN
UNCONTROLLED HAZARDOUS WASTE DISPOSAL SITE AS ONE WHICH IS NOT IN
COMPLIANCE WITH THE PERMIT REQUIREMENTS OF SECTION 3005 OF RCRA.
IN ADDITION, BOTH S.1341 AND S.1480 ALLOW THE RESOURCES OF THE FUND
TO BE USED FOR CERTAIN GOVERNMENT ACTIONS IN RESPONSE TO SPILLS OF
"HAZARDOUS SUBSTANCES". S.1341 BUT NOT S.1480 ALSO PERMITS THE USE OF
FUND RESOURCES FOR GOVERNMENT RESPONSE IN THE CASE OF OIL SPILLS. BOTH
MEASURES PERMIT CERTAIN PRIVATE CLAIMS FOR DAMAGES AS A RESULT OF
SPILLS. S.1480 ALSO ALLOWS PRIVATE CLAIMS IN CASES OF RELEASES FROM
UNCONTROLLED HAZARDOUS WASTE DISPOSAL SITES.
IN ADDITION TO PERMITTED PRIVATE DAMAGE CLAIMS AGAINST THE SUPERFUND,
BOTH MEASURES WOULD PERMIT SUCH CLAIMS TO BE MADE DIRECTLY AGAINST
PRIVATE PARTIES ON THE BASIS OF JOINT, SEVERAL AND STRICT LIABILITY.
SUPPLEMENTAL STATEMENT TO THE TESTIMONY OF WHEELER E P
790906
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 004 OF 54
WHEELER E P PRESIDENT
THE FERTILIZER INSTITUTE
U.S. SENATE ENVIRONMENT AND PUBLIC WORKS COMMITTEE RESOURCE
PROTECTION AND ENVIRONMENTAL POLLUTION SUBCOMMITTEE
104567
HEARINGS
SENATE
THE JOINT, SEVERAL AND STRICT LIABILITY PROVISIONS ALSO EXTEND TO
LIABILITY FOR REIMBURSEMENT OF MONIES EXPENSED BY THE FUND FOR
AUTHORIZED GOVERNMENT RESPONSE ACTIONS.
IN THE AGRICULTURAL COMMUNITY
ANALYSIS OF THE MAJOR PROVISIONS OF BOTH S.1341 AND S.1480 INDICATES
THAT THE ENACTMENT OF EITHER MEASURE WOULD HAVE AN ENORMOUS IMMEDIATE
IMPACT ON THE FERTILIZER INDUSTRY AND THE POTENTIAL FOR AN EVEN MORE
STAGGERING IMPACT IN THE IMMEDIATE FUTURE. INDEED, THE MATERIALS
SUPPLIED BY EPA IN SUPPORT OF THE ADMINISTRATION MEASURE ACKNOWLEDGE THE
SEVERITY OF THE IMPACT:
THE SECTOR OF THE ECONOMY THAT WILL PERHAPS BE HIT MOST HEAVILY BY
THESE FEES WILL BE THE FERTILIZER INDUSTRY. "ECONOMIC IMPACT ANALYSIS
PROPOSED SUPERFUND FEE SYSTEM." DOCUMENT SUBMITTED BY THE PRESIDENT TO
THE PRESIDENT OF THE SENATE IN SUPPORT OF THE ADMINISTRATION SUPERFUND
PROPOSAL (SUBSEQUENTLY INTRODUCED AS S.1341), JUNE 13, 1979, P. 4.
(EMPHASIS SUPPLIED)
UNDER SECTION 606(F) OF S.1341, A FEE WOULD BE LEVIED UPON SUPPLIERS
OF INORGANIC ELEMENTS AND COMPOUNDS AS PART OF THE REVENUE OF THE
SUPERFUND. SECTION 606(F)(3)(E) INDICATES THAT $100 MILLION PER YEAR
WOULD BE RAISED FROM INORGANIC CHEMICALS DURING FISCAL YEARS 1983 AND
1984.
SECTION 606(F)(3)(C) AND (D) SPECIFICALLY LISTS THE FOLLOWING
FERTILIZERS OR FERTILIZER RAW MATERIALS AS SUBJECT TO THE FEE ON
INORGANIC CHEMICALS: PHOSPHORIC ACID, SULFURIC ACID, NITRIC ACID,
AMMONIA, AND THE EQUIVALENT WEIGHT OF AMMONIA IN AMMONIUM NITRATE.
SUPPLEMENTAL STATEMENT TO THE TESTIMONY OF WHEELER E P
790906
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 005 OF 54
WHEELER E P PRESIDENT
THE FERTILIZER INSTITUTE
U.S. SENATE ENVIRONMENT AND PUBLIC WORKS COMMITTEE RESOURCE
PROTECTION AND ENVIRONMENTAL POLLUTION SUBCOMMITTEE
104568
HEARINGS
SENATE
TABLE I SHOWS THE PERCENTAGE OF THE TOTAL PRODUCTION OF THESE
CHEMICALS USED BY THE FERTILIZER INDUSTRY. AS TABLE I CLEARLY
INDICATES, THE FERTILIZER INDUSTRY WOULD BE IMPACTED HEAVILY BY FEES
COLLECTED ON THE PRODUCTION OF INORGANIC CHEMICALS.
INDEED, EPA'S OWN ESTIMATE IS THAT $41.2 MILLION PER YEAR WILL BE
RAISED FROM THE FERTILIZER INDUSTRY AS A RESULT OF THE INORGANIC
CHEMICAL FEE. SEE: "ECONOMIC IMPACT ANALYSIS PROPOSED SUPERFUND FEE
SYSTEM", DOCUMENT SUBMITTED BY THE PRESIDENT TO THE PRESIDENT OF THE
SENATE IN SUPPORT OF THE ADMINISTRATION SUPERFUND PROPOSAL (SUBSEQUENTLY
INTRODUCED AS S.1341), JUNE 13, 1979, P. 4 TABLE IV. THIS REPRESENTS
OVER 40% OF THE TOTAL FEE TO BE COLLECTED FROM ALL INORGANIC CHEMICAL
INDUSTRIES IN FISCAL YEARS 1983 AND 1984. FURTHERMORE, EPA'S ESTIMATE,
PRIMARILY AS A RESULT OF ITS FAILURE TO INCLUDE AMMONIUM NITRATE AND
PHOSPHORIC ACID, IS SOME 50% TOO LOW. AS TABLE II SHOWS, $60 MILLION
PER YEAR OR SOME 60% OF THE TOTAL FEE ON INORGANIC CHEMICALS WOULD BE
COLLECTED FROM THE FERTILIZER INDUSTRY.
THE APPROACH TO THE MAINTENANCE OF THE SUPERFUND EMBODIES IN S.1480
VARIES FROM THE STATUTORILY PRESCRIBED FEE SYSTEM ESTABLISHED BY S.1341.
IN S.1480 IT IS PROPOSED TO TAX THE PRODUCTION OF OUR
NUTRIENT-PRODUCING PLANTS AND MINES ON UNSPECIFIED PRODUCTS AT A TAX
RATE LIKEWISE UNSPECIFIED. WHILE WE HAVE SERIOUS DOUBTS THAT SUCH A
SCHEME IS CONSTITUTIONAL, WE WILL ASSUME FOR THE PURPOSES OF THIS
DISCUSSION THAT IT COULD SUCCESSFULLY PASS CONSTITUTIONAL MUSTER.
SUPPLEMENTAL STATEMENT TO THE TESTIMONY OF WHEELER E P
790906
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 006 OF 54
WHEELER E P PRESIDENT
THE FERTILIZER INSTITUTE
U.S. SENATE ENVIRONMENT AND PUBLIC WORKS COMMITTEE RESOURCE
PROTECTION AND ENVIRONMENTAL POLLUTION SUBCOMMITTEE
104569
HEARINGS
SENATE
TABLE I
INORGANIC CHEMICAL USE IN FERTILIZER PRODUCTION
TABLE OMITTED
SUPPLEMENTAL STATEMENT TO THE TESTIMONY OF WHEELER E P
790906
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 007 OF 54
WHEELER E P PRESIDENT
THE FERTILIZER INSTITUTE
U.S. SENATE ENVIRONMENT AND PUBLIC WORKS COMMITTEE RESOURCE
PROTECTION AND ENVIRONMENTAL POLLUTION SUBCOMMITTEE
104570
HEARINGS
SENATE
TABLE II
SUPERFUND FEE SYSTEM
FEES PAID BY AGRICULTURAL USERS
TABLE OMITTED
SUPPLEMENTAL STATEMENT TO THE TESTIMONY OF WHEELER E P
790906
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 008 OF 54
WHEELER E P PRESIDENT
THE FERTILIZER INSTITUTE
U.S. SENATE ENVIRONMENT AND PUBLIC WORKS COMMITTEE RESOURCE
PROTECTION AND ENVIRONMENTAL POLLUTION SUBCOMMITTEE
104571
HEARINGS
SENATE
WE BELIEVE THAT S.1480, WERE IT TO BE THE ENACTED BILL, WOULD RESULT
IN A FEE ASSESSMENT ON THE FERTILIZER INDUSTRY AT LEAST AS LARGE AS THAT
REQUIRED BY S.1341, SINCE IT GIVES THE PRESIDENT OF THE UNITED STATES
THE AUTHORITY TO SET THE FEE LEVEL ON WHATEVER HAZARDOUS PRODUCTS HE
DETERMINES TO BE APPROPRIATE. AS THE PRESIDENT OBVIOUSLY WOULD LOOK TO
EPA, AND S.1341 IS AN ADMINISTRATION MEASURE, WE, THEREFORE FEEL THAT 60
MILLION DOLLARS PER ANNUM WILL BE OUR INDUSTRY'S MINIMUM ASSESSMENT
UNDER EITHER MEASURE.
INDEED, UNDER THE FEE COLLECTION SCHEME ESTABLISHED BY S.1480 THE
FERTILIZER INDUSTRY'S ASSESSMENT IS LIKELY TO BE CONSIDERABLY GREATER
THAN 60 MILLION DOLLARS PER YEAR. SECTION 5(C)(1) OF S.1480 REQUIRES
THAT A SUPERFUND FEE BE COLLECTED FROM MANUFACTURERS, IMPORTERS AND
GENERATORS OF HAZARDOUS SUBSTANCES AND GENERATORS OF HAZARDOUS WASTE.
THE FERTILIZER INDUSTRY'S PROBABLE SHARE OF THE FEES ASSESSED ON
"HAZARDOUS SUBSTANCES" IS DISCUSSED ABOVE AND AMOUNTS TO SOME 60 MILLION
DOLLARS PER YEAR. BY ALSO REQUIRING THE COLLECTION OF A FEE FROM
GENERATORS OF HAZARDOUS WASTES, S.1480 COULD LEAD TO A FURTHER INCREASE
IN THE FEES ASSESSED ON THE FERTILIZER INDUSTRY AMOUNTING TO 10S OR
EVENS 100S OF MILLIONS OF DOLLARS PER YEAR.
ON DECEMBER 18, 1978, EPA PROPOSED REGULATIONS UNDER SECTION 3001 OF
RCRA IDENTIFYING A NUMBER OF WASTES AS "HAZARDOUS". AMONG THE WASTES SO
IDENTIFIED WERE OVERBURDEN AND CLAY TAILINGS FROM PHOSPHATE ROCK MINING
AND WASTE GYPSUM FROM PHOSPHORIC ACID PRODUCTION.
SUPPLEMENTAL STATEMENT TO THE TESTIMONY OF WHEELER E P
790906
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 009 OF 54
WHEELER E P PRESIDENT
THE FERTILIZER INSTITUTE
U.S. SENATE ENVIRONMENT AND PUBLIC WORKS COMMITTEE RESOURCE
PROTECTION AND ENVIRONMENTAL POLLUTION SUBCOMMITTEE
104572
HEARINGS
SENATE
THE FERTILIZER INDUSTRY SUBMITTED EXTENSIVE COMMENTS ON THE PROPOSED
REGULATIONS CHALLENGING THE CLASSIFICATION OF THESE WASTES AS HAZARDOUS
ON THE BASIS OF THE VERY LOW RISKS WHICH THEY PRESENT. CONSEQUENTLY,
WHETHER OR NOT THESE WASTES WILL EVENTUALLY BE CLASSIFIED AS "HAZARDOUS"
IS YET TO BE DETERMINED. SHOULD EPA FINALLY CLASSIFY THESE WASTES AS
HAZARDOUS, HOWEVER, THEY WOULD AUTOMATICALLY BECOME SUBJECT TO THE
SUPERFUND FEE SYSTEM PROPOSED BY S.1480. EPA HAS ITSELF ESTIMATED THAT
THE VOLUME OF THESE WASTES IS SOME 400 MILLION TONS PER YEAR (43 FED.
REG. 58992, DECEMBER 18, 1978). CONSEQUENTLY, SHOULD A FEE AS LOW AS
$1.00 PER TON BE ASSESSED ON THE GENERATORS OF THESE WASTES THE
ADDITIONAL BILL FOR THE FERTILIZER INDUSTRY WOULD AMOUNT TO SOME $400
MILLION PER YEAR. EVEN IF THE FEE WERE SET AS LOW AS 10 CENTS PER TON
THE INCREASED BILL WOULD AMOUNT TO SOME $40 MILLION OR A TOTAL OF $100
MILLION PER YEAR WHEN ADDED TO THE $60 MILLION FEE ON HAZARDOUS
SUBSTANCES.
IN ADDITION TO THESE DIRECT COSTS, THE LIABILITY SECTIONS OF BOTH
MEASURES (THESE PROVISIONS WILL BE DISCUSSED IN DETAIL BELOW) WOULD
ALMOST CERTAINLY IMPOSE ADDITIONAL INDIRECT COSTS ON FERTILIZER
MANUFACTURERS, SUPPLIERS AND USERS.
ALL THESE COSTS, BOTH DIRECT AND INDIRECT, WHEN PASSED THROUGH TO THE
ULTIMATE CONSUMER, WILL REPRESENT A SIGNIFICANT INCREASE TO OUR NATION'S
FOOD BILL AND THAT OF THE WORLD (THE UNITED STATES IS THE LEADING FOOD
EXPORTER). CONSEQUENTLY, TO USE EPA'S WORDS, "THE SECTOR OF THE ECONOMY
THAT WILL PERHAPS BE HIT MOST HEAVILY BY THESE FEES" WILL BE THE FOOD
CONSUMERS.
SUPPLEMENTAL STATEMENT TO THE TESTIMONY OF WHEELER E P
790906
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 010 OF 54
WHEELER E P PRESIDENT
THE FERTILIZER INSTITUTE
U.S. SENATE ENVIRONMENT AND PUBLIC WORKS COMMITTEE RESOURCE
PROTECTION AND ENVIRONMENTAL POLLUTION SUBCOMMITTEE
104573
HEARINGS
SENATE
FURTHERMORE, THE POOR, WHOSE PRINCIPAL LIVING EXPENSE IS FOOD, WILL
BE HIT THE HARDEST BECAUSE SUCH A HIGH PERCENTAGE OF THEIR MEAGER INCOME
GOES TO THIS SINGULAR NECESSITY.
DESPITE THESE ACKNOWLEDGED AND SEVERE IMPACTS, NOWHERE IN THE BACKUP
MATERIALS SUBMITTED BY THE ADMINISTRATION CAN ANY JUSTIFICATION
WHATSOEVER FOR THAT IMPACT BE FOUND. ON THE CONTRARY, ANALYSIS OF THE
BACKUP MATERIALS INDICATES THAT THE FERTILIZER INDUSTRY HAS NOT BEEN A
CONTRIBUTOR TO THE PROBLEM OF ABANDONED AND INACTIVE WASTE DISPOSAL
SITES AND IS NOT A SIGNIFICANT CONTRIBUTOR TO THE HAZARDOUS SUBSTANCES
SPILL PROBLEM, A PROBLEM WHICH IS, IN ANY EVENT, FULLY REGULATED BY
EXISTING LAW.
WASTE DISPOSAL SITE PROBLEM
THE FERTILIZER INDUSTRY SHARES THE UNIVERSAL CONCERN WITH THE HUMAN
HEALTH AND ENVIRONMENTAL PROBLEMS WHICH MAY BE CAUSED BY CERTAIN
INACTIVE OR ABANDONED HAZARDOUS WASTE DISPOSAL SITES.
OUR REVIEW OF THE EXISTING LAW CONCERNING SUCH SITES LEADS US TO THE
CONCLUSION THAT NEW LEGISLATION IS NEEDED TO PROVIDE INITIAL FINANCING
FOR THE MITIGATION AND ELIMINATION OF HUMAN HEALTH AND ENVIRONMENTAL
PROBLEMS WHEN THEY OCCUR. SUCH A MEASURE MUST ALSO GIVE THE FEDERAL
GOVERNMENT INCREASED RESOURCES AND AUTHORITY TO INVESTIGATE INACTIVE AND
ABANDONED HAZARDOUS WASTE DISPOSAL SITES AND TO CALL TO ACCOUNT THOSE
PRIMARILY RESPONSIBLE FOR THE ENVIRONMENTAL PROBLEMS CAUSED BY ANY
PARTICULAR SITE.
SUPPLEMENTAL STATEMENT TO THE TESTIMONY OF WHEELER E P
790906
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 011 OF 54
WHEELER E P PRESIDENT
THE FERTILIZER INSTITUTE
U.S. SENATE ENVIRONMENT AND PUBLIC WORKS COMMITTEE RESOURCE
PROTECTION AND ENVIRONMENTAL POLLUTION SUBCOMMITTEE
104574
HEARINGS
SENATE
ANY NEW LEGISLATION ON THIS SUBJECT SHOULD BE CLEARLY CRAFTED SO AS
TO COVER ONLY INACTIVE AND ABANDONED HAZARDOUS DISPOSAL WASTE SITES.
WASTE DISPOSAL SITES WHICH ARE CURRENTLY ACTIVE OR WHICH WILL BE OPENED
IN THE FUTURE ARE FULLY REGULATED UNDER THE RESOURCE CONSERVATION AND
RECOVERY ACT OF 1976 (RCRA). ONCE THE COMPLETE RCRA REGULATORY PROGRAM
IS IN PLACE THE FULL WEIGHT OF THE STATUTE'S AUTHORITY WILL BE AVAILABLE
TO BE BROUGHT TO BEAR ON ACTIVE DISPOSAL SITES WHICH ARE OUT OF
COMPLIANCE.
THERE IS NO EVIDENCE TO SUPPORT THE CONCLUSION THAT RCRA IS
INSUFFICIENT TO DEAL WITH THE PROBLEMS PRESENTED BY ACTIVE DISPOSAL
SITES. WE CANNOT FIND THAT THERE HAS EVEN BEEN A SUGGESTION THAT THIS
AUTHORITY IS INSUFFICIENT. REGULATION OF ACTIVE SITES UNDER ANY
SUPERFUND LEGISLATION WOULD BE DUPLICATIVE, CONFUSING AND ANOTHER
UNJUSTIFIED GROWTH OF THE BUREAUCRACY ALL FOR NAUGHT. THE FERTILIZER
INDUSTRY FAVORS STATUTORY LANGUAGE DEFINING THE COVERAGE OF ANY NEW
LEGISLATION SIMILAR TO THAT CONTAINED IN THE ADMINISTRATION MEASURE,
S.1341. UNDER THAT BILL COVERAGE WOULD BE LIMITED TO SITES NOT
REGULATED UNDER SUBTITLE C OR SUBTITLE D OF RCRA. S.1480, BY EXTENDING
COVERAGE TO SITES NOT IN COMPLIANCE WITH THE REQUIREMENTS OF RCRA, WOULD
BRING NON-COMPLYING ACTIVE AND FUTURE SITES WITHIN THE PURVIEW OF
LEGISLATION, THEREBY UNNECESSARILY OVERLAPPING CURRENTLY ADEQUATE
AUTHORITY UNDER RCRA.
SUPPLEMENTAL STATEMENT TO THE TESTIMONY OF WHEELER E P
790906
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 012 OF 54
WHEELER E P PRESIDENT
THE FERTILIZER INSTITUTE
U.S. SENATE ENVIRONMENT AND PUBLIC WORKS COMMITTEE RESOURCE
PROTECTION AND ENVIRONMENTAL POLLUTION SUBCOMMITTEE
104575
HEARINGS
SENATE
IN ORDER TO ENSURE THAT THE RESOURCES OF THE FUND ARE CONSERVED FOR
USE WHERE MOST NECESSARY, WE RECOMMEND THAT THE COVERAGE LANGUAGE BE
EXPANDED SO AS TO ENSURE THAT THE MEASURE COVERS INACTIVE OR ABANDONED
HAZARDOUS WASTE DISPOSAL SITES WHICH:
1. ARE NOT CURRENTLY REGULATED UNDER RCRA;
2. EXPERIENCE A FAILURE LEADING TO THE ESCAPE OF HAZARDOUS WASTES
INTO THE ENVIRONMENT;
3. CAUSE OR THREATEN TO CAUSE INJURY TO HUMAN HEALTH OR THE
ENVIRONMENT; AND
4. NO RESPONSIBLE PARTY CAN BE FOUND OR, IF FOUND, THE RESPONSIBLE
PARTY FAILS OR REFUSES TO TAKE NECESSARY ACTION.
THE FERTILIZER INDUSTRY STRONGLY BELIEVES THAT ANY FUND DEVELOPED TO
FINANCE ENVIRONMENTAL AND HEALTH PROTECTION MEASURES AT INACTIVE OR
ABANDONED HAZARDOUS WASTE DISPOSAL SITES SHOULD BE CONSERVED FOR USE
WHERE MOST NECESSARY. THEREFORE, WE SUPPORT THE CONCEPT OF FUND USAGE
EMBODIED IN THE ADMINISTRATION MEASURE, S.I341. UNDER THIS FORMULATION
OF THE MEASURE THE FUND WOULD BE USED TO FINANCE EMERGENCY RESPONSE
ACTIONS NECESSARY TO PREVENT OR ELIMINATE ANY HEALTH OR ENVIRONMENTAL
PROBLEMS AND CONTAIN HAZARDOUS WASTES WITHIN THE SITE IN QUESTION. IN
ORDER TO PREVENT A LARGE SCALE DRAWDOWN OF THE FUND IN ANY PARTICULAR
CASE, THE FINANCING OF THE ULTIMATE REMOVAL OR EQUALIZATION OF WASTES
WITHIN A SITE SHOULD BE ON AN EQUAL COST SHARING BASIS BETWEEN THE FUND
AND THE STATE IN WHICH THE PARTICULAR SITE IS LOCATED.
SUPPLEMENTAL STATEMENT TO THE TESTIMONY OF WHEELER E P
790906
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 013 OF 54
WHEELER E P PRESIDENT
THE FERTILIZER INSTITUTE
U.S. SENATE ENVIRONMENT AND PUBLIC WORKS COMMITTEE RESOURCE
PROTECTION AND ENVIRONMENTAL POLLUTION SUBCOMMITTEE
104576
HEARINGS
SENATE
BEYOND THESE CONSIDERATIONS, THE FERTILIZER INDUSTRY IS STRONGLY
OPPOSED TO THE CONCEPT EMBODIED IN S.1480 UNDER WHICH PRIVATE PARTIES
COULD MAKE CLAIMS AGAINST THE FUND FOR PERSONAL INJURY, MEDICAL EXPENSES
AND PROPERTY DAMAGE OCCASIONED BY INACTIVE OR ABANDONED HAZARDOUS WASTE
DISPOSAL SITES. SUCH A PROVISION IS TOTALLY UNNECESSARY SINCE
TRADITIONAL PRINCIPALS OF TORT LAW HAVE LONG PROTECTED AGAINST DAMAGES
OCCASIONED BY THE RELEASE OF INHERENTLY HAZARDOUS MATERIALS.
FURTHERMORE, BY PERMITTING SUCH CLAIMS TO BE MADE AGAINST THE FUND
S.1480 WOULD CREATE A VIRTUALLY BOTTOMLESS "DEEP POCKET" INTO WHICH
INDIVIDUAL PLAINTIFFS AND THEIR ATTORNEYS WOULD CONSTANTLY SEEK TO REACH
THERE0Y EMBOILING THE FUND IN CONSTANT LITIGATION EITHER RESISTING
PRIVATE CLAIMS OR ATTEMPTING TO RECOUP FUND EXPENDITURES THROUGH
SUBROGATION.
THE FERTILIZER INDUSTRY STRONGLY SUPPORTS THE CONCEPT OF REQUIRING
THOSE WHOSE PREVIOUS MISCONDUCT HAS CAUSED OR CONTRIBUTED TO HEALT AND
ENVIRONMENTAL PROBLEMS ASSOCIATED WITH A GIVEN HAZARDOUS WASTE DISPOSAL
SITE TO FULLY REIMBURSE THE FUND FOR ANY EXPENDITURES FROM THE FUND AS A
RESULT OF EMERGENCY RESPONSE.
SUPPLEMENTAL STATEMENT TO THE TESTIMONY OF WHEELER E P
790906
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 014 OF 54
WHEELER E P PRESIDENT
THE FERTILIZER INSTITUTE
U.S. SENATE ENVIRONMENT AND PUBLIC WORKS COMMITTEE RESOURCE
PROTECTION AND ENVIRONMENTAL POLLUTION SUBCOMMITTEE
104577
HEARINGS
SENATE
HOWEVER, OUR ANALYSIS OF S.1341 AND S.1480 INDICATES THAT NEITHER
MEASURE PROPERLY FIXES THE APPROPRIATE LIABILITY FOR REIMBURSEMENT.
BOTH BILLS WOULD IMPOSE JOINT AND SEVERAL LIABILITY ON ANY ONE WHO
"CAUSED OR CONTRIBUTED" TO A PROBLEM ON AN ABSOLUTE LIABILITY BASIS.
THIS CRUDE FORMULATION MAKES NO DISTINCTION BETWEEN THE PROPRIETY OR
IMPROPRIETY OF THE DISPOSAL PRACTICES USED AT THE TIME OF ACTUAL
DISPOSAL. FURTHERMORE, THE JOINT, SEVERAL AND STRICT LIABILITY CONCEPT
TOTALLY IGNORES THE PRINCIPAL OF COMPARATIVE FAULT. THUS, UNDER EITHER
THE ADMINISTRATION MEASURE OR S.1480, A SMALL INDUSTRIAL CONCERN
PROPERLY DISPOSING OF EVEN ONE DRUM OF HAZARDOUS WASTE WITH A REPUTABLE
DISPOSAL COMPANY COULD BE HELD LIABLE FOR THE ENTIRE REIMBURSABLE AMOUNT
OF THE FUND'S EXPENDITURES FOR EMERGENCY ACTION AT THAT DISPOSAL SITE.
SUCH A RESULT IS MANIFESTLY UNFAIR IN THAT IT RETROACTIVELY CONDEMNS
PRIOR WASTE DISPOSAL PRACTICES AND IMPOSES LIABILITY ON NON-CULPABLE
CONDUCT IN A HIGHLY DISPROPORTIONATE FASHION.
TFI RECOMMENDS THAT THE REIMBURSEMENT REQUIREMENTS BE REDRAFTED TO
REQUIRE THAT THOSE WHO WRONGFULLY DISPOSED OF WASTES AT A PARTICULAR
DISPOSAL SITE BE REQUIRED TO REIMBURSE THE FUND FOR CLEAN-UP
EXPENDITURES AT THAT SITE IN AN AMOUNT COMPARATIVE TO THE PARTICULAR
PARTY'S CONTRIBUTION TO THE PROBLEMS CAUSED BY THE SITE. UNDER THIS
FORMULATION "WRONGFUL DISPOSAL" WOULD BE DEFINED AS DISPOSAL IN A MANNER
IN WHICH THE DISPOSER KNEW OR SHOULD HAVE KNOWN WAS CONTRARY TO EXISTING
DISPOSAL REQUIREMENTS OR, IN THE ABSENCE OF SUCH REQUIREMENTS, THE
EXISTING "STATE OF THE ART" FOR HAZARDOUS WASTE DISPOSAL.
SUPPLEMENTAL STATEMENT TO THE TESTIMONY OF WHEELER E P
790906
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 015 OF 54
WHEELER E P PRESIDENT
THE FERTILIZER INSTITUTE
U.S. SENATE ENVIRONMENT AND PUBLIC WORKS COMMITTEE RESOURCE
PROTECTION AND ENVIRONMENTAL POLLUTION SUBCOMMITTEE
104578
HEARINGS
SENATE
FURTHERMORE, THE DEFINITION OF WRONGFUL DISPOSAL SHOULD BE EXPANDED
TO IMPOSE COMPARATIVE LIABILITY ON ANY WASTE GENERATORS WHO HAD SHIPPED
THEIR WASTES TO A PARTICULAR PROBLEM SITE WHEN THEY KNEW OR SHOULD HAVE
KNOWN THAT THE SITE DID NOT COMPLY WITH THEN APPLICABLE REQUIREMENTS OR
THE "STATE OF THE ART". SUCH A FORMULATION WOULD RECOGNIZE THE
PRINCIPALS OF CULPABILITY AND COMPARATIVE NEGLIGENCE WHILE ENSURING THAT
HAZARDOUS WASTE GENERATORS WHO PRACTICED "OUT OF SIGHT, OUT OF MIND"
DISPOSAL WOULD NOT ESCAPE LIABILITY IN APPROPRIATE CIRCUMSTANCES.
TFI ALSO RECOMMENDS THAT THE STATUTORY SECTION DEALING WITH LIABILITY
FOR THE CLEAN-UP OF INACTIVE AND ABANDONED HAZARDOUS WASTE DISPOSAL
SITES BE REVISED TO INCLUDE LANGUAGE PERMITTING AND, INDEED, ENCOURAGING
INDIVIDUALS AND INDUSTRIAL CONCERNS TO PARTICIPATE ACTIVELY, AS WELL AS
FINANCIALLY, IN THE CLEAN-UP OF INACTIVE SITES. SUCH A PROVISION WILL
PERMIT INDUSTRY TO RESPOND MORE QUICKLY TO THE PROBLEMS POSED BY
INACTIVE SITES AND WILL ALSO ALLOW INDUSTRIAL WASTE TREATMENT EXPERTISE
TO BE BROUGHT FULLY TO BEAR ON THESE IMPORTANT PROBLEMS.
FINALLY, TFI ALSO RECOMMENDS THAT IN ORDER TO PROVIDE THE NECESSARY
"TEETH" TO THE PROVISIONS DESIGNED TO BRING WRONGFUL DUMPERS TO ACCOUNT,
THE LEGISLATION SHOULD PROVIDE ADDITIONAL RESOURCES TO BOTH EPA AND THE
DEPARTMENT OF JUSTICE FOR THE INVESTIGATION OF INACTIVE AND ABANDONED
HAZARDOUS WASTE DISPOSAL SITES AND THE CONDUCT OF CIVIL AND CRIMINAL
ACTIONS WHERE NECESSARY.
SUPPLEMENTAL STATEMENT TO THE TESTIMONY OF WHEELER E P
790906
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 016 OF 54
WHEELER E P PRESIDENT
THE FERTILIZER INSTITUTE
U.S. SENATE ENVIRONMENT AND PUBLIC WORKS COMMITTEE RESOURCE
PROTECTION AND ENVIRONMENTAL POLLUTION SUBCOMMITTEE
104579
HEARINGS
SENATE
UNDER S.1341 THE FOUD WOULD BE MAINTAINED PRIMARILY FROM FEES
ASSESSED ON CERTAIN SEGMENTS OF THE CHEMICAL INDUSTRY INCLUDING,
PARTICULARLY, THE FERTILIZER INDUSTRY. UNDER S.1480 THE FUND WOULD BE
MAINTAINED BY AN UNSPECIFIED FEE ON THE PRODUCTION OF UNSPECIFIED
HAZARDOUS SUBSTANCES AND THE GENERATION OF UNSPECIFIC HAZARDOUS WASTE.
TFI BELIEVES THAT BOTH OF THESE FUNDING SCHEMES RUN AFFOUL OF THE
CONSTITUTIONAL REQUIREMENTS CONCERNING THE ORIGIN OF REVENUE MEASURES.
TFI ALSO BELIEVES THAT BOTH OF THESE FUNDING SCHEMES FACE DIFFICULTIES
OF CONSTITUTIONAL PROPORTIONS IN THAT NEITHER FEE SYSTEM IS APPORTIONED
ON THE BASIS OF THE BENEFIT TO THE PAYOR OF THE ACTIVITY FOR WHICH THE
FEE IS BEING EXACTED.
BEYOND THEIR CONSTITUTIONAL INFIRMITIES, TFI BELIEVES THAT BOTH
FUNDING SCHEMES ARE CLEARLY INEQUITABLE AND REPRESENT UNSOUND PUBLIC
POLICY IN THAT THEY PLACE THE BURDEN FOR YESTERDAY'S FAILURES AND
SHORTCOMINGS ON TODAY'S INDUSTRY. INDEED, MANY OF THE PROBLEMS WITH
PAST DISPOSAL PRACTICES WHICH ARE ONLY NOW COMING TO LIGHT WERE UNKNOWN
AND EVEN UNKNOWABLE AT THE TIME DISPOSAL ACTUALLY TOOK PLACE. IT
APPEARS THAT THE MAJORITY OF PAST HAZARDOUS WASTE DISPOSAL WAS
UNDERTAKEN IN COMPLIANCE WITH THE "STATE OF THE ART" AND THEN CURRENT
REGULATORY REQUIREMENTS. IT IS PLAINLY UNFAIR TO TAX THOSE WHOSE PAST
AND CURRENT WASTE DISPOSAL PRACTICES ARE PROPER AND IN ACCORD WITH ALL
REQUIREMENTS TO PAY FOR THE MISTAKES, NEGLIGENCE AND CULPABILITY OF THE
PAST.
SUPPLEMENTAL STATEMENT TO THE TESTIMONY OF WHEELER E P
790906
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 017 OF 54
WHEELER E P PRESIDENT
THE FERTILIZER INSTITUTE
U.S. SENATE ENVIRONMENT AND PUBLIC WORKS COMMITTEE RESOURCE
PROTECTION AND ENVIRONMENTAL POLLUTION SUBCOMMITTEE
104580
HEARINGS
SENATE
THE TREATMENT OF THE FERTILIZER INDUSTRY UNDER EITHER PROPOSED
FUNDING SCHEME IS PERHAPS THE BEST AVAILABLE EXAMPLE OF THE GROSS
INEQUITIES WHICH WILL RESULT FROM THE ENACTMENT OF EITHER S.1341 OR
S.1480. AS PREVIOUSLY DISCUSSED, UNDER EITHER MEASURE THE FERTILIZER
INDUSTRY ALONE WOULD BE REQUIRED TO CONTRIBUTE APPROXIMATELY $60 MILLION
PER YEAR TO THE FUND OR APPROXIMATELY 60% OF THE TOTAL FEES WHICH WOULD
BE IMPOSED ON THE INORGANIC CHEMICAL INDUSTRY UNDER S.1341. YET BASED
ON THE RESPONSES OBTAINED FROM EPA UNDER THE FREEDOM OF INFORMATION ACT,
NOT A SINGLE INACTIVE HAZARDOUS WASTE DISPOSAL SITE HAS BEEN LISTED FOR
FERTILIZER PRODUCTION OR ANY OF ITS IMMEDIATE BY-PRODUCTS.
IN A LETTER DATED JUNE 2, 1979, THE FERTILIZER INSTITUTE REQUESTED
UNDER THE FREEDOM OF INFORMATION ACT A COPY OF THE MOST CURRENT LIST OF
WASTE DISPOSAL SITES CONSIDERED BY EPA TO BE POTENTIALLY HAZARDOUS AS
WELL AS ANY RECORDS WHICH INDICATED THE PRESENCE OF ANY FERTILIZER
RELATED WASTE IN THOSE SITES.
IN RESPONSE THE EPA PROVIDED TWO DOCUMENTS AS FOLLOWS:
A MEMORDUM FROM DONNA A. FLETCHER, WRITER/EDITOR, PESTICIDES AND
TOXIC SUBSTANCES ENFORCEMENT DIVISION TO JEFFREY G. MILLER, DEPUTY
ASSISTANT ADMINISTRATOR FOR WATER ENFORCEMENT, ON THE SUBJECT: REVISED
SUMMARY -- HAZARDOUS WASTE SITES (6/1/79) INCLUDING AS ATTACHMENTS THE
"REVISED STATUS REPORT -- HAZARDOUS WASTE SITES" (55 PAGES) AND
"HAZARDOUS WASTE SITES REMOVED FROM EPA ACTIVE LIST" (17 PAGES).
SUPPLEMENTAL STATEMENT TO THE TESTIMONY OF WHEELER E P
790906
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 018 OF 54
WHEELER E P PRESIDENT
THE FERTILIZER INSTITUTE
U.S. SENATE ENVIRONMENT AND PUBLIC WORKS COMMITTEE RESOURCE
PROTECTION AND ENVIRONMENTAL POLLUTION SUBCOMMITTEE
104581
HEARINGS
SENATE
AND
"PRELIMINARY ASSESSMENT OF CLEANUP COSTS FOR NATIONAL HAZARDOUS WASTE
PROBLEMS", A 1979 REPORT PREPARED FOR EPA, OFFICE OF SOLID WASTES, UNDER
CONTRACT NO. 68-01-5063.
THE "REVISED STATUS REPORT -- HAZARDOUS WASTES SITES" CONTAINS A
LISTING OF 151 HAZARDOUS WASTES SITES THROUGHOUT THE UNITED STATES WHICH
HAVE BEEN IDENTIFIED AS A RESULT OF THE "EFFORT TO DETERMINE THE EXTENT
OF HAZARDOUS WASTE PROBLEM IN THE NATION". THIS EFFORT WAS STARTED IN
OCTOBER 1978 UPON DIRECTION OF MR. THOMAS C. JORLING EPA'S ASSISTANT
ADMINISTRATOR FOR WATER AND WASTE MANAGEMENT TO EPA REGIONAL OFFICES TO
PREPARE AN INVENTORY OF "HAZARDOUS WASTE STORAGE OR DISPOSAL SITUATIONS
WHICH POSE A CURRENT OR POTENTIAL HAZARD TO PUBLIC HEALTH." REVIEW OF
THE LISTING REVEALS NO HAZARDOUS WASTE SITES ATTRIBUTABLE TO FERTILIZER
PRODUCTS OR WASTES. IN FACT, TWO SITES ASSOCIATED WITH THE FERTILIZER
INDUSTRY WHICH WERE PLACED ON THE HASTILY PREPARED EARLIER VERSION OF
THE LIST IN NOVEMBER, 1978, HAVE BEEN REMOVED. UPON A MORE CAREFUL
INVESTIGATION BY EPA PERSONNEL BOTH SITES WERE FOUND TO BE NOT ABANDONED
OR UNCONTROLLED, BUT RATHER IN "GOOD CONDITION" AND NOT POSING A HAZARD.
IT APPEARS, THEREFORE, THAT THE FERTILIZER INDUSTRY HAS A COMPLETELY
CLEAN RECORD WITH EPA INSOFAR AS ABANDONED OR INACTIVE HAZARDOUS WASTE
DISPOSAL SITES ARE CONCERNED.
SUPPLEMENTAL STATEMENT TO THE TESTIMONY OF WHEELER E P
790906
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 019 OF 54
WHEELER E P PRESIDENT
THE FERTILIZER INSTITUTE
U.S. SENATE ENVIRONMENT AND PUBLIC WORKS COMMITTEE RESOURCE
PROTECTION AND ENVIRONMENTAL POLLUTION SUBCOMMITTEE
104582
HEARINGS
SENATE
FURTHERMORE, IT IS NOT SCIENTIFICALLY POSSIBLE FOR THE FERTILIZER
INDUSTRY'S MAJOR PRODUCT TO EVER BE FOUND IN AN INACTIVE OR ABANDONED
WASTE SITE. THE LARGEST VOLUME PRODUCT OF THE FERTILIZER INDUSTRY IS
ANHYDROUS AMMONIA. PRODUCTION IS CURRENTLY AT 17 MILLION TONS PER YEAR.
WHEN TRANSPORTED, ANHYDROUS AMMONIA IS UNDER PRESSURE AND IN LIQUID
FORM. WHEN RELEASED (USUALLY WHEN A FARMER APPLIES IT TO THE SOIL) IT
TURNS INTO A GASEOUS STATE. IN THE GASEOUS STATE ANHYDROUS AMMONIA
DISSIPATES QUICKLY IN THE ATMOSPHERE LEAVING ABSOLUTELY NO RESIDUAL
BY-PRODUCT. CONSEQUENTLY, IT IS NOT SCIENTIFICALLY POSSIBLE FOR ANY
ANHYDROUS AMMONIA PRODUCED BY THE FERTILIZER INDUSTRY TO BE CONTAINED IN
AN INACTIVE OR ABANDONED HAZARDOUS WASTE DISPOSAL SITE. NONETHELESS,
UNDER S.1341 (AND UNDER S.1480 AS IT IS LIKELY TO BE ADMINISTERED)
ANHYDROUS AMMONIA PRODUCERS IN THE FERTILIZER INDUSTRY WOULD BE REQUIRED
TO PAY APPROXIMATELY $16 MILLION A YEAR FOR MAINTENANCE OF THE
SUPERFUND. $16 MILLION A YEAR FROM AN INDUSTRY WHICH DOES NOT, AND, IN
FACT, COULD NOT CONTRIBUTE TO THE PROBLEMS WHICH THE FEES ARE EARMARKED
TO SOLVE.
FOR ALL THESE REASONS, THE FERTILIZER INDUSTRY, AN INDUSTRY WITH AN
APPARENTLY CLEAN RECORD AND A PRINCIPAL PRODUCT WHICH CANNOT POSSIBLY
CONTRIBUTE TO THE PROBLEM, OBJECTS MOST STRONGLY TO BEING REQUIRED TO
CONTRIBUTE TO THE SOLUTION OF A PROBLEM WHICH IT DID NOT AND, TO A LARGE
EXTENT, COULD NOT HAVE CAUSED.
SUPPLEMENTAL STATEMENT TO THE TESTIMONY OF WHEELER E P
790906
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 020 OF 54
WHEELER E P PRESIDENT
THE FERTILIZER INSTITUTE
U.S. SENATE ENVIRONMENT AND PUBLIC WORKS COMMITTEE RESOURCE
PROTECTION AND ENVIRONMENTAL POLLUTION SUBCOMMITTEE
104583
HEARINGS
SENATE
TFI RECOMMENDS THAT THE PROVISIONS OF THE BILL CONCERNING FUND
MAINTENANCE TO BE REVISED TO PROVIDE FOR CREATION AND MAINTENANCE OF THE
FUND FROM REGULAR FEDERAL APPROPRIATIONS, FUNDS CONTRIBUTED BY THE
STATES TO EFFECTUATE LONG TERM SOLUTIONS FOR GIVEN INACTIVE OR ABANDONED
HAZARDOUS WASTE DISPOSAL SITES AND FROM WRONGFUL DUMPERS. MAINTAINING
THE FUND WITH PUBLIC MONIES RECOGNIZES THE ESSENTIALLY SOCIETAL NATURE
OF THE INACTIVE AND ABANDONED HAZARDOUS WASTE DISPOSAL SITE PROBLEM.
SUCH PUBLIC FUNDING WILL ALSO AVOID THE GROSS INEQUITY OF PENALIZING
INDUSTRIES SUCH AS THE FERTILIZER INDUSTRY FOR PROBLEMS WHICH THEY DID
NOT AND, TO A LARGE EXTENT, COULD NOT HAVE CAUSED. THE ENACTMENT AND
ENFORCEMENT OF STRINGENT RECOUPMENT PROVISIONS WILL ENSURE THAT BOTH
GENERATORS AND DISPOSERS OF HAZARDOUS WASTE WHOSE PRACTICES AND
PERFORMANCE HAVE NOT COME UP TO APPLICABLE STANDARDS WILL BEAR THEIR
FAIR SHARE OF THE CLEAN UP BILL.
BOTH S.1341, THE ADMINISTRATION MEASURE, AND S.1480 WOULD EXTEND THE
SUPERFUND CONCEPT TO FUTURE SPILLS OF HAZARDOUS SUBSTANCES.
AT THE OUTSET, TFI WOULD LIKE TO EMPHASIZE ITS VIEW THAT IT IS
INAPPROPRIATE AND UNNECCESSARY TO ADDRESS THE ESSENTIALLY UNRELATED
PROBLEMS OF HAZARDOUS SUBSTANCES SPILLS AND INACTIVE AND ABANDONED
HAZARDOUS WASTE DISPOSAL SITES UNDER THE SAME HIGHLY COMPLEX PIECE OF
LEGISLATION.
SUPPLEMENTAL STATEMENT TO THE TESTIMONY OF WHEELER E P
790906
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 021 OF 54
WHEELER E P PRESIDENT
THE FERTILIZER INSTITUTE
U.S. SENATE ENVIRONMENT AND PUBLIC WORKS COMMITTEE RESOURCE
PROTECTION AND ENVIRONMENTAL POLLUTION SUBCOMMITTEE
104584
HEARINGS
SENATE
HAZARDOUS SUBSTANCES SPILLS AND HAZARDOUS WASTE DISPOSAL SITES DIFFER
SIGNIFICANTLY IN VIRTUALLY EVERY IMPORTANT ASPECT. A HAZARDOUS
SUBSTANCES SPILL NORMALLY INVOLVES A HOMOGENEOUS SUBSTANCE.
CONSEQUENTLY, THE EFFECTS OF THE SPILL AND THE APPROPRIATE REMEDIAL
ACTIONS ARE USUALLY ASCERTAINABLE. IN CONTRAST, HAZARDOUS WASTE
DISPOSAL SITES USUALLY INVOLVE A COMPLEX COMBINATION OF MATERIALS MAKING
THE DETERMINATION OF EFFECTS AND REMEDIAL MEASURES DIFFICULT. EVEN MORE
IMPORTANTLY, THE REMEDIAL MEASURES NECESSARY IN THE CASE OF A ONE TIME
SPILL TO SURFACE LAND OR WATERS WILL ALMOST ALWAYS BE ENTIRELY DIFFERENT
FROM THOSE NECESSARY IN THE CASE OF THE SLOW MULTI-POLLUTANT LEACHING
AND GROUND WATER CONTAMINATION GENERALLY ASSOCIATED WITH ABANDONED AND
INACTIVE HAZARDOUS WASTE DISPOSAL SITES. BECAUSE OF THESE ESSENTIAL
DIFFERENCES, CONGRESS HAS, TO DATE, CHOSEN TO DEAL WITH WASTE DISPOSAL
SITES AND CHEMICAL SPILLS IN ENTIRLLY DIFFERENT LAWS. SOLID WASTE
DISPOSAL SITES ARE ADDRESSED IN THE RESOURCE AND CONSERVATION RECOVERY
ACT WHILE HAZARDOUS SUBSTANCES SPILLS ARE REGULATED UNDER THE CLEAN
WATER ACT. THERE APPEARS TO BE NO REAL ENVIRONMENTAL REASON FOR NOW
ABANDONING THIS LOGICAL DISTINCTION AND ATTEMPTING TO REGULATE TWO
ENTIRELY DIFFERENT PROBLEMS UNDER THE SAME LEGISLATION.
SPILLS OF HAZARDOUS SUBSTANCES
WHEN THE SUPERFUND APPROACH TO THE HAZARDOUS SUBSTANCES SPILLS
PROBLEM IS CONSIDERED ON ITS OWN MERITS, IT SEEMS CLEAR THAT, AS OPPOSED
TO THE SITUATION WHICH APPERTAINS IN THE CASE OF INACTIVE OR ABANDONED
HAZARDOUS WASTE DISPOSAL SITES, EXISTING LAW ADEQUATELY REGULATES THE
PROBLEMS ASSOCIATED WITH SPILLS OF HAZARDOUS SUBSTANCES.
SUPPLEMENTAL STATEMENT TO THE TESTIMONY OF WHEELER E P
790906
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 022 OF 54
WHEELER E P PRESIDENT
THE FERTILIZER INSTITUTE
U.S. SENATE ENVIRONMENT AND PUBLIC WORKS COMMITTEE RESOURCE
PROTECTION AND ENVIRONMENTAL POLLUTION SUBCOMMITTEE
104585
HEARINGS
SENATE
MICROFORM REFILMED; SEE APPENDICES
SECTION 311 OF THE CLEAN WATER ACT WAS LAST AMENDED IN 1978. THE
MAJOR PROVISIONS OF THE SECTION HAVE BEEN IN PLACE FOR SOME SEVEN YEARS,
HAVE ALREADY BEEN SUBJECTED TO JUDICIAL REVIEW AND PROVIDE A
COMPREHENSIVE SCHEME FOR DEALING WITH PROBLEMS CAUSED BY SPILLS OF
HAZARDOUS MATERIALS. SECTION 311 ALREADY PROVIDES FOR:
1. THE ONGOING AUTHORITY FOR EPA TO LIST SUBSTANCES WHICH MAY BE
HAZARDOUS IF SPILLED (FINAL REGULATIONS LISTING 299 SUCH SUBSTANCES AND
PROPOSING TO LIST A NUMBER OF OTHERS WERE PROMULGATED BY EPA ON AUGUST
29, 1979, 44 FED. REG. 50777);
2. CRIMINAL PENALTIES FOR THE FAILURE TO PROMPTLY REPORT SPILLS OF
LISTED SUBSTANCES;
3. AUTHORITY FOR EPA TO ACT PROMPTLY TO CONTAIN AND MITIGATE SPILLS
WHERE THE SPILLER IS UNKNOWN OR FAILS TO TAKE NECESSARY ACTIONS;
4. ANNUAL AUTHORIZATION OF 35 MILLION DOLLARS FOR EPA RESPONSE
ACTIONS AS WELL AS RESTORATION OF ANY AREAS DAMAGED BY A SPILL;
5. RECOVERY OF MONIES EXPENDED FOR CONTAINMENT, CLEANUP AND
RESTORATION THROUGH LEGAL ACTIONS AGAINST SPILLERS; AND
6. SIGNIFICANT PENALTIES FOR VIOLATION OF ALL IMPORTANT PROVISIONS
OF SECTION 311.
IN ADDITION, SECTION 504 OF THE CLEAN WATER ACT AUTHORIZES EPA TO
TAKE WHATEVER ACTIONS ARE NECESSARY "TO PREVENT, LIMIT OR MITIGATE
IMMINENT OR SUBSTANTIAL DANGEF FROM ANY POLLUTANT".
SUPPLEMENTAL STATEMENT TO THE TESTIMONY OF WHEELER E P
790906
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 023 OF 54
WHEELER E P PRESIDENT
THE FERTILIZER INSTITUTE
U.S. SENATE ENVIRONMENT AND PUBLIC WORKS COMMITTEE RESOURCE
PROTECTION AND ENVIRONMENTAL POLLUTION SUBCOMMITTEE
104586
HEARINGS
SENATE
THE CLEAN WATER ACT AUTHORIZES AN ANNUAL APPROPRIATION OF $10 MILLION
TO PAY FOR "IMMINENT HAZARD" ACTIONS UNDER SECTION 504.
IN SUMMARY, EXISTING LAW PROVIDES A COMPREHENSIVE REGULATORY SCHEME
TO ADDRESS THE PROBLEMS ASSOCIATED WITH SPILLS OR HAZARDOUS SUBSTANCES
AND AUTHORIZES $45 MILLION ANNUALLY TO PAY FOR THE PROGRAM.
CONSEQUENTLY, IT IS TFI'S OPINION THAT NEW LEGISLATION WHICH ESSENTIALLY
OVERLAPS AND, IN MANY CASES, DUPLICATES EXISTING LAW IS NEITHER
NECESSARY NOR JUSTIFIED.
A SUPERFUND FOR HAZARDOUS SUBSTANCES SPILLS
THE EXISTING DATA BASE ON THE FREQUENCY AND EFFECTS OF HAZARDOUS
SUBSTANCES SPILLS IS WOEFULLY INADEQUATE AND CANNOT POSSIBLY SUPPORT THE
ENACTMENT OF THE MEASURES CONTEMPLATED IN S.1341 AND S.1480.
IN ITS FREEDOM OF INFORMATION ACT REQUEST TO EPA, TFI SOUGHT RECORDS
CONCERNING, INTER ALIA, THE FREQUENCY AND NATURE OF HAZARDOUS SUBSTANCES
SPILLS REPORTED TO EPA. EPA'S RESPONSE INDICATED THAT ONLY 131 SEPARATE
HAZARDOUS SUBSTANCES SPILLS HAD BEEN REPORTED TO EPA DURING THE YEARS
1977, 1978 AND THE FIRST HALF OF 1979. SIXTY, OR ALMOST HALF, OF THE
SPILLS WERE REPORTED DURING 1978. EIGHTY FIVE TO NINETY PERCENT OF THE
1978 SPILLS WERE RAILROAD RELATED. FURTHERMORE, AVAILABLE INFORMATION
INDICATES THAT, IN THE VAST MAJORITY OF CASES, THE PARTY RESPONSIBLE FOR
A SPILL READILY ASSUMES THE RESPONSIBILITY FOR NECESSARY CLEAN-UP
ACTIONS.
SUPPLEMENTAL STATEMENT TO THE TESTIMONY OF WHEELER E P
790906
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 024 OF 54
WHEELER E P PRESIDENT
THE FERTILIZER INSTITUTE
U.S. SENATE ENVIRONMENT AND PUBLIC WORKS COMMITTEE RESOURCE
PROTECTION AND ENVIRONMENTAL POLLUTION SUBCOMMITTEE
104587
HEARINGS
SENATE
A RECENT STUDY DONE FOR EPA BY ARTHUR D. LITTLE INDICATES THAT 90% OF
SPILL CLEAN-UP COSTS ARE NOW BEING PAID BY INDUSTRY.
AN AVERAGE OF LESS THAN 55 HAZARDOUS SUBSTANCES SPILLS PER YEAR, THE
MAJORITY OF THEM OCCURRING DURING TRANSPORT, DO NOT APPEAR TO JUSTIFY
THE ENACTMENT OF A MEASURE WHICH WOULD TAX ONLY THE PRODUCERS OF CERTAIN
OF SUCH SUBSTANCES MANY MILLIONS OF DOLLARS PER YEAR TO FINANCE
GOVERNMENT RESPONSE TO THE SMALL PERCENTAGE OF SPILL INCIDENTS IN WHICH
THE SPILLER IS EITHER UNKNOWN OR REFUSES TO ACKNOWLEDGE HIS LEGAL AND
SOCIAL RESPONSIBILITY FOR SPILL CLEAN-UP.
IN THE 1978 AMENDMENTS TO THE CLEAN WATER ACT, CONGRESS RECOGNIZED
THE INADEQUACY OF THE CURRENT DATA BASE ON THE FREQUENCY, NATURE AND
EFFECTS OF HAZARDOUS SUBSTANCES SPILLS. IN NOVEMBER 1978, CONGRESS
DIRECTED EPA TO CONDUCT AN EIGHTEEN-MONTH STUDY OF THE HAZARDOUS
SUBSTANCES SPILL PROBLEM:
THE ADMINISTRATOR SHALL WITHIN 18 MONTHS AFTER THE DATE OF ENACTMENT
OF THIS PARACRAPH, CONDUCT A STUDY AND REPORT TO THE CONGRESS ON
METHODS, MECHANISMS, AND PROCEDURES TO CREATE INCENTIVES TO ACHIEVE A
HIGHER STANDARD OF CARE IN ALL ASPECTS OF THE OWNERS, OPERATORS, OR
PERSONS IN CHARGE OF ONSHORE FACILITIES, OFFSHORE FACILITIES, OR
VESSELS. THE ADMINISTRATOR SHALL INCLUDE IN SUCH STUDY (1) LIMITS OF
LIABILITY, (2) LIABILITY FOR THIRD PARTY DAMAGES, (3) PENALTIES AND
FEES, (4) SPILL PREVENTION PLANS, (5) CURRENT PRACTICES IN THE INSURANCE
AND BANKING INDUSTRIES, AND (6) WHETHER THE PENALTY ENACTED IN SUBCLAUSE
(BB) OF CLAUSE (III) OF SUBPARAGRAPH (B) OF SUBSECTION (B) (2) OF
SECTION 311 OF PUBLIC LAW 92-500 SHOULD BE ENACTED. (CLEAN WATER ACT,
SECTION 311(B)(2)(B), 33 U.S.C. SECTION 1311(B)(2)(B)).
SUPPLEMENTAL STATEMENT TO THE TESTIMONY OF WHEELER E P
790906
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 025 OF 54
WHEELER E P PRESIDENT
THE FERTILIZER INSTITUTE
U.S. SENATE ENVIRONMENT AND PUBLIC WORKS COMMITTEE RESOURCE
PROTECTION AND ENVIRONMENTAL POLLUTION SUBCOMMITTEE
104588
HEARINGS
SENATE
TFI SEES NO REASON WHY, APPROXIMATELY SIX MONTHS AFTER MANDATING THIS
STUDY, CONGRESS SHOULD NOW PROCEED TO LEGISLATE ON THE PRECISE ISSUES TO
BE ADDRESSED BY THE STUDY BEFORE IT HAS EVEN BEGUN.
AS PREVIOUSLY DISCUSSED, A TOTAL OF $45 MILLION IN ANNUAL
APPROPRIATIONS HAVE BEEN AUTHORIZED UNDER CURRENT LEGISLATION DEALING
WITH HAZARDOUS SUBSTANCE SPILLS. HOWEVER, IN THE CURRENT FISCAL YEAR,
ONLY $13 MILLION HAVE BEEN PROVIDED OUT OF AN ANNUAL APPROPRIATION OF
$35 MILLION CALLED FOR IN SECTION 311(K) OF THE CLEAN WATER ACT.
FURTHERMORE, NO MONEY WHATSOEVER HAS BEEN PROVIDED UNDER SECTION 504 OF
THE CLEAN WATER ACT WHICH AUTHORIZES AN ANNUAL APPROPRIATION OF $10
MILLION.
DESPITE THIS SITUATION, THE PROPOSED SUPERFUND LEGISLATION WOULD
ABANDON THE CURRENT PROGRAM FOR AN APPROACH UNDER WHICH SELECTIVE
SEGMENTS OF THE INDUSTRIAL SECTOR WOULD BE ASSESSED A FEE TO FINANCE
HAZARDOUS SUBSTANCE SPILL RESPONSE IN THE ABSENCE OF SIGNIFICANT
RELIABLE DATA TO DEMONSTRATE THAT THE INDUSTRIES ASSESSED ARE
RESPONSIBLE FOR THE PROBLEMS TO BE ADDRESSED.
ONCE AGAIN, THE FERTILIZER INDUSTRY PROVIDES AN EXCELLENT EXAMPLE OF
THE INEQUITIES INHERENT IN THE SUPERFUND APPROACH TO THE HAZARDOUS
SUBSTANCES SPILL PROBLEM. IN THE BACK-UP MATERIALS SUBMITTED IN SUPPORT
OF S.1341, EPA ATTEMPTED TO JUSTIFY THE ASSESSMENT OF ENORMOUS FEES ON
THE FERTILIZER INDUSTRY BY STATING REPRESENT A VERY LARGE PART OF THE
VOLUME OF HAZARDOUS SUBSTANCES WHICH ARE MANUFACTURED AND SPILLED EACH
YEAR".
SUPPLEMENTAL STATEMENT TO THE TESTIMONY OF WHEELER E P
790906
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 026 OF 54
WHEELER E P PRESIDENT
THE FERTILIZER INSTITUTE
U.S. SENATE ENVIRONMENT AND PUBLIC WORKS COMMITTEE RESOURCE
PROTECTION AND ENVIRONMENTAL POLLUTION SUBCOMMITTEE
104589
HEARINGS
SENATE
IN AN EFFORT TO DETERMINE THE SOURCE OF THE ALLEGATION, THE
FERTILIZER INSTITUTE, IN ITS JUNE 25, 1979 FREEDOM OF INFORMATION ACT
REQUEST, REQUESTED THAT THE EPA PROVIDE THE FOLLOWING DOCUMENTS:
A. ANY RECORDS DISCLOSING THE NUMBER AND VOLUME OF AMMONIA AND OTHER
FERTILIZER MATERIALS SPILLS WHICH OCCURRED DURING ALL YEARS FOR WHICH
SUCH RECORDS ARE AVAILABLE;
B. ANY RECORDS DISCLOSING THE NUMBER AND VOLUME OF SPILLS OF OTHER
MATERIALS CONSIDERED "HAZARDOUS" BY EPA WHICH OCCURRED DURING ALL YEARS
FOR WHICH SUCH RECORDS ARE AVAILABLE;
C. ANY RECORDS WHICH SHOW THAT AMMONIA AND OTHER FERTILIZER
MATERIALS CONSTITUTE A "VERY LARGE PART OF THE VOLUME OF HAZARDOUS
SUBSTANCES. . .SPILLED EACH YEAR" INCLUDING ANY RECORDS OF THE VOLUME OF
VARIOUS HAZARDOUS SUBSTANCES SPILLED AS A PERCENTAGE OF THE VOLUME OF
SUCH SUBSTANCES MANUFACTURED AND IMPORTED;
D. ANY RECORDS WHICH INDICATE THE DEGREE OF THE ENVIRONMENTAL DAMAGE
CAUSED BY THE SPILLS OF AMMONIA AND OTHER FERTILIZER MATERIALS FOR WHICH
RECORDS ARE PROVIDED PURSUANT TO THIS REQUEST.
IN RESPONSE TO THIS REQUEST, THE EPA SUBMITTED THE FOLLOWING
DOCUMENTS:
1. ONE PAGE ENTITLED "HAZARDOUS SUBSTANCES SPILL STATISTICS";
2. ONE PAGE ENTITLED "TEN HAZARDOUS SUBSTANCES MOST FREQUENTLY
SPILLED";
3. TEN PAGE TABLE DESIGNATED "SIGNIFICANT HAZARDOUS MATERIAL SPILLS
REPORTED TO EPA IN 1977";
SUPPLEMENTAL STATEMENT TO THE TESTIMONY OF WHEELER E P
790906
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 027 OF 54
WHEELER E P PRESIDENT
THE FERTILIZER INSTITUTE
U.S. SENATE ENVIRONMENT AND PUBLIC WORKS COMMITTEE RESOURCE
PROTECTION AND ENVIRONMENTAL POLLUTION SUBCOMMITTEE
104590
HEARINGS
SENATE
4. ONE PAGE SAMPLE DESIGNATED "SIGNIFICANT HAZARDOUS MATERIAL SPILLS
REPORTED TO EPA IN 1978";
5. THREE PAGE TABLE DESIGNATED "SIGNIFICANT HAZARDOUS MATERIAL
SPILLS REPORTED TO EPA IN 1979";
6. ONE PAGE TABLE ENTITLED "SPILLS OF HAZARDOUS CHEMICALS APRIL 1977
THROUGH JUNE 1978" WITH ACCOMPANYING LETTER TO EPA FROM STATE
7. FOUR PAGES OF TABLES ENTITLED "DISTRIBUTION OF THE HAZARDOUS
COMMODITY SPILLS" WITH ONE PAGE COVERING LETTER TO EPA FROM MOSSMAN
ASSOCIATES, INC.;
8. ONE PAGE ENTITLED "TABLE 7 TOP VOLUME CHEMICALS U.S. PRODUCTION
1976-1977"; AND
9. TWO PAGE DATA SHEET FOR AMMONIA, SULFURIC ACID, PHOSPHORIC ACID,
NITRIC ACID.
THE TABLES DESIGNATED "SIGNIFICANT HAZARDOUS MATERIAL SPILLS REPORTED
TO EPA FOR 1977, 1978 AND 1979 REPORTED 131 SEPARATE SPILLS. THE
RESPONSE FROM THE EPA HIGHLIGHTED THE PARTICULAR SPILLS WHICH WERE
CONSIDERED FERTILIZER RELATED. IT IS HIGHLY QUESTIONABLE WHETHER MORE
THAN ONE OF THE 20 SPILLS INDICATED BY EPA WERE, IN FACT, FERTILIZER
RELATED. INDEED, IN ONE CASE IN WHICH EPA ATTRIBUTED A SPILL OF NITRIC
ACID PLUS AMMONIUM NITRATE TO THE FERTILIZER INDUSTRY, THE SPILL
ACTUALLY OCCURRED IN AN AMMUNITION DEPOT ACCIDENT IN KINGSPORT,
TENNESSEE. FIVE CASES WERE SPILLS OF SULFURIC ACID WHICH OCCURRED
DURING TRANSPORTATION. SULFURIC ACID IS USED FOR MANY INDUSTRIAL
PURPOSES. IN EXCESS OF 90% OF THE SULFURIC ACID USED IN THE PRODUCTION
OF FERTILIZER MATERIALS IS PRODUCED AND CONSUMED IN THE SAME PLANT
WITHOUT SHIPMENT. ACCORDINGLY, IT IS NOT PROBABLE THAT ANY OF THESE
SPILLS OF SULFURIC ACID WERE FERTILIZER RELATED.
SUPPLEMENTAL STATEMENT TO THE TESTIMONY OF WHEELER E P
790906
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 028 OF 54
WHEELER E P PRESIDENT
THE FERTILIZER INSTITUTE
U.S. SENATE ENVIRONMENT AND PUBLIC WORKS COMMITTEE RESOURCE
PROTECTION AND ENVIRONMENTAL POLLUTION SUBCOMMITTEE
104591
HEARINGS
SENATE
OF SIX SPILLS OF ANHYDROUS AMMONIA, FOUR OCCURRED AS A RESULT OF A
TRAIN DERAILMENT, ONE INVOLVED A BARGE ACCIDENT AND ONE WAS AT A
MANUFACTURING SITE WHICH DOES NOT PRODUCE FERTILIZERS.
THREE OF THE FOUR SPILLS INVOLVING AMMONIUM NITRATE RESULTED FROM A
TRAIN DERAILMENT. THE FOURTH WAS THE SPILL AT THE TENNESSEE AMMUNITION
DUMP.
IN SUMMARY, OF THE 20 SPILLS, 15 WERE TRANSPORTATION RELATED. ONLY
ONE OF THE 5 PLANT SITE SPILLS WAS CLEARLY ASSOCIATED WITH A FERTILIZER
PLANT.
THE TABLE "SPILLS OF HAZARDOUS CHEMICALS APRIL 1977 THROUGH JUNE
1978" TRANSMITTED TO THE EPA BY THE STATE OF NEW JERSEY, LISTS A
TWENTY-ONE WERE INDICATED BY EPA TO BE FERTILIZER RELATED -- TWO
AMMONIATES, THREE NITRIC ACID, TWO PHOSPHORIC ACID AND 13 SULFURIC ACID.
IT IS HIGHLY SPECULATIVE AS TO HOW MANY ACTUALLY WERE FERTILIZER
RELATED, IN PART DUE TO THE ABSENCE OF MAJOR FERTILIZER FACILITIES IN
NEW JERSEY.
THE TABLE ENTITLED, "DISTRIBUTION OF HAZARDOUS COMMODITY SPILLS BY
RAIL, MOTOR AND WATER TRANSPORTATION", (CONSTITUTING A PART OF THE
REPORT TO THE EPA BY MOSHMAN ASSOCIATES, INC.) COVERS A TOTAL OF 648
SPILLS. OF THESE, 22 OR ONLY APPROXIMATELY THREE PER CENT, WERE OF
ANHYDROUS AMMONIA. EIGHTY-ONE WERE OF SULFURIC ACID, AND FOR THE
REASONS CITED ABOVE, IT IS UNLIKELY THAT ANY OF THESE WERE FERTILIZER
RELATED.
SUPPLEMENTAL STATEMENT TO THE TESTIMONY OF WHEELER E P
790906
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 029 OF 54
WHEELER E P PRESIDENT
THE FERTILIZER INSTITUTE
U.S. SENATE ENVIRONMENT AND PUBLIC WORKS COMMITTEE RESOURCE
PROTECTION AND ENVIRONMENTAL POLLUTION SUBCOMMITTEE
104592
HEARINGS
SENATE
THIS REVIEW OF THE DATA SUBMITTED BY EPA DEMONSTRATED THAT FERTILIZER
INDUSTRY MATERIALS CONSTITUTE A MINISCULE PORTION OF THE HAZARDOUS
SPILLS WHICH OCCUR AND THAT SUBSTANTIALLY ALL OF THOSE WHICH DO OCCUR
ARE TRANSPORTATION RELATED. THE FERTILIZER PRODUCER PAYS A HIGH
TRANSPORTATION RATE ON HIS PRODUCTS AND RAW MATERIALS WHICH ARE
CLASSIFIED AS HAZARDOUS MATERIALS, INCLUDING ANHYDROUS AMMONIA, AMMONIUM
NITRATE, PHOSPHORIC, SULFURIC AND NITRIC ACID. THE CARRIER WHO CAUSES A
SPILL IS FINANCIALLY RESPONSIBLE AND DOES RESPOND IN DAMAGES AS
LIABILITY IS ESTABLISHED.
IN ADDITION, AND AS DISCUSSED PREVIOUSLY, ANHYDROUS AMMONIA BECOMES
GASEOUS WHEN SPILLED AND DISSIPATES RAPIDLY IN THE ATMOSPHERE. NO
RESIDUAL REMAINS TO BE CLEANED UP. YET, AS ALSO DISCUSSED PREVIOUSLY,
ANHYDROUS AMMONIA IS THE MAJOR FERTILIZER INDUSTRY PRODUCT AND WOULD
ACCOUNT FOR THE IMPOSITION OF SOME $16 MILLION IN FEES ANNUALLY.
IT MAY BE THAT, AS EPA HAS ASSERTED, "AMMONIA, OTHER FERTILIZER
MATERIALS, AND SULFURIC ACID REPRESENT A VERY LARGE PART OF THE VOLUME
OF HAZARDOUS SUBSTANCES WHICH ARE MANUFACTURED. . . EACH YEAR".
HOWEVER, TFI STRONGLY DISAGREES, ON THE BASIS OF THE ANALYSIS OF THE
AVAILABLE DATA AS PRESENTED ABOVE, THAT THE RECORD SHOWS THAT THESE
MATERIALS ARE A "VERY LARGE PART" OF THE VOLUME OF HAZARDOUS SUBSTANCES
"SPILLED" EACH YEAR.
THERE CAN BE NO DOUBT AND NO DISPUTE THAT THE RECORD DOES SHOW THAT,
TO THE EXTENT THAT THE FERTILIZER RELATED CHEMICALS IN QUESTION ARE
BEING SPILLED, THEY ARE NOT BEING SPILLED BY FERTILIZER PRODUCERS OR AT
FERTILIZER PRODUCTION FACILITIES. UNDER THESE CIRCUMSTANCES IT IS BOTH
INEQUITABLE AND IMPROPER THAT THE FERTILIZER INDUSTRY AND THE FOOD
CONSUMERS OF THIS COUNTRY BE REQUIRED TO BEAR THE FINANCIAL BURDEN OF
THE ACTIVITIES OF OTHERS.
BOTH S.1341 AND S.1480 WOULD APPLY JOINT, SEVERAL AND STRICT
LIABILITY TO ALL THOSE WHO CAUSE OR CONTRIBUTE TO A SPILL. TFI DOES NOT
BELIEVE THAT THE FACTS AS REFLECTED IN THE LEGISLATIVE RECORD JUSTIFY
THIS RADICAL CHANGE IN TRADITIONAL CONCEPTS OF LIABILITY FOR HAZARDOUS
SUBSTANCES SPILLS. FURTHERMORE, EXPERINCL TO DATE INDICATES THAT THE
CHANGE IS UNNECESSARY.
TFI'S REVIEW OF THE DATA RECEIVED FROM EPA IN RESPONSE TO TFI'S
FREEDOM OF INFORMATION ACT REQUEST DEMONSTRATES THAT THE LARGE MAJORITY
OF HAZARDOUS SUBSTANCES SPILLS ARE TRANSPORTATION RELATED. EIGHTY-FIVE
TO NINETY PERCENT OF ALL THE HAZARDOUS SUBSTANCES SPILLS REPORTED TO EPA
IN CALENDAR YEAR 1978 WERE RAILROAD RELATED. ANALYSIS OF THE SPILL
INCIDENTS REPORTED BY EPA AS INVOLVING FERTILIZER MATERIAL PRODUCES
APPROXIMATELY THE SAME PERCENTAGE OF TRANSPORTATION RELATED SPILLS.
EIGHTY-THREE PERCENT OF THE REPORTED SPILLS INVOLVING ANHYDROUS AMMONIA
WERE TRANSPORTATION RELATED. TRANSPORTATION RELATED SPILLS ACCOUNTED
FOR 75% OF THE INCIDENTS INVOLVING AMMONIUM NITRATE.
SUPPLEMENTAL STATEMENT TO THE TESTIMONY OF WHEELER E P
790906
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 030 OF 54
WHEELER E P PRESIDENT
THE FERTILIZER INSTITUTE
U.S. SENATE ENVIRONMENT AND PUBLIC WORKS COMMITTEE RESOURCE
PROTECTION AND ENVIRONMENTAL POLLUTION SUBCOMMITTEE
104593
HEARINGS
SENATE
OF THE TOTAL OF 20 SPILLS ATTRIBUTED BY EPA TO FERTILIZER RELATED
MATERIALS (AS WE HAVE SEEN IT IS HIGHLY QUESTIONABLE WHETHER THE VAST
MAJORITY OF THESE SPILLS WERE ACTUALLY FERTILIZER RELATED) 15, OR 75%,
WERE TRANSPORTATION RELATED.
GOING BACK TO ENGLISH COMMON LAW, IT HAS ALWAYS BEEN THE RULE THAT A
CARRIER IS LAWFULLY ENTITLED TO EXTRA COMPENSATION FOR HANDLING VALUABLE
OR DANGEROUS COMMODITIES. OUR NATION'S CARRIERS DO RECEIVE THIS HIGHER
COMPENSATION FOR HANDLING THESE HAZARDOUS MATERIALS UNDER THE TARIFFS
APPROVED BY THE INTERSTATE COMMERCE COMMISSION. IS IN THE SOLE AND
EXCLUSIVE CONTROL OF THE PRODUCT, IT IS THE CARRIER ALONE WHO IS
RESPONSIBLE FOR MISHAP TO THE LADING ITSELF OR FOR ANY FORESEEABLE
CONSEQUENCES TO OTHERS WHO MAY BE NAMED BY EITHER THE LADING OR
EQUIPMENT IN THE EVENT OF AN ACCIDENT. WHEN A RAILROAD ACCEPTS A TANK
CAR OF AMMONIA FOR SHIPMENT FROM A PRODUCER AT DONALDSONVILLE, LOUISIANA
TO A RETAIL DEALER AT EAST GRAVEL, IOWA, NEITHER THE SHIPPER NOR THE
RECEIVER CAN -- AS A MATTER OF LAW OR PRACTICALITY -- EXERT ANY CONTROL
OVER THE CARRIER. BOTH ARE AT THE EXCLUSIVE MERCY OF THE CARRIER AND
ITS EMPLOYEES. THE PROPOSAL FOR JOINT LIABILITY WOULD, IN EFFECT,
PENALIZE THE SHIPPER FOR THE MOST BLATANT AND OUTRAGEOUS ACTS OR
OMISSIONS BY THE CARRIER. INSTEAD, AS A MATTER OF PUBLIC POLICY IT
WOULD ENCOURAGE A RELAXATION OF THE INCENTIVES FOR CARRIERS TO EXERCISE
GREAT CARE AND CONCERN IN THE TRANSPORT OF HAZARDOUS MATERIAL.
SUPPLEMENTAL STATEMENT TO THE TESTIMONY OF WHEELER E P
790906
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 031 OF 54
WHEELER E P PRESIDENT
THE FERTILIZER INSTITUTE
U.S. SENATE ENVIRONMENT AND PUBLIC WORKS COMMITTEE RESOURCE
PROTECTION AND ENVIRONMENTAL POLLUTION SUBCOMMITTEE
104594
HEARINGS
SENATE
TFI SEES NOTHING ON THE FACE OF THE LEGISLATIVE RECORD WHICH
JUSTIFIES EITHER A RELAXATION OF THE CURRENT INCENTIVES FOR CARRIER CARE
OR THE IMPOSITION OF LIABILITY UPON FERTILIZER AND OTHER CHEMICAL
PRODUCERS FOR TRANSPORTATION RELATED SPILLS OVER WHICH THEY ARE
COMPLETELY POWERLESS TO EXERT ANY CONTROL.
THE SWEEPING CHANGES IN TRADITIONAL SPILL LIABILITY PRINCIPLES
EMBODIED IN S.1341 AND S.1480 ARE NOT ONLY UNJUSTIFIED. THEY ARE ALSO
UNNECESSARY. TFI MAINTAINS THAT LONG ESTABLISHED, LONG FUNCTIONING AND
WELL KNOWN PRINCIPLES OF STATE TORT LAW HAVE AND WILL CONTINUE TO
OPERATE EFFECTIVELY TO COMPENSATE THOSE WHO SUFFER DAMAGES AS A RESULT
OF A HAZARDOUS SUBSTANCE SPILL THROUGH RECOVERY AGAINST LIABLE PARTIES.
IN ALMOST EVERY CASE THE IDENTITY OF A SPILLER OF HAZARDOUS SUBSTANCES
IS KNOWN. SUCH A SPILLER IS LIABLE UNDER ESTABLISHED PRINCIPALS OF LAW
FOR INJURIES OCCASIONED BY THE SPILL. AS A MATTER OF FACT, WE KNOW OF
NO ACCIDENT INVOLVING OUR MATERIALS IN MODERN TIMES WHERE THOSE INJURED
WERE UNABLE TO OBTAIN REDRESS FROM THE RESPONSIBLE CARRIER.
IF THERE IS CONCERN WITH "THE LAW'S DELAY" THE REMEDY LIES IN REFORM
OF STATE TORT LAW AND NOT IN THE ENACTMENT IN A SWEEPING CHANGE IN
ANCIENT LIABILITY PRINCIPLES WHICH WILL IMPOSE LIABILITY SPILLED AND
WHICH IS LIKELY TO LEAD TO RESULTS CONTRARY TO ESTABLISHED PUBLIC
POLICY.
SUPPLEMENTAL STATEMENT TO THE TESTIMONY OF WHEELER E P
790906
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 032 OF 54
WHEELER E P PRESIDENT
THE FERTILIZER INSTITUTE
U.S. SENATE ENVIRONMENT AND PUBLIC WORKS COMMITTEE RESOURCE
PROTECTION AND ENVIRONMENTAL POLLUTION SUBCOMMITTEE
104595
HEARINGS
SENATE
FURTHERMORE, BY PAVING THE WAY FOR NUMEROUS TENUOUS DAMAGE CLAIMS,
THE LIABILITY PROVISIONS OF S.1480 ARE LIKELY TO SLOW DOWN RATHER THAN
SPEED UP JUSTIFIABLE RECOVERY OF THIRD PARTY CLAIMS.
A. LIABILITY FOR THE RELEASE OF HAZARDOUS SUBSTANCES
AS DISCUSSED ABOVE, TFI IS CONCERNED WITH THE EFFECTS OF THE
LIABILITY PROVISIONS OF S.1341 AND S.1480 AS THEY APPLY TO THE
REGULATION OF INACTIVE AND ABANDONED WASTE DISPOSAL SITES AND HAZARDOUS
SUBSTANCES SPILLS.
BEYOND THESE PROBLEMS, TFI IS DEEPLY CONCERNED THAT THE LIABILITY
PROVISIONS AS THEY APPLY GENERALLY TO THE RELEASE OF HAZARDOUS
SUBSTANCES WOULD IMPOSE A SUBSTANTIAL OPEN-ENDED LIABILITY ON THE
FERTILIZER PRODUCER, DISTRIBUTOR, RETAILER AND, INDEED, THE FARMER-USER
OF FERTILIZERS.
LET US TAKE THE MOST WIDELY USED FERTILIZER PRODUCT, ANHYDROUS
AMMONIA, AS AN EXAMPLE. AS TABLE III SHOWS WELL OVER ONE-HALF MILLION
FARMERS USE ANHYDROUS AMMONIA IN THE TOP TEN CONSUMPTION STATES ALONE.
THE METHOD USED ALMOST UNIVERSALLY BY FARMERS TO APPLY ANHYDROUS
AMMONIA INVOLVES THE DIRECT INJECTION OF AMMONIA VAPORS INTO THE GROUND
FROM APPROXIMATELY 1,000 GALLON CAPACITY VEHICLES PULLED BEHIND A
CULTIVATOR TYPE DEVICE. THESE VEHICLES ARE CALLED "NURSE TANKS" AND
THERE ARE SOME 275,000 CURRENTLY IN USE.
SUPPLEMENTAL STATEMENT TO THE TESTIMONY OF WHEELER E P
790906
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 033 OF 54
WHEELER E P PRESIDENT
THE FERTILIZER INSTITUTE
U.S. SENATE ENVIRONMENT AND PUBLIC WORKS COMMITTEE RESOURCE
PROTECTION AND ENVIRONMENTAL POLLUTION SUBCOMMITTEE
104596
HEARINGS
SENATE
TABLE III
NUMBER OF FARMERS USING ANHYDROUS AMMONIA, 1978,
TOP TEN STATES
TABLE OMITTED
SUPPLEMENTAL STATEMENT TO THE TESTIMONY OF WHEELER E P
790906
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 034 OF 54
WHEELER E P PRESIDENT
THE FERTILIZER INSTITUTE
U.S. SENATE ENVIRONMENT AND PUBLIC WORKS COMMITTEE RESOURCE
PROTECTION AND ENVIRONMENTAL POLLUTION SUBCOMMITTEE
104597
HEARINGS
SENATE
AMMONIA HAS BEEN DESIGNATED BY EPA AS A "HAZARDOUS SUBSTANCE" (44
FED. REG. 50777, AUGUST 29, 1979). THE DEFINITION OF THE TERM "ON-SHORE
FACILITY" INCLUDESD IN BOTH S.1341 AND S.1480 PLAINLY OF AMMONIA VAPORS
FROM SUCH AN "ON-SHORE FACILITY" COMES WITHIN THE DEFINITION OF
"RELEASE" OF A HAZARDOUS SUBSTANCE CONTAINED IN EACH OF THE SUPERFUND
MEASURES. SECTION 3(A)(2) OF S.1480 WOULD TOTALLY PROHIBIT "RELEASE" OF
A HAZARDOUS SUBSTANCE IN THE CIRCUMSTANCES SURROUNDING AMMONIA INJECTION
FROM A NURSE TANK. CONSEQUENTLY, THIS LEGISLATION WOULD MAKE THE
FARMER'S APPLICATION OF ANHYDROUS AMMONIA ILLEGAL.
S.1341, THE ADMINISTRATIVE MEASURE, DOES NOT TOTALLY PROHIBIT THE
RELEASE OF HAZARDOUS SUBSTANCES. HOWEVER, SECTION 602(B) DOES PROHIBIT
SUCH RELEASES "IN SUCH QUANTITIES AS MAY BE HARMFUL". IN THE FINAL
REGULATIONS ISSUED PURSUANT TO SECTION 311 OF THE CLEAN WATER ACT ON
AUGUST 29, 1979 EPA ESTABLISHED THE "REPORTABLE QUANTITY" OF AMMONIA
WHICH MAY BE HARMFUL AT 100 POUNDS. AS A MATTER OF FACT, ANHYDROUS
AMMONIA APPLICATION IN THE MAJOR CORN PRODUCING STATES AVERAGES OVER 150
POUNDS PER ACRE. THEREFORE, EVEN UNDER THE FORMULATION CONTAINED IN
S.1341, THE FARMER'S APPLICATION OF ANHYDROUS AMMONIA WOULD BE ILLEGAL
UNDER MOST CIRCUMSTANCES.
HAVING COMMITTED A PROHIBITED ACT, THE FARMER WOULD BE RESPONSIBLE
FOR ANY SPILL RESPONSE AND CLEAN-UP EFFORTS. MORE IMPORTANTLY, UNDER
S.1480, THE FARMER WOULD BE JOINTLY, SEVERALLY AND STRICTLY LIABLE FOR
ANY DAMAGES OCCASIONED BY HIS APPLICATION OF ANHYDROUS AMMONIA AND ANY
THIRD PARTY WHO CONSIDERED HIMSELF AGGRIEVED BY THAT APPLICATION COULD
BRING AN ACTION FOR CIVIL DAMAGES.
SUPPLEMENTAL STATEMENT TO THE TESTIMONY OF WHEELER E P
790906
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 035 OF 54
WHEELER E P PRESIDENT
THE FERTILIZER INSTITUTE
U.S. SENATE ENVIRONMENT AND PUBLIC WORKS COMMITTEE RESOURCE
PROTECTION AND ENVIRONMENTAL POLLUTION SUBCOMMITTEE
104598
HEARINGS
SENATE
SINCE VIRTUALLY EVERY APPLICATION OF ANHYDROUS AMMONIA WILL BE IN
VIOLATION OF THE PROHIBITION OF THE "RELEASE" OF A HAZARDOUS SUBSTANCE
AND SINCE THE STRICT LIABILITY PROVISIONS OF BOTH MEASURES WOULD IMPOSE
JOINT AND SEVERAL LIABILITY FOR SUCH A RELEASE "REGARDLESS OF
NEGLIGENCE, KNOWLEDGE, AND GOOD FAITH, INTENT, SURROUNDING
CIRCUMSTANCES, DEGREE OF CARE, OR ANY REASONABLE PRECAUTIONS", IT IS
DIFFICULT TO FORESEE A CIRCUMSTANCE UNDER WHICH A FARMER COULD DEFEND
HIMSELF AGAINST CLAIMS FOR CIVIL DAMAGES.
IT IS WELL KNOWN THAT THERE ARE INDIVIDUALS WHO ARE OPPOSED TO THE
USE OF COMMERCIAL FERTILIZERS AND CONSIDER ANY SUCH USE TO AND, INDEED,
PERILOUS TO THE FUTURE OF AMERICAN AGRICULTURE TO IMPOSE STRICT
LIABILITY ON THE FARMERS OF THIS COUNTRY AS WELL AS THE NATION'S
FERTILIZER PRODUCERS, DISTRIBUTORS AND RETAILERS.
NOT CONTENT WITH IMPOSING JOINT, SEVERAL AND STRICT LIABILITY, S.1480
WOULD VIRTUALLY REMOVE THE NECESSITY FOR ANY CLAIMANT TO PROVE THE
ELEMENTS OF CAUSATION TRADITIONALLY REQUIRED IN ORDER TO IMPOSE
LIABILITY FOR MEDICAL EXPENSES UPON A PARTICULAR DEFENDANT.
SUPPLEMENTAL STATEMENT TO THE TESTIMONY OF WHEELER E P
790906
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 036 OF 54
WHEELER E P PRESIDENT
THE FERTILIZER INSTITUTE
U.S. SENATE ENVIRONMENT AND PUBLIC WORKS COMMITTEE RESOURCE
PROTECTION AND ENVIRONMENTAL POLLUTION SUBCOMMITTEE
104599
HEARINGS
SENATE
MICROFORM REFILMED; SEE APPENDICES
SECTION 4(C) WOULD REQUIRE ONLY THAT A CLAIMANT DEMONSTRATE THAT "A
REASONABLE PERSON COULD CONCLUDE" THAT THE INJURY OR DISEASE COMPLAINED
OF WAS "REASONABLY RELATED' TO THE "RELEASE" COMPLAINED OF.
S.1480 WOULD WORK SWEEPING CHANGES IN TRADITIONAL CONCEPTS OF
CAUSATION IN AREAS OTHER THAN THE RECOVERY OF MEDICAL EXPENSES.
APPARENTLY, ABSOLUTELY NO SHOWING OF CAUSATION WOULD BE REQUIRED TO
RECOVER CLEAN-UP AND REMOVAL COSTS. THE SCOPE OF SUCH COSTS IS BROADLY
DEFINED AND THEIR EVENTUAL AMOUNT IS UNCONTROLLED BY THE STATUE AND LEFT
ENTIRELY TO THE UNILATERAL DETERMINATION, NOT ONLY OF THE GOVERNMENT,
BUT ALSO OF ANY PRIVATE INDIVIDUAL WHO INCURS SUCH COSTS.
IN ADDITION, ECONOMIC LOSSES MAY BE RECOVERED BY THIRD PARTIES MERELY
UPON A SHOWING THAT THE LOSSES ARE "RESULTING FROM" THE RELEASE OF
HAZARDOUS SUBSTANCES. THE OPERATIVE LANGUAGE, "RESULTING FROM", IS NOT
FURTHER DEFINED OR LIMITED AND COULD RESULT IN SUBSTANTIAL OPEN-ENDED
LIABILITY. ELIMINATION OF THE NEED TO DEMONSTRATE CAUSATION WOULD
ALMOST CERTAINLY PRODUCE A FLOOD OF THIRD PARTY DAMAGE CLAIMS. CLEARLY,
THE VAST MAJORITY OF FERTILIZER PRODUCERS AND VIRTUALLY EVERY FERTILIZER
RETAILER AND FARMER WOULD BE UNABLE TO PROVIDE SELF-INSURANCE AGAINST
SUCH CLAIMS. FURTHERMORE, IT APPEARS UNLIKELY THAT COMMERCIAL INSURANCE
COULD BE OBTAINED. DURING JULY SUBCOMMITTEE HEARINGS IN THE HOUSE OF
REPRESENTATIVES THE AMERICAN INSURANCE ASSOCIATION WARNED THAT "THE
DEMAND FOR INSURANCE COVERAGE TO SERVICE FEDERAL LIABILITY AND
COMPENSATION SYSTEMS MAY EXCEED TO INDUSTRY'S CAPACITY TO PROVIDE
PROTECTION."
SUPPLEMENTAL STATEMENT TO THE TESTIMONY OF WHEELER E P
790906
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 037 OF 54
WHEELER E P PRESIDENT
THE FERTILIZER INSTITUTE
U.S. SENATE ENVIRONMENT AND PUBLIC WORKS COMMITTEE RESOURCE
PROTECTION AND ENVIRONMENTAL POLLUTION SUBCOMMITTEE
104600
HEARINGS
SENATE
ON JULY 31, 1979, MR. JAMES L. KIMBLE, TESTIFYING ON BEHALF OF THE
AMERICAN INSURANCE ASSOCIATION, TOLD THE SUBCOMMITTEE ON COAST GUARD AND
NAVIGATION OF THE COMMITTEE ON MERCHANT MARINES AND FISHERIES THAT:
THE CURRENT STATE OF THE ART OF INSURING ON-SHORE FACILITIES FOR
POTENTIAL LIABILITY ASSOCIATED WITH HAZARDOUS SUBSTANCE RELEASES AND
HAZARDOUS WASTE DISPOSAL IS INADEQUATE TO ASSURE AN IMMEDIATE RESPONSE
TO THE NEED FOR INSURANCE COVERAGE TO RESPOND TO THE FINANCIAL
RESPONSIBILITY REQUIREMENTS ESTABLISHED IN THE BILLS INTRODUCED DURING
THE 96TH CONGRESS.
IN SUMMARY, TFI MAINTAINS THAT THE PROPOSED SUPERFUND LEGISLATION, AS
EMBODIED IN S.1341 AND S.1480 IS OVERLY BROAD, WOULD WORK SUBSTANTIAL
UNNECESSARY CHANGES IN LONG ESTABLISHED PRINCIPLES OF INDIVIDUAL
LIABILITY AND UNFAIRLY IMPOSE POLLUTION CLEAN-UP COSTS ON INDUSTRIES
SUCH AS THE FERTILIZER INDUSTRY WHICH ARE COMPLETELY OR SUBSTANTIALLY
FREE FROM THE RESPONSIBILITY FOR CAUSING THE PROBLEMS SOUGHT TO BE
ADDRESSED.
THE MEASURES IMPROPERLY AND UNNECESSARILY SEEK TO APPLY THE SAME
SOLUTION TO THE ESSENTIALLY UNRELATED PROBLEMS OF INACTIVE AND ABANDONED
HAZARDOUS WASTE DISPOSAL SITES AND FUTURE HAZARDOUS SUBSTANCES SPILLS.
SUPPLEMENTAL STATEMENT TO THE TESTIMONY OF WHEELER E P
790906
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 038 OF 54
WHEELER E P PRESIDENT
THE FERTILIZER INSTITUTE
U.S. SENATE ENVIRONMENT AND PUBLIC WORKS COMMITTEE RESOURCE
PROTECTION AND ENVIRONMENTAL POLLUTION SUBCOMMITTEE
104601
HEARINGS
SENATE
WHILE TFI SUPPORTS LIMITED NEW LEGISLATION TO DEAL WITH PROBLEMS
OCCASIONED BY INACTIVE AND ABANDONED HAZARDOUS WASTE DISPOSAL SITES, THE
OPINION OF THE INSTITUTE IS THAT EXISTING LAW IS MORE THAN SUFFICIENT TO
DEAL WITH THE PROBLEM OF HAZARDOUS MATERIAL SPILLS. FURTHERMORE, IT IS
GROSSLY INEQUITABLE TO IMPOSE A SUBSTANTIAL ECONOMIC BURDEN UPON TODAY'S
FERTILIZER INDUSTRY IN ORDER TO FINANCE SOLUTIONS TO THE PROBLEMS CAUSED
BY INACTIVE AND ABANDONED HAZARDOUS WASTE DISPOSAL SITES WHICH THE
RECORD SHOWS WERE NOT AND, TO A LARGE EXTENT, COULD NOT HAVE BEEN CAUSED
BY THE FERTILIZER INDUSTRY. ON THE FERTILIZER INDUSTRY TO FINANCE THE
CLEAN-UP OF HAZARDOUS SUBSTANCES SPILLS AND THE REDRESS OF DAMAGES
OCCASIONED BY SUCH SPILLS WHEN THE RECORD SHOWS THAT THE FERTILIZER
INDUSTRY IS, AT MOST, A VERY MINOR CONTRIBUTOR TO THE SPILL PROBLEM AND
THAT EXISTING AUTHORITIES, IF FULLY FUNDED, ARE CAPABLE OF FINANCING
NECESSARY GOVERNMENT CLEAN-UP EFFORTS, REQUIRING PARTIES ACTUALLY
RESPONSIBLE FOR SPILLS TO BEAR THE COSTS OF THEIR ACTIONS AND REDRESS
INDIVIDUAL THIRD PARTY CLAIMS.
THE SWEEPING CHANGES WHICH WOULD BE EFFECTUATED BY THE PROPOSED
MEASURES IN TRADITIONAL CONCEPTS OF LIABILITY AND CAUSATION WOULD RENDER
THE FERTILIZER INDUSTRY AND THE AMERICAN FARMER SUBJECT TO EXTENSIVE
FINANCIAL LIABILITY, ESSENTIALLY WITHOUT DEFENSE, WHEN THE LEGISLATIVE
RECORD DEMONSTRATES NO NEED FOR SUCH DRASTIC MEASURES.
SUPPLEMENTAL STATEMENT TO THE TESTIMONY OF WHEELER E P
790906
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 039 OF 54
WHEELER E P PRESIDENT
THE FERTILIZER INSTITUTE
U.S. SENATE ENVIRONMENT AND PUBLIC WORKS COMMITTEE RESOURCE
PROTECTION AND ENVIRONMENTAL POLLUTION SUBCOMMITTEE
104602
HEARINGS
SENATE
ON THE BASIS OF THE FACTS AND ANALYSES PRESENTED HEREIN, TFI
RECOMMENDS THAT CURRENT LAWS REGULATING THE SPILLS OF HAZARDOUS
MATERIALS BE LEFT INTACT AND THAT NEW LEGISLATION BE ENACTED
SPECIFICALLY TO ADDRESS THE PROBLEMS OCCASIONED BY ABANDONED AND
INACTIVE HAZARDOUS WASTE DISPOSAL SITES.
SUCH LEGISLATION SHOULD PROVIDE:
1. A FUND MAINTAINED FROM ANNUAL GENERAL APPROPRIATIONS TO FINANCE
NECESSARY EMERGENCY RESPONSE MEASURES UNDERTAKEN BY FEDERAL AUTHORITIES;
2. PROVISIONS PROVIDING FOR ULTIMATE CLEAN-UP OF SUCH SITES TO BE
FINANCED EQUALLY BY THE EMERGENCY RESPONSE FUND AND THE STATE IN WHICH
THE SITE IS LOCATED; AND
3. STRINGENT PROVISIONS REQUIRING WRONGFUL DUMPERS WHO CONTRIBUTED
TO THE PROBLEMS ARISING AT INACTIVE OR ABANDONED WASTE DISPOSAL SITES TO
BEAR THE COST OF ALL REMEDIAL ACTIONS IN PROPORTION TO THEIR
CONTRIBUTION TO THE PROBLEM.
FINALLY, TFI RECOMMENDS THAT NO CHANGES BE MADE TO WELL ESTABLISHED
AND FUNCTIONING RULES OF LIABILITY AND CAUSATION UNLESS AND UNTIL IT CAN
BE SHOWN THAT STATE TORT LAW SYSTEMS, WITH ANY NECESSARY FINE TUNING,
ARE UNABLE TO PROPERLY REDRESS INDIVIDUAL DAMAGE
SUPPLEMENTAL STATEMENT TO THE TESTIMONY OF WHEELER E P
790906
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 040 OF 54
WHEELER E P PRESIDENT
THE FERTILIZER INSTITUTE
U.S. SENATE ENVIRONMENT AND PUBLIC WORKS COMMITTEE RESOURCE
PROTECTION AND ENVIRONMENTAL POLLUTION SUBCOMMITTEE
104603
HEARINGS
SENATE
IMMEDIATELY PRIOR TO THE PRESENTATION OF THE FERTILIZER INSTITUTE'S
TESTIMONY ON SEPTEMBER 6, 1979, THE INSTITUTE RECEIVED A TELEGRAM FROM
THE SUBCOMMITTEES WHICH POSED A NUMBER OF QUESTIONS AND ISSUES WHICH THE
SUBCOMMITTEES FELT WERE PARTICULARLY GERMANE TO THE CONSIDERATION OF
"SUPERFUND" LEGISLATION. ON SEPTEMBER 6 WE WERE ASKED TO ANSWER
ADDITIONAL INQUIRIES.
BOTH TFI'S TESTIMONY, AS PRESENTED ON SEPTEMBER 6, 1979, AND THE
SUPPLEMENTAL STATEMENT TO THAT TESTIMONY ADDRESS THE ISSUES RAISED IN
THE COMMUNICATIONS RECEIVED FROM THE SUBCOMMITTEE. NONETHELESS, AND IN
ORDER TO ENSURE THAT TFI'S TESTIMONY AND SUPPLEMENTAL STATEMENT ARE
FULLY RESPONSIVE TO THE NEEDS OF THE SUBCOMMITTEES, THE COMMUNICATIONS
RECEIVED BY TFI, AS WELL AS TFI'S VIEWS ON THE ISSUES RAISED, ARE
INCLUDED IN THIS APPENDIX. IN ORDER TO ENSURE CONCISENESS AND EASE OF
REFERENCE, TFI'S RESPONSES ARE CROSS-INDEXED TO THE MORE DETAILED
DISCUSSION OF EACH ISSUE CONTAINED IN TFI'S SUPPLEMENTAL STATEMENT. THE
ISSUES RAISED IN THE TWO SUBCOMMITTEE COMMUNICATIONS OVERLAP TO A LARGE
EXTENT. CONSEQUENTLY, THE ISSUES AS STATED BY THE SUBCOMMITTEE HAVE
BEEN COMBINED AND, TO A SMALL EXTENT, PARAPHRASED IN TFI'S RESPONSE.
SUPPLEMENTAL STATEMENT TO THE TESTIMONY OF WHEELER E P
790906
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 041 OF 54
WHEELER E P PRESIDENT
THE FERTILIZER INSTITUTE
U.S. SENATE ENVIRONMENT AND PUBLIC WORKS COMMITTEE RESOURCE
PROTECTION AND ENVIRONMENTAL POLLUTION SUBCOMMITTEE
104604
HEARINGS
SENATE
FERTILIZER INSTITUTE ATTN. EDWIN M. WHEELER 1015 18TH ST. N.W.
WASHINGTON, D.C. 20036
THE SUBCOMMITTEES ON ENVIRONMENTAL POLLUTION AND RESOURCE PROTECTION
OF THE SENATE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS HAVE SCHEDULED
HEARINGS ON SEPTEMBER 6 AND 7, 1979. YOU ARE INVITED TO TESTIFY ON
SEPTEMBER 6, 1979.
THE PURPOSE OF THE HEARINGS IS TO DETERMINE THE NEED FOR COMPENSATION
AND LIABILITY LEGISLATION FOR RELEASES OF TOXIC OR HAZARDOUS SUBSTANCES.
YOU ARE INVITED TO DISCUSS THAT SUBJECT GENERALLY, BUT ESPECIALLY TO
PROVIDE YOUR COMMENTS ON THE TWO BILLS AND S. 1341. COPIES OF THESE
BILLS WILL BE MAILED TO YOU UNDER SEPARATE COVER.
TRADE ASSOCIATIONS ARE ASKED TO SELECT AS A SPOKESPERSON THE
REPRESENTATIVE OF AN OPERATING COMPANY. WHERE COMPATIBLE WITH THE
ISSUES INVOLVED AND REPRESENTATIVE OF THE INTERLSTS, WE PREFER A
SPOKESPERSON FROM A SMALLER BUSINESS OR ENTERPRISE.
THE ISSUES TO BE DISCUSSED INCLUDE THE ADEQUACY OF EXISTING LEGAL
REGIMES FOR COMPENSATION OF CLEAN UP AND DAMAGE COSTS; WHETHER STRICT
LIABILITY SHOULD BE IMPOSED; WHETHER RULES OF CAUSATION SHOULD BE
ALTERED FOR PURPOSES OF RECOVERING OF MEDICAL EXPENSL AND NATURAL
RESOURCE DAMACE CLAIMS; WHAT ROLE STATES SHOULD PLAY IN A LIABILITY AND
COMPENSATION SCHEME; AND, WHAT FINANCIAL RESPONSIBILITY REQUIREMENTS
SHOULD BE IMPOSED ON PARTIES DEALING WITH HAZARDOUS AND TOXIC
SUBSTANCES; WHETHER A TRUST FUND SHOULD BE CREATED TO PAY FOR DAMAGES
AND CLEAN UP COSTS; WHETHER THE STANDARDS OF LIABILITY OR CAUSATION FOR
RECOVERY FROM THE FUND SHOULD DIFFER FROM THE STANDARD FOR RECOVERY FROM
THOSE RESPONSIBLE FOR RELEASES OF TOXIC OR HAZARDOUS POLLUTANTS; TO
WHAT DEGREE, IF ANY, SHOULD FEDERAL, STATE OR LOCAL GOVERNMENTS
CONTRIBUTE TO FUND EXPENDITURES THROUGH APPROPRIATED MONEY; WHAT FEES
SHOULD BE IMPOSED TO GENERATE THE FUND; WHETHER SUCH FEES SHOULD BE
IMPOSED ON HAZARDOUS SUBSTANCES, OR FEEDSTOCK FOR THOSE SUBSTANCES;
AND, WHETHER FEE COLLECTIONS SHOULD BE UTILIZED AS INCENTIVES TO SAFE
OPERATION.
PLEASE PREPARE A SUMMARY STATEMENT OF APPROXIMATELY SIX PAGES, TO BE
PRESENTED IN TEN MINUTES (OR LESS) IN ORDER TO PERMIT TIME TO RESPOND TO
QUESTIONS FROM SUBCOMMITTEE MEMBERS OR TO ISSUES RAISED BY OTHER
PANELISTS. WE ENCOURAGE YOU TO SUBMIT A MORE DETAILED STATEMENT FOR THE
RECORD AND, IF YOU ARE INTERESTED IN OTHER MATTERS RELATING TO THE
LEGISLATION, YOU MAY SUBMIT ADDITIONAL MATERIAL TO BE INCLUDED IN THE
HEARING RECORD.
SUPPLEMENTAL STATEMENT TO THE TESTIMONY OF WHEELER E P
790906
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 042 OF 54
WHEELER E P PRESIDENT
THE FERTILIZER INSTITUTE
U.S. SENATE ENVIRONMENT AND PUBLIC WORKS COMMITTEE RESOURCE
PROTECTION AND ENVIRONMENTAL POLLUTION SUBCOMMITTEE
104605
HEARINGS
SENATE
MICROFORM REFILMED; SEE APPENDICES
DIRKSEN SENATE OFFICE BUILDING. IF YOU HAVE ANY QUESTIONS REGARDING
YOUR APPEARANCE, PLEASE CONTACT EITHER CURTIS MOORE OF JIM RANGE AT
224-7854.
ROBERT T. STAFFORD SUBCOMMITTEE ON ENVIRONMENTAL POLLUTION
JOHN H. CHAFEE SUBCOMMITTEE ON RESOURCE PROTECTION
SUPPLEMENTAL STATEMENT TO THE TESTIMONY OF WHEELER E P
790906
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 043 OF 54
WHEELER E P PRESIDENT
THE FERTILIZER INSTITUTE
U.S. SENATE ENVIRONMENT AND PUBLIC WORKS COMMITTEE RESOURCE
PROTECTION AND ENVIRONMENTAL POLLUTION SUBCOMMITTEE
104606
HEARINGS
SENATE
/1/ QUESTIONS RECEIVED FROM SUBCOMMITTEE AT HEARING HELD
COVERAGE GENERALLY? SHOULD OIL BE INCLUDED?
OIL LIABILITY
SHOULD A BILL IMPOSE STRICT LIABILITY BY CREATING A FEDERAL CAUSE OF
ACTION OR OTHERWISE?
DAMAGES
FOR WHAT DAMAGES SHOULD A PARTY BE LIABLE: CLEANUP; THIRD PARTY;
ECONOMIC; PERSONAL; INJURY.
CAUSATION AND PROOF
SHOULD A BILL ALTER THE RULES OF CAUSATION FOR SOME CLASSES OF
INJURIES (E.G., ECONOMIC LOSSES OR OUT-OF-POCKET MEDICAL EXPENSES)?
SHOULD A BILL ALTER THE METHODS OF PROOF FOR DAMAGES TO NATURAL
RESOURCES?
LIABILITY LIMITS AND DEFENSES
SHOULD A BILL ESTABLISH LIABILITY LIMITS FOR THOSE RESPONSIBLE FOR
RELEASES?
SHOULD A BILL IMPOSE JOINT AND SEVERAL LIABILITY ON THOSE WHO
CONTRIBUTE TO A RELEASE?
FINANCIAL RESPONSIBILITY
SHOULD A 0ILL IMPOSE INSURANCE, BONDING OR OTHER FINANCIAL
RESPONSIBILITY REQUIREMENTS?
CREATION OF A "SUPERFUND"
SHOULD A BILL ESTABLISH A MORE "SUPERFUND" TO CLEANUP RELEASLS AND
COMPENSATE THEIR VICTIMS?
GOVERNMENT CONTRIBUTIONS
SHOULD APPROPRIATED MONIES CONSTITUTE PART OR ALL OF THE FUND?
WILL STATE OR LOCAL GOVERNMENTS BE REQUIRED TO CONTRIBUTE
FINANCIALLY?
FEE SOURCE
IS THERE IS A FEE, ON WHAT BASIS SHOULD IT BE IMPOSED?
SUPPLEMENTAL STATEMENT TO THE TESTIMONY OF WHEELER E P
790906
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 044 OF 54
WHEELER E P PRESIDENT
THE FERTILIZER INSTITUTE
U.S. SENATE ENVIRONMENT AND PUBLIC WORKS COMMITTEE RESOURCE
PROTECTION AND ENVIRONMENTAL POLLUTION SUBCOMMITTEE
104607
HEARINGS
SENATE
ARE EXISTING LEGAL REGIMES FOR COMPENSATION FOR CLEAN-UP AND DAMAGE
COSTS ASSOCIATED WITH HAZARDOUS WASTE DISPOSAL AND SPILLS OF OIL AND
HAZARDOUS SUBSTANCES ADEQUATE? IF NOT, SHOULD A BILL DEAL ONLY WITH
SPILLS AND ABANDONED DUMPS OR RELEASES GENERALLY? SHOULD OIL BE
INCLUDED?
THERE HAS BEEN NO SUGGESTION THAT EXISTING REGULATORY AUTHORITY UNDER
RCRA IS INADEQUATE TO DEAL WITH PRO0LEMS CAUSED BY PRESENTLY ACTIVE OR
FUTURE HAZARDOUS WASTE DISPOSAL SITES. TFI BELIEVES, THEREFORE, THAT
ADDITIONAL LEGISLATION DEALING WITH SUCH SITES IS UNNECESSARY
(SUPPLEMENTAL STATEMENT, AT S-11 -- S-12).
TFI ALSO BELIEVES THAT CURRENT AUTHORITY UNDER SECTIONS 311 AND 504
OF THE CLEAN WATER ACT, WHEN FULLY FUNDED, IS ADEQUATE TO: REGULATE
FUTURE SPILLS OF HAZARDOUS SUBSTANCES; PROVIDE GOVERNMENT RESPONSE
CAPABILITY TO SUCH SPILLS; AND REQUIRE SPILLERS TO ASSUME THE FINANCIAL
BURDEN OF CLEAN-UP AND RESTORATION COSTS (SUPPLEMENTAL STATEMENT, AT
S-21 -- S-23).
EVEN IF FURTHER LEGISLATION ON THE HAZARDOUS SUBSTANCES SPILLS ISSUE
WERE CONSIDERED NECESSARY, IT WOULD BE INAPPROPRIATE TO INCLUDE SPILLS
IN SUPERFUND LEGISLATION WHICH ALSO DEALS WITH ABANDONED OR INACTIVE
HAZARDOUS WASTE DISPOSAL SITES BECAUSE THE PROBLEMS CAUSED BY SPILLS AND
A0ANDONED SITES, AS WELL AS THE SOLUTIONS TO THOSE PROBLEMS ARE ENTIRELY
DIFFERENT (SUPPLEMENTAL STATEMENT, AT S-20 -- S-21).
SUPPLEMENTAL STATEMENT TO THE TESTIMONY OF WHEELER E P
790906
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 045 OF 54
WHEELER E P PRESIDENT
THE FERTILIZER INSTITUTE
U.S. SENATE ENVIRONMENT AND PUBLIC WORKS COMMITTEE RESOURCE
PROTECTION AND ENVIRONMENTAL POLLUTION SUBCOMMITTEE
104608
HEARINGS
SENATE
OIL SPILLS ARE DIFFERENT IN NATURE AND REMEDY TO BOTH HAZARDOUS
SUBSTANCES SPILLS AND ABANDONED SITES. THEREFORE, OIL SPILLS SHOULD BE
CONSIDERED SEPARATELY FROM BOTH OTHER ISSUES.
IT IS ALSO TFI'S VIEW THAT EXISTING REMEDIES AVAILABLE UNDER LONG
ESTABLISHED STATE TORT LAW SYSTEMS ARE ADEQUATE TO COMPENSATE THIRD
PARTIES FOR DAMAGES AND ECONOMIC LOSS SUFFERED AS A RESULT OF HAZARDOUS
SUBSTANCES SPILLS AND INACTIVE OR ABANDONED HAZARDOUS
TFI'S ANALYSIS OF EXISTING LAW DOES REVEAL A GAP IN THE AREA OF THE
REGULATION OF INACTIVE AND ABANDONED HAZARDOUS WASTE DISPOSAL SITES.
TFI FAVORS LIMITED NEW LEGISLATION TO PROVIDE FOR GOVERNMENT RESPONSE TO
ENVIRONMENTAL PROBLEMS OCCASIONED BY SUCH SITES AS THEY ARISE. SUCH
LEGISLATION SHOULD ALSO PROVIDE THE GOVERNMENT WITH THE AUTHORITY AND
RESOURCES NECESSARY TO ENSURE THAT WRONGFUL DUMPERS WHO CAUSED OR
CONTRIBUTED TO ABANDONED SITE PROBLEMS ARE REQUIRED TO PAY THEIR FAIR
SHARE OF THE COSTS OF REMEDIAL ACTION.
SUPPLEMENTAL STATEMENT TO THE TESTIMONY OF WHEELER E P
790906
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 046 OF 54
WHEELER E P PRESIDENT
THE FERTILIZER INSTITUTE
U.S. SENATE ENVIRONMENT AND PUBLIC WORKS COMMITTEE RESOURCE
PROTECTION AND ENVIRONMENTAL POLLUTION SUBCOMMITTEE
104609
HEARINGS
SENATE
SUCH LEGISLATION SHOULD ALSO ENCOURAGE DIRECT ACTION BY INDUSTRY TO
ATTACK ABANDONED WASTE SITE PROBLEMS (SUPPLEMENTAL STATEMENT, AT S-13 --
S-20).
SHOULD A TRUST FUND BE CREATED TO PAY DAMAGE AND CLEAN-UP COSTS
ASSOCIATED WITH ABANDONED HAZARDOUS WASTE DISPOSAL SITES AND HAZARDOUS
SUBSTANCES SPILLS? IF SO, FROM WHERE SHOULD THE REVENUES OF SUCH A FUND
BE DERIVED? FROM REGULAR FEDERAL APPROPRIATIONS? FROM STATE
CONTRIBUTIONS? FROM FEES ON THE PRODUCTION OF HAZARDOUS SUBSTANCES
AND/OR THE GENERATION OF HAZARDOUS WASTES?
AS STATED PREVIOUSLY, TFI FAVORS LIMITED NEW LEGISLATION TO DEAL WITH
THE PROBLEMS CREATED BY INACTIVE AND ABANDONED HAZARDOUS WASTE DISPOSAL
SITES. AS PART OF THIS LEGISLATION, TFI FAVORS THE CREATION OF A FUND
FROM WHICH FEDERAL GOVERNMENT EMERGENCY RESPONSE ACTIONS AT A GIVEN
ABANDONED SITE CAN BE FINANCED FOR EMERGENCY RESPONSE ACTIONS BY THE
FEDERAL GOVERNMENT AND FOR THOSE STEPS NECESSARY TO FINALLY NEUTRALIZE
ANY PROBLEM SITE ON AN EQUAL COST SHARING BASIS WITH THE STATE IN WHICH
THE SITE IS LOCATED (SUPPLEMENTAL STATEMENT, AT S-12 -- S-13).
SUPPLEMENTAL STATEMENT TO THE TESTIMONY OF WHEELER E P
790906
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 047 OF 54
WHEELER E P PRESIDENT
THE FERTILIZER INSTITUTE
U.S. SENATE ENVIRONMENT AND PUBLIC WORKS COMMITTEE RESOURCE
PROTECTION AND ENVIRONMENTAL POLLUTION SUBCOMMITTEE
104610
HEARINGS
SENATE
THE PROPOSALS IN S.1480 WHICH WOULD ALLOW PRIVATE DAMAGE CLAIMS TO BE
EXERTED AGAINST THE FUND ARE UNWISE SINCE THEY WILL ONLY RESULT IN
CONSTANT AND PROTRACTED LITIGATION BY AND AGAINST THE FUND WHICH WOULD
SEVERELY DEPLETE THE FUND'S FINANCIAL, TIME AND PERSONNEL RESOURCES
(SUPPLEMENTAL STATEMENT, AT S-13). REGULAR FEDERAL APPROPRIATIONS, THUS
RECOGNIZING THE ESSENTIALLY SOCIETAL NATURE OF THE PROBLEM; EQUAL COST
SHARING FUNDS FROM STATES FOR ULTIMATE CLEAN-UP OPERATIONS; AND
RECOVERY FROM WRONGFUL DUMPERS OF THE COST OF REMEDIAL ACTIONS
(SUPPLEMENTAL STATEMENT, AT S-16 -- S-20).
IT IS TFI'S OPINION THAT THE FUND SHOULD NOT BE FINANCED BY THE
IMPOSITION OF A TAX ON THE CURRENT PRODUCTION OF HAZARDOUS SUBSTANCES OR
THE CURRENT GENERATION OF HAZARDOUS WASTES. SUCH A PROPOSAL IGNORES THE
PROPRIETY OF A MAJORITY OF PAST DISPOSAL PRACTICES UNDER THEN APPLICABLE
RULES OR THE THEN ACCEPTED "STATE OF THE ART" OF HAZARDOUS WASTE
DISPOSAL.
SUPPLEMENTAL STATEMENT TO THE TESTIMONY OF WHEELER E P
790906
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 048 OF 54
WHEELER E P PRESIDENT
THE FERTILIZER INSTITUTE
U.S. SENATE ENVIRONMENT AND PUBLIC WORKS COMMITTEE RESOURCE
PROTECTION AND ENVIRONMENTAL POLLUTION SUBCOMMITTEE
104611
HEARINGS
SENATE
SUCH A SOLUTION WOULD ALSO UNFAIRLY PENALIZE ONE SEGMENT OF PRESENT
DAY INDUSTRY FOR PROBLEMS CAUSED BY THE PAST PRACTICES OF A WIDE RANGE
OF INDUSTRIES, PRACTICES WHICH WERE, BY AND LARGE, ACCEPTABLE WHEN
DISPOSAL WAS ACTUALLY UNDERTAKEN. BY PENALIZING AN INDUSTRY SEGMENT IN
THIS MANNER, SUCH A PROPOSAL IGNORES THE ESSENTIALLY SOCIETAL NATURE OF
THE PROBLEM (SUPPLEMENTAL STATEMENT, AT S-16 -- S-17).
SHOULD CONGRESS NONETHELESS ADOPT AN INDUSTRY FEE SYSTEM, IT MUST BE
CERTAIN THAT THE SYSTEM SELECTED BEARS SOME REASONABLE RELATIONSHIP TO
THE OVERALL RESPONSIBILITY OF ANY PARTICULAR INDUSTRY SEGMENT. IN THE
CASE OF THE FERTILIZER INDUSTRY, THE ADMINISTRATION PROPOSAL, S.1341,
WILL PLACE A TAX OF MORE THAN $60 MILLION PER YEAR, OR APPROXIMATELY 60%
OF THE TOTAL FEES TO BE RAISED FROM THE INORGANIC CHEMICAL INDUSTRY, ON
THE FERTILIZER INDUSTRY WHEN EPA'S OWN DATA SHOWS THAT NOT ONE PROBLEM
INACTIVE OR ABANDONED HAZARDOUS WASTE DISPOSAL SITE HAS BEEN ATTRIBUTED
TO THE INDUSTRY. SUCH A SYSTEM IS CLEARLY UNFAIR AND IMPROPER
(SUPPLEMENTAL STATEMENT, AT S-17 -- S-20).
SUPPLEMENTAL STATEMENT TO THE TESTIMONY OF WHEELER E P
790906
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 049 OF 54
WHEELER E P PRESIDENT
THE FERTILIZER INSTITUTE
U.S. SENATE ENVIRONMENT AND PUBLIC WORKS COMMITTEE RESOURCE
PROTECTION AND ENVIRONMENTAL POLLUTION SUBCOMMITTEE
104612
HEARINGS
SENATE
SHOULD FEES IMPOSED ON INDUSTRY BE UTILIZED AS AN INCENTIVE TO SAFER
OPERATIONS?
PROBLEMS ASSOCIATED WITH INACTIVE OR ABANDONED HAZARDOUS WASTE DISPOSAL
SITES. BY DEFINITION, SUCH SITES ARE NO LONGER BEING USED FOR DISPOSAL
PURPOSES, AND, THEREFORE, NO INDUSTRY FEE SYSTEM COULD AFFECT THE SAFETY
OF OPERATIONS AT SUCH SITES OR COULD IT BE DEEMED TO BE AN "INCENTIVE."
EXISTING STATUTES, INCLUDING RCRA AND THE CLEAN WATER ACT, ALREADY
PROVIDE AMPLE INCENTIVE FOR CARE IN THE OPERATION OF EXISTING HAZARDOUS
WASTE DISPOSAL SITES AND THE HANDLING OF HAZARDOUS SUBSTANCES.
WHAT FINANCIAL RESPONSIBILITY REQUIREMENTS SHOULD BE IMPOSED ON
PARTIES DEALING WITH HAZARDOUS AND TOXIC SU0STANCES?
ADDITIONAL FINANCIAL RESPONSIBILITY REQUIREMENTS ARE UNNECESSARY. IT
GOES WITHOUT SAYING THAT THE IMPOSITION OF FINANCIAL RESPONSIBILITY
REQUIREMENTS ON THE OPERATION OF INACTIVE OR ABANDONED HAZARDOUS WASTE
DISPOSAL SITES IS NOT POSSIBLE. IN ADDITION, THE HAZARDOUS WASTE
MANAGEMENT REGULATIONS PROPOSED BY EPA UNDER SUBTITLE C OF RCRA (43 FED.
REG. 58946, DECEMBER 18, 1978) WOULD REQUIRE SUBSTANTIAL SHOWINGS OF
FINANCIAL RESPONSIBILITY BY OWNERS AND OPERATORS OF ACTIVE HAZARDOUS
WASTE DISPOSAL SITES.
SUPPLEMENTAL STATEMENT TO THE TESTIMONY OF WHEELER E P
790906
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 050 OF 54
WHEELER E P PRESIDENT
THE FERTILIZER INSTITUTE
U.S. SENATE ENVIRONMENT AND PUBLIC WORKS COMMITTEE RESOURCE
PROTECTION AND ENVIRONMENTAL POLLUTION SUBCOMMITTEE
104613
HEARINGS
SENATE
FINALLY, SECTION 311(P) OF THE CLEAN WATER ACT REQUIRES SHOWINGS OF
FINANCIAL RESPONSIBILITY ON THE PART OF VESSELS WHICH CARRY OIL AND
HAZARDOUS SUBSTANCES. SHOWINGS OF FINANCIAL RESPONSIBILITY ON THE PART
OF IN-PLACE FACILITIES WHICH HANDLE OIL AND HAZARDOUS SUBSTANCES ARE
CONSIDERED UNNECESSARY BECAUSE OF THE FIXED NATURE OF SUCH FACILITIES.
FOR WHAT DAMAGES SHOULD A PARTY BE HELD LIABLE; CLEAN-UP, THIRD
PARTY; ECONOMIC, PERSONAL; INJURY? SHOULD JOINT AND SEVERAL LIABILITY
BE IMPOSED? SHOULD LIABILITY LIMITS BE ESTABLISHED?
UNDER THE LEGISLATIVE APPROACH FAVORED BY TFI, WRONGFUL DUMPERS WILL
BE HELD LIABLE FOR ALL CLEAN-UP COSTS ASSOCIATED WITH AN INACTIVE OR
ABANDONED HAZARDOUS WASTE DISPOSAL SITE IN STATEMENT, AT S-13 -- S-15).
TFI BELIEVED THAT EXISTING, LONG ESTABLISHED STATE TORT LAW
MECHANISMS ARE SUFFICIENT TO REDRESS ANY THIRD PARTY DAMAGE CLAIMS
(SUPPLEMENTAL STATEMENT, AT S-33 -- S-38).
SUPPLEMENTAL STATEMENT TO THE TESTIMONY OF WHEELER E P
790906
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 051 OF 54
WHEELER E P PRESIDENT
THE FERTILIZER INSTITUTE
U.S. SENATE ENVIRONMENT AND PUBLIC WORKS COMMITTEE RESOURCE
PROTECTION AND ENVIRONMENTAL POLLUTION SUBCOMMITTEE
104614
HEARINGS
SENATE
IT WOULD BE IMPROPER TO IMPOSE JOINT, SEVERAL AND STRICT LIABILITY ON
ANY PARTY WHO "CONTRIBUTED TO" A PROBLEM HAZARDOUS WASTE DISPOSAL SITE
BECAUSE SUCH A STEP COULD RESULT IN A SMALL CONTRIBUTOR TO A PARTICULAR
PAROBLEM SITE BEING REQUIRED TO ASSUME THE TOTAL CLEAN-UP BURDEN.
CLEAN-UP LIABILITY SHOULD BE IMPOSED ON A COMPARATIVE FAULT BASIS
(SUPPLEMENTAL STATEMENT, AT S-13 -- S-15).
SIMILARLY, IN THE CASE OF HAZARDOUS SUBSTANCES SPILLS, IMPOSITION OF
JOINT, SEVERAL AND STRICT LIABILITY WOULD MAKE SHIPPERS OF HAZARDOUS
SUBSTANCES JOINTLY LIABLE FOR SPILLS WHICH OCCUR DURING TRANSPORTATION
AND WHICH ARE ENTIRELY THE FAULT OF THE CARRIER WHO RECEIVES ADDITIONAL
COMPENSATION FOR THE HANDLING OF HAZARDOUS SUBSTANCES (SUPPLEMENTAL
STATEMENT, AT S-30 -- S-33).
TFI DOES NOT FAVOR THE ESTABLISHMENT OF LIMITATIONS ON THE LIABILITY
OF WRONGFUL DUMPERS FOR THEIR FAIR SHARE OF THE COSTS OF CLEAN-UP AT AN
INACTIVE OR ABANDONED HAZARDOUS WASTE DISPOSAL SITE.
SUPPLEMENTAL STATEMENT TO THE TESTIMONY OF WHEELER E P
790906
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 052 OF 54
WHEELER E P PRESIDENT
THE FERTILIZER INSTITUTE
U.S. SENATE ENVIRONMENT AND PUBLIC WORKS COMMITTEE RESOURCE
PROTECTION AND ENVIRONMENTAL POLLUTION SUBCOMMITTEE
104615
HEARINGS
SENATE
SHOULD A BILL ALTER THE RULES OF CAUSATION FOR SOME CLASSES OF INJURY
(E.G., ECONOMIC LOSSES OR OUT-OF-POCKET MEDICAL EXPENSES)? SHOULD A
BILL ALTER THE METHODS OF PROOF FOR DAMAGES TO NATURAL RESOURCES?
AS DISCUSSED ABOVE, TFI DOES NOT FAVOR THE ESTABLISHMENT OF A FEDERAL
"TOXIC TORT LAW". IN ADDITION, TFI DOES NOT BELIEVE THAT THE SPARSE
LEGISLATIVE RECORD JUSTIFIES ANY CHANGE IN TRADITIONAL CONCEPTS OF
CAUSATION AND PROOF AS THEY HAVE EVOLVED OVER TIME IN STATE TORT LAW
SYSTEMS. INDEED, UNDER THE PROPOSALS CONTAINED IN S.1480 THE ROUTINE
APPLICATION OF ANHYDROUS AMMONIA (THE LARGEST VOLUME DOMESTICALLY
PRODUCED FERTILIZER) BY A FARMER WOULD BE A STANDARDS ESTABLISHED BY
S.1480, TFI DOES NOT BELIEVE THAT THE FARMER-USER OF ANHYDROUS AMMONIA
WOULD HAVE A DEFENSE AGAINST ANY AND ALL DAMAGE CLAIMS ASSERTED AS THE
RESULT OF ANY ROUTINE APPLICATION OF ANHYDROUS AMMONIA (SUPPLEMENTAL
STATEMENT, AT S-33 -- S-38).
SUPPLEMENTAL STATEMENT TO THE TESTIMONY OF WHEELER E P
790906
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 053 OF 54
WHEELER E P PRESIDENT
THE FERTILIZER INSTITUTE
U.S. SENATE ENVIRONMENT AND PUBLIC WORKS COMMITTEE RESOURCE
PROTECTION AND ENVIRONMENTAL POLLUTION SUBCOMMITTEE
104616
HEARINGS
SENATE
IN SUMMARY, TFI FAVORS LIMITED REMEDIAL LEGISLATION WHICH WOULD
ESTABLISH A FUND SUPPORTED BY REGULAR FEDERAL APPROPRIATIONS TO FINANCE
FEDERAL GOVERNMENT EMERGENCY RESPONSE ACTIONS AT INACTIVE OR ABANDONED
HAZARDOUS WASTE DISPOSAL SITES WHICH CAUSE ENVIRONMENTAL PROBLEMS.
UNDER TFI'S PROPOSAL, ACTIONS OVER AND ABOVE EMERGENCY RESPONSE ACTIONS
AND DESIGNED TO PROVIDE ULTIMATE NEUTRALIZATION OF SUCH SITES WOULD BE
FINANCED ON AN EQUAL COST SHARING BASIS BY THE FUND AND THE STATE IN
WHICH A PARTICULAR SITE IS LOCATED. FINALLY, THE RECOMMENDED
LEGISLATION SHOULD INCLUDE STRINGENT PROVISIONS GIVING THE FEDERAL
GOVERNMENT THE AUTHORITY AND RESOURCES NECESSARY TO FULLY INVESTIGATE
PROBLEM INACTIVE AND ABANDONED HAZARDOUS WASTE DISPOSAL SITES AND TO
REQUIRE WRONGFUL DUMPERS AT SUCH SITES TO FULLY REIMBURSE THE FUND FOR
THEIR PROPORTIONATE SHARE OF ALL COSTS ASSOCIATED WITH ANY NECESSARY
REMEDIAL ACTIONS.
TESTIMONY OF THE NATIONAL ASSOCIATION OF MANUFACTURERS ON S. 1341 AND S. 1480 SUPERFUND LEGISLATION
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 001 OF 11
KRAEMER HF
GENERAL MILLS INC
U.S. SENATE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS SUBCOMMITTEE ON
ENVIRONMENTAL POLLUTION
104618
HEARING
SENATE
I AM DR. HERBERT F. KRAEMER, ENGINEERING POLICY GROUP OF GENERAL
MILLS, INC., MINNEAPOLIS, MINNESOTA, APPEARING TODAY ON BEHALF OF THE
NATIONAL ASSOCIATION OF MANUFACTURERS (NAM). NAM IS A VOLUNTARY
MEMBERSHIP ORGANIZATION OF MORE THAN AN ADDITIONAL 158,000 COMPANIES
THROUGH THE NATIONAL INDUSTRIAL COUNCIL. WE APPRECIATE THIS OPPORTUNITY
TO TESTIFY ON S.1341 ON MUCH OF AMERICAN INDUSTRY.
THESE BILLS RAISE SERIOUS QUESTIONS INVOLVING LEGAL ISSUES, PROBLEMS
OF EQUITABLE TREATMENT, AND PRINCIPLES OF SOUND GOVERNMENT. THE
SUBCOMMITTEES SHOULD BE VERY CAUTIOUS ABOUT RECOMMENDING ANOTHER
ENVIRONMENTAL LAW, ANOTHER ENVIRONMENTAL AGENCY, AND NEW SYSTEMS OF
TAXATION AND LEGAL LIABILITY. NAM BELIEVES THAT ANY NEEDED LEGISLATIVE
IMPROVEMENTS IN REGARD TO HAZARDOUS WASTE DISPOSAL SITES AND SPILLS OF
HAZARDOUS SUBSTANCES SHOULD BE PURSUED WITHIN THE FRAMEWORK OF EXISTING
ENVIRONMENTAL LAWS.
TESTIMONY OF THE NATIONAL ASSOCIATION OF MANUFACTURERS ON S. 1341 AND S. 1480 SUPERFUND LEGISLATION
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 002 OF 11
KRAEMER HF
GENERAL MILLS INC
U.S. SENATE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS SUBCOMMITTEE ON
ENVIRONMENTAL POLLUTION
104619
HEARING
SENATE
ON AUGUST 1, 1979, NAM FILED A STATEMENT SETTING FORTH OUR GENERAL
VIEWS ON THE BILLS BEING CONSIDERED BY THE SUBCOMMITTEES. AT THAT TIME,
WE MADE THE FOLLOWING COMMENTS: SAME LEGISLATION.
BOTH BILLS PUSH THE LEGAL PROCESSES TO THE OUTER LIMITS OF
APPROPRIATENESS.
NO NEW LEGAL SYSTEM OF FEDERAL TORT LIABILITY SHOULD BE RECOMMENDED
TO THE SENATE WITHOUT EXHAUSITVE DELIBERATIONS AND HEARINGS BY THE
SENATE JUDICIARY COMMITTEE.
NO NEW FINANCIAL INSTITUTIONS OR SCHEMES OF TAXATION SHOULD BE
RECOMMENDED TO THE SENATE WITHOUT EXHAUSTIVE DELIBERATIONS AND HEARINGS
BY THE SENATE FINACE COMMITTEE. TODAY, IN THE TIME ALLOTTED, WE WILL
COMMENT MORE FULLY ON JUST ONE ASPECT OF THE LEGISLATION.
NAM'S MEMBERSHIP IS MADE UP OF SMALL BUSINESSES, WE FEEL THAT IT IS
IMPERATIVE TO PRESENT THEIR VIEWS ON THE POTENTIALLY
IT SHOULD FIRST BE NOTED THAT SMALL BUSINESS IS GENERALLY AT A
DISADVANTAGE UNDER ENVIRONMENTAL LAWS AND REGULATIONS. THE COST OF
POLLUTION CONTROL CAN FALL HEAVILY ON BOTH LARGE AND SMALL COMPANIES IF
THEY ARE CURRENTLY IN A POLLUTION-INTENSIVE MANUFACTURING CATEGORY.
TESTIMONY OF THE NATIONAL ASSOCIATION OF MANUFACTURERS ON S. 1341 AND S. 1480 SUPERFUND LEGISLATION
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 003 OF 11
KRAEMER HF
GENERAL MILLS INC
U.S. SENATE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS SUBCOMMITTEE ON
ENVIRONMENTAL POLLUTION
104620
HEARING
SENATE
HOWEVER, LARGE CORPORATIONS HAVE GREATER MARKETING TECHNICAL, AND
LEGAL RESOURCES AND ARE LESS LIKELY TO FIND THEMSELVES IN A POSITION
WHERE POLLUTION CONTROLS WOULD BE A SERIOUS THREAT TO THEIR SURVIVAL.
IN CASES WHERE POLLUTION CONTROL STANDARDS DO IMPOSE SEVERE ECONOMIC
PENALTIES, LARGE CORPORATIONS NORMALLY SHOW GREAT COMPETENCE IN
PRESENTING THE ECONOMIC AND TECHNICAL CASE TO REGULATORY AUTHORITIES.
FOR THE MEDIUM AND SMALL MANUFACTURER, HOWEVER, A DIFFERENT SITUATION
EXISTS. SMALL COMPANIES CANNOT MAINTAIN CLOSE CONTACT WITH THE
DEVELOPING REQUIREMENTS AT THE NATIONAL LEVEL AND DO NOT HAVE THE
RESOURCES TO MAINTAIN A STAFF DEALING TIME LIMITATION ON THEIR ABILITY
TO ANALYZE THE EFFECTS OF AN INCOMPLETE PRESENTATION TO REGULATORY
OFFICIALS. THUS, THE COMPANIES WHICH ARE LEAST ABLE TO ABSORB THE
IMPACT OF A HASTY POLLUTION CONTROL PROGRAM ARE THOSE WHICH ARE MOST
LIKELY TO BE IN A POSITION OF BEING FORCED TO CONSTRUCT ONE.
THERE ARE SEVERAL FACTORS WHICH MAKE THE POLLUTION CONTROL
REQUIREMENTS FALL ESPECIALLY HARD ON THE SMALL MANUFACTURER. ONE OF
THESE FACTORS LIES IN THE INABILITY TO ASSEMBLE THE TECHNICAL AND
FINANCIAL RESOURCES TO ASSESS PROPERLY POLLUTION PROBLEMS AND ARRIVE AT
THE MOST COST EFFECTIVE SOLUTION. THE USE OF CONSULTING FIRMS TO
CHARACTERIZE WASTE AND ARRIVE AT THE MOST ECONOMIC ENGINEERING SOLUTION
TO THE POLLUTION PROBLEMS
TESTIMONY OF THE NATIONAL ASSOCIATION OF MANUFACTURERS ON S. 1341 AND S. 1480 SUPERFUND LEGISLATION
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 004 OF 11
KRAEMER HF
GENERAL MILLS INC
U.S. SENATE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS SUBCOMMITTEE ON
ENVIRONMENTAL POLLUTION
104621
HEARING
SENATE
NOW A NEW FACTOR HAS BEEN PROPOSED WHICH WILL SERIOUSLY PROVISIONS
ATTACHING STRICT LIABILITY FOR DAMAGES RESULTING FROM SPILLS OF
HAZARDOUS SUBSTANCES OR RELEASES FROM HAZARDOUS WASTE DISPOSAL SITES.
NEGLIGENCE NEED NOT BE SHOWN.
THE TRADITIONAL THEORY OF NEGLIGENCE IS ASSOCIATED WITH THE "FAULT"
OF THE WRONGDOER. FAULT IS A DEVIATION FROM A CODE OF CONDUCT WHICH AN
INDIVIDUAL MUST COMPLY WITH EVEN IF IT IS BEYOND HIS CAPACITY. STRICT
LIABILITY GOES BEYOND THIS TRADITIONAL THERY AND ATTACHES LIABILITY IN
THE ABSENCE OF FAULT AND DESPITE THE FACT THAT THE INDIVIDUAL ADHERED TO
A REASONABLE STANDARD OF CONDUCT. THE NATURE OF THE ACTIVITY ITSELF IS
SUFFICIENT TO ATTACH STRICT LIABILITY. HOWEVER, IN THE CASE OF
NEGLIGENCE OR AN INTENTIONAL WRONGDOING, LIABILITY MAY EXTEND BEYOND
FORESEEABLE RISKS.
STRICT LIABILITY SHOULD BE DISTINGUISHED FROM THE CONCEPT OF ABSOLUTE
LIABILITY. WITH STRICT LIABILITY, LIMITS ARE DRAWN TO CERTAIN
CIRCUMSTANCES WITHIN A FORESEEABLE RANGE. STRICT LIABILITY WAS NOT
DEVELOPED TO BE A PANACEA FOR ANY AND ALL
THE INSTANT PROPOSAL OFFERS NO CONCEPT OF FORSEEABLE CIRCUMSTANCES
FOR LIABILITY. RATHER, IT IS A BLANKET LIABILITY OF LIMITLESS
APPLICATION.
TESTIMONY OF THE NATIONAL ASSOCIATION OF MANUFACTURERS ON S. 1341 AND S. 1480 SUPERFUND LEGISLATION
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 005 OF 11
KRAEMER HF
GENERAL MILLS INC
U.S. SENATE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS SUBCOMMITTEE ON
ENVIRONMENTAL POLLUTION
104622
HEARING
SENATE
THE REMEDIES PROVIDED IN EXISTING LEGISLATION ARE ADEQUATE FOR NEARLY
ALL INSTANCES OF INJURY OR LOSS. ENVIRONMENTAL LEGISLATION ALREADY
SEVERELY RESTRICTS AN INDIVIDUAL'S ACTIVITY IN DEALING WITH SUBSTANCES
AND CIRCUMSTANCES COVERED BY THESE PROPOSALS. ONLY IN THE INSTANCE OF
ABANDONED WASTE DISPOSAL SITES IS THERE A POTENTIAL CLAIM FOR INADEQUATE
PROTECTION. HOWEVER, STRICT LIABILITY ON THE PART OF ALL PARTIES
ASSOCIATED WITH THE ACTIVITY IS INAPPROPRIATE, AS IT GOES FAR BEYOND THE
MORE TRADITIONAL CONCEPTS OF NEGLIGENCE AND WILLFUL MISCONDUCT ARE THE
MOST THAT CAN BE EXPECTED FROM THESE COMPANIES WHOSE ON A MARGINAL
PROFIT TO THE OWNERS.
SUBSECTION 4(A) OF S.1480 WOULD MAKE AN OWNER OR OPERATOR OF AN
ONSHORE FACILITY JOINTLY, STRICTLY, AND SEVERALLY LIABLE TO OTHER
PERSONS FOR PERSONAL INJURIES AND ECONOMIC LOSSES. THIS IMPOSITION OF
JOINT, STRICT, AND SEVERAL LIABILITY IS COMPOUNDED BY SUBSECTION 4(C),
WHICH WOULD DRASTICALLY ALTER THE RULES OF EVIDENCE.
SUBSECTION 4(C) PROVIDES THAT "NOTWITHSTANDING THE ORDINARY
REQUIREMENTS FOR PROOF OF CAUSE IN FACT OR PROXIMATE CAUSE OF DAMAGE,
INJURY, OR LOSS," A PERSON SHALL BE LIABLE FOR ALL MEDICAL EXPENSES IF A
REASONABLE PERSON COULD CONCLUDE THAT ANY INJURY OR DISEASE IS
REASONABLE RELATED TO THE DISCHARGE, RELEASE, OR DISPOSAL OF ANY
HAZARDOUS SUBSTANCE. (EMPHASIS SUPPLIED).
TESTIMONY OF THE NATIONAL ASSOCIATION OF MANUFACTURERS ON S. 1341 AND S. 1480 SUPERFUND LEGISLATION
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 006 OF 11
KRAEMER HF
GENERAL MILLS INC
U.S. SENATE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS SUBCOMMITTEE ON
ENVIRONMENTAL POLLUTION
104623
HEARING
SENATE
THE BASIS FOR SUCH CONCLUSION COULD INCLUDE, BUT IS NOT LIMITED TO,
"THE CONSIDERATION OF STATISTICAL CORRELATION THE EXPOSED POPULATION
ABOVE THAT WHICH IS OTHERWISE STATISTICALLY PROBABLE."
FURTHER, "THE INABILITY OF A CLAIMANT OT DEMONSTRATE (1) THE
PARTICULAR IDENTITY OF THE SUBSTANCE WHICH CAUSED THE INJURY OR DISEASE,
(2) THE PARTICULAR SOURCE OF SUCH SUBSTANCE, (3) THE PATHWAY OF SUCH
SUBSTANCE EN ROUTE TO THE INJURED PARTY, OR (4) AN EXPLANATION OF THE
ETIOLOGY OF THE SUBSTANCE IN THE INJURED PARTY, SHALL NOT BAR RECOVERY."
SUCH AN OPEN-ENDED, ALL-INCLUSIVE LICENSE TO RECOVER ANY CONCEIVABLE
MEDICAL EXPENSES INCURRED AS A RESULT (WHICH NEED NOT BE PROVEN BY THE
CLAIMANT) OF A POSSIBLE DISCHARGE, DISPOSAL, OR RELEASE OF HAZARDOUS
SUBSTANCES WILL HAVE A DEVASTATING STEMMING FROM THE LIABILITY
PROVISIONS: (1) THE LIQUIDITY POSITION OF SMALL FIRMS WOULD BE
SERIOUSLY WEAKENED; (2) MANY THEY SIZE UP THE IMPLICATIONS OF BEING
FOUND LIABLE IN THE FUTURE; AND (3) MANY POTENTIAL GENERATORS,
TRANSPORTERS, AND DISPOSERS WOULD BE FORCED TO RECONSIDER AND WITHDRAW
THEIR PLANS OF ENTERING INTO A BUSINESS WITH SUCH PUNITIVE FEATURES.
TESTIMONY OF THE NATIONAL ASSOCIATION OF MANUFACTURERS ON S. 1341 AND S. 1480 SUPERFUND LEGISLATION
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 007 OF 11
KRAEMER HF
GENERAL MILLS INC
U.S. SENATE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS SUBCOMMITTEE ON
ENVIRONMENTAL POLLUTION
104624
HEARING
SENATE
THESE EFFECTS, TOGETHER WITH THE ALARMING DECREASE IN FUTURE DISPOSAL
CAPACITY AS A RESULT OF COMMUNITY OPPOSITION TO THE NEARBY SITING OF
HAZARDOUS WASTE DISPOSAL SITES, WILL ONLY SERVE TO FURTHER AGGRAVATE THE
HAZARDOUS SUBSTANCE AND HAZARDOUS WASTE PROBLEM.
NOT ONLY WOULD IT BE IMPOSSIBLE FOR THE SMALL BUSINESSMAN TO ACT AS A
SELF-INSURER UNDER SUCH CONDITIONS, BUT IS WOULD ALSO BE IMPOSSIBLE FOR
HIM TO GET LIABILITY INSURANCE AT AN AFFORDABLE PRICE, OR TO BET
INSURANCE AT ALL. FOR HAZARDOUS WASTE AND HAZARDOUS SUBSTANCE
TRANSPORTERS, GENERATORS, AND DISPOSERS HAS NOT BEEN RESOLVED
SATISFACTORILY. THE AMERICAN INSURANCE ASSOCIATION, IN JULY
SUBCOMMITTEE HEARINGS IN THE HOUSE OF REPRESENTATIVES, WARNED THAT "THE
DEMAND FOR INSURANCE COVERAGE TO SERVICE FEDERAL LIABILITY AND
COMPENSATION SYSTEMS MAY EXCEED THE INDUSTRY'S CAPACITY TO PROVIDE
PROTECTION." THE INSURANCE TRADE ASSOCIATION INFORMED THE SUBCOMMITTEE
THAT:
"THE CURRENT STATE OF THE ART OF INSURING ONSHORE FACILITIES FOR
POTENTIAL LIABILITY ASSOCIATED WITH HAZARDOUS SUBSTANCE RELEASES AND
HAZARDOUS WASTE DISPOSAL IS INADEQUATE TO ASSURE AN IMMEDIATE RESPONSE
TO THE NEED FOR INSURANCE COVERAGE TO RESPOND TO THE FINANCIAL
RESPONSIBILITY
/1/ STATEMENT OF JAMES L. KIMBLE, AMERICAN INSURANCE ASSOCIATION,
PRESENTED TO THE SUBCOMMITTEE ON COAST GUARD U.S. HOUSE OF
REPRESENTATIVES, 1ST SESSION, 96TH CONGRESS, JULY 31, 1979, PAGE 2.
TESTIMONY OF THE NATIONAL ASSOCIATION OF MANUFACTURERS ON S. 1341 AND S. 1480 SUPERFUND LEGISLATION
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 008 OF 11
KRAEMER HF
GENERAL MILLS INC
U.S. SENATE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS SUBCOMMITTEE ON
ENVIRONMENTAL POLLUTION
104625
HEARING
SENATE
THERE IS NO MINIMUM (OR MAXIMUM) ONSHORE FACILITY DAMAGE LIABILITY
LIMIT IN S.1480. SUBSECTION 4(A) PROVIDES THAT THE OWNER OR OPERATOR OF
AN ONSHORE FACILITY, TOGETHER WITH "ANY PERSON WHO CAUSED OR CONTRIBUTED
OR IS CAUSING OR CONTRIBUTING TO SUCH DISCHARGE, RELEASE, OR DISPOSAL,
INCLUDING BUT NOT LIMITED TO PRIOR OWNERS, LESSEES, AND GENERATORS,
TRANSPORTERS, OR DISPOSERS OF SUCH HAZARDOUS SUBSTANCES SHALL BE
JOINTLY, SEVERALLY, AND STRICTLY LIABLE" FOR THE FOLLOWING.
--ALL REMOVAL, CONTAINMENT, AND EMERGENCY RESPONSE COSTS INCURRED BY
THE FEDERAL GOVERNMENT OR A STATE
--ALL DAMAGES FOR ECONOMIC AND PERSONAL INJURY LOSS
--ALL DAMAGES FROM LOSS OF PERSONAL PROPERTY AND ITS
--ALL REASONABLE COSTS OF ASSESSING INJURY TO, LOSS OF, OR
DESTRUCTION OF NATURAL RESOURCES
--ALL MEDICAL EXPENSES, INCLUDING REHABILITATION COSTS, DUE TO
PERSONAL INJURY
--ALL DAMAGES RESULTING FROM THE LOSS OF TAXES, ROYALTY OR RENTAL
PROFITS BY MUNICIPALITIES, STATE AND FEDERAL GOVERNMENTS.
WHILE S.1480 MAKES NO MENTION OF MINIMUM OR MAXIMUM LIMITS TO
LIABILITY, THE ADMINISTRATION BILL, S.1341, DOES. BUT, ACCORDING TO THE
AMERICAN INSURANCE ASSOCIATION, S.1341'S $8 MILLION MINIMUM FOR ONSHORE
FACILITY DAMAGE LIABILITY LIMITS FOR POLLUTION OR WASTE IS "ARBITRARY"
AND NOT ACCURATELY SUCH AS LOCATION, CAPACITY, AND TYPE OF SUBSTANCE.
TESTIMONY OF THE NATIONAL ASSOCIATION OF MANUFACTURERS ON S. 1341 AND S. 1480 SUPERFUND LEGISLATION
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 009 OF 11
KRAEMER HF
GENERAL MILLS INC
U.S. SENATE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS SUBCOMMITTEE ON
ENVIRONMENTAL POLLUTION
104626
HEARING
SENATE
FACILITIES ARE REDUCED, AND THESE FACILITIES ARE NOT COMPELLED TO
FURNISH EVIDENCE OF FINANCIAL RESPONSIBILITY, AN INSURANCE MARKET FOR
ONSHORE FACILITIES MAY DEVELOP OVER TIME." NAM STRONGLY AGREES, AND
URGES THE SUBCOMMITTEES TO DEVOTE CAREFUL ATTENTION TO THIS ASPECT OF
THE HAZARDOUS WASTE AND HAZARDOUS SUBSTANCE PROBLEM.
S.1341 AND S.1480 SHARE ONE PARTICULARLY TROUBLESOME AND INEVITABLE
LITIGIOUS FEATURE -- LIABILITY ATTACHING TO ANYONE "WHO CAUSED OR
CONTRIBUTED OR IS CAUSING OR CONTRIBUTING" TO A DISCHARGE OR RELEASE OF
A HAZARDOUS SUBSTANCE (SUBSECTION 604 (S) IN S.1341, SUBSECTION 4(A) IN
S.1480).
WHILE IDENTIFICATION OF PERSONS WHO "CAUSED" OR ARE "CAUSING"
DISCHARGES MAY NOT PROVE TOO DIFFICULT AT THE SITE WHERE THE EPISODE
OCCURRED OR, EVEN LATER, IN COURT, THERE WILL BE A GOOD "CONTRIBUTED" OR
ARE "CONTRIBUTING" TO A DISCHARGE OR RELEASE. PRIOR AND CURRENT OWNERS
AND OPERATORS OF HAZARDOUS WASTE DISPOSAL FACILITIES, TOGETHER WITH
LESSEES, GENERATORS, TRANSPORTERS AND OTHER DISPOSERS OF HAZARDOUS
SUBSTANCES ARE NOTED IN BOTH BILLS AS POTENTIAL CONTRIBUTORS TO THESE
INCIDENTS. LEFT UNMENTIONED ARE POTENTIAL DIFFICULTIES AND INEQUITIES
IN: (1) ALLOCATING THE BURDEN OF LIABILITY AMONG THE CONTRIBUTORS
ACCORDING TO THE DAMAGE OR LOSS INFLICTED BY THEIR CONTRIBUTION; (2)
IDENTIFYING ALL OR MOST OF THE INDIVIDUAL CONTRIBUTORS; AND (3)
DETERMINING THE LIABILITY OF INDIVIDUAL CONTRIBUTORS WHO CAN BE
IDENDIFIES, BUT WHOSE ACTUAL CONTRIBUTION TO THE INCIDENT IS ONLY A
SMALL FRACTION
THESE DIFFICULTIES AND INEQUITIES WILL ONLY BE COMPOUNDED WHEN THERE
ARE HAZARDOUS WASTE AND HAZARDOUS SUBSTANCE INCIDENTS IDENTIFIED, AND
THEIR SHARE OF THE LIABILITY BURDEN IS SPREAD AMONG THOSE WHO ARE KNOWN.
WHILE THE LIABILITY PROVISIONS OF S.1341 AND S.1480 COMPRISE JUST ONE
ASPECT OF THE "SUPERFUND" LEGISLATION WHICH THE SUBCOMMITTEES ARE
CONSIDERING, THEIR POTENTIAL FOR THE SMALL ENTERPRISES TO CONTINUE
OPERATIONS WHEN THREATENED WITH SUCH HARSH MEASURES.
ASIDE FROM THE ISSUE OF LEGAL LIABILITY AS FOUND IN THE "SUPERFUND"
BILLS PRESENTLY BEFORE THE SUBCOMMITTEES AND THEIR IMPACT ON SMALL
BUSINESSES, NAM BELIEVES THAT THERE ARE PRINCIPLES OF SOUND LEGISLATION
WHICH SHOULD GOVERN WITH REGARD TO ABANDONED AND INACTIVE HAZARDOUS
WASTE DISPOSAL FACILITIES.
IT MUST BE REMEMBERED THAT THE PROBLEM OF ABANDONED SITES IS A
LIMITED ONE, ITS OUTER BOUNDS PERMANENTLY FIXED BY THE ENACTMENT AND
IMPLEMENTATION OF THE RESOURCE CONSERVATION AND RECOVERY ACT OF 1976
(RCRA). BECAUSE THE EXISTENCE OF THESE REMEDY SHOULD ALSO BE LIMITED.
TESTIMONY OF THE NATIONAL ASSOCIATION OF MANUFACTURERS ON S. 1341 AND S. 1480 SUPERFUND LEGISLATION
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 010 OF 11
KRAEMER HF
GENERAL MILLS INC
U.S. SENATE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS SUBCOMMITTEE ON
ENVIRONMENTAL POLLUTION
104627
HEARING
SENATE
THE FOLLOWING ARE NAM'S RECOMMENDATIONS FOR SOUND LEGISLATION
AFFECTING PRE-RCRA WASTE DISPOSAL SITES:
LEGISLATION AIMED AT REMEDYING THE ABANDONED SITES PROBLEM SHOULD
TAKE THE FORM OF AN AMENDMENT TO RCRA.
THE ENVIRONMENTAL PROTECTION AGENCY (EPA) SHOULD BE AUTHORIZED TO
TAKE EMERGENCY ACTIONS TO ELIMINATE HAZARDS TO PUBLIC HEALTH RESULTING
FROM PRE-RCRA WASTE DISPOSAL SITES.
EPA SHOULD BE AUTHORIZED TO RECOVER THE COST OF SUCH ACTIONS FROM
PARTIES WHOSE WILLFUL OR NEGLIGENT ACTS CREATED THE HAZARDS. RECOVERY
SHOULD BE BASED ON THE PARTIES'
THE PROGRAM SHOULD BEGIN WITH MODEST FUNDING ($20-$50 MILLION
FUNDING.
THE LEGISLATION SHOULD CONTAIN A "SUNSET" PROVISION TO INSURE THAT
CONGRESS THOROUGHLY REVIEWS ITS NECESSITY AFTER TWO YEARS.
THE LEGISLATION SHOULD NOT ATTEMPT TO CHANGE LEGAL RELATIONSHIPS
AMONG PARTIES.
COMPENSABILITY FOR INJURY OR DISEASE DUE TO RELEASES FROM PRE-RCRA
DISPOSAL SITES SHOULD BE LIMITED TO CIRCUMSTANCES WHERE SOUND MEDICAL
EVIDENCE ESTABLISHES DISABILITY AND SUFFICIENT EVIDENCE INDICATES THAT
THE DISABILITY WAS A RESULT OF THE HAZARDOUS WASTE RELEASE.
WE THANK THE SUBCOMMITTEES FOR THIS OPPORTUNITY TO TESTIFY ON THE
APPROPRIATE LEGISLATIVE RESPONSE BY THE CONGRESS TO THE PROBLEM OF
HAZARDOUS SUBSTANCES AND PRE-RCRA HAZARDOUS WASTE DISPOSAL SITES.
HAZARDOUS AND TOXIC WASTE DISPOSAL
STATEMENT OF AMERICAN INSURANCE ASSOCIATION CONCERNING S. 1325, S.
1341, S. 1480
PART 001 OF 8
KIMBLE J I COUNSEL
AMERICAN INSURANCE ASSOCIATION
104629
HEARINGS
CORRESPONDENCE
SENATE
TRANSCRIPT
JULY 27, 1979
THE HONORABLE EDMUND S. MUSKIE CHAIRMAN SUBCOMMITTEE ON ENVIRONMENTAL
POLLUTION COMMITTEE ON ENVIRONMENTAL AND PUBLIC WORKS 4202 DIRKSEN
SENATE OFFICE BUILDING WASHINGTON, D.C. 20510
WE HAVEDEMONSTRATED OUR INTEREST IN LEGISLATIONWHICH WOULD ADDRESS
THEPROBLEMS OFMARINE OIL POLLUTION, HAZARDOUS WASTE BEFORE THE SENATE
COMMITTEE ON ENVIRONMENTAL AND PUBLIC WORKS AND THEHOUSE COMMITTEE ON
MERCHANT MARINE AND FISHERIES.
THEMEMBER COMPANIES OF THE AMERICAN INSURANCEASSOCIATION MAY BEASKED
TO PROVIDE LIABILITY INSURANCE COVERAGE TO ONSHORE FACILITIES IN ORDER
TO SERVICE THE LIABILITY AND COMPENSATION SYSTEMS ESTABLISHED BY S.
1325, S. 1341 AND S. 1480. WITHOUT THE PROVISION OFINSURANCE,
OWNER-OPERATORS OF FACILITICS MAY NOT BE ABLE TOMEET THE FINANCIAL
RESPONSIBILITY REQUIREMENTS WHICH ARE MANDATED BY THE BILLS UNDER
CONSIDERATION.
ACCORDINGLY, THE AMERICAN INSURANCE ASSOCIATION REQUESTS THAT
THECNCLOSED STATEMENT BE MADE A PART OF THE PERMANENT HEARING RECORD ON
S. 1325, S. 1341, AND S. 1480.
HAZARDOUS AND TOXIC WASTE DISPOSAL
STATEMENT OF AMERICAN INSURANCE ASSOCIATION CONCERNING S. 1325, S.
1341, S. 1480
PART 002 OF 8
KIMBLE J I COUNSEL
AMERICAN INSURANCE ASSOCIATION
104630
HEARINGS
CORRESPONDENCE
SENATE
TRANSCRIPT
THE AMERICAN INSURANCE ASSOCIATION IS ATADE ASSOCIATION WHICH
REPRESENTS 149 STOCK, PROPERTY AND CASUALTY INSURANCE COMPANIES.
THE MEMBER COMPANIES OF THE AMERICAN INSURANCE ASSOCIATION MAY BE
ASKED TO PROVIDE LIABILITY INSURANCE COVERAGE TO ONSHORE FACILITIESIN
ORDER TO SERVICETHE LIABILITY ANDCOMPENSATION SYSTEMS ESTABLISHED BY S.
1325, S. 1341 AND S. 1480. WITHOUT THEPROVISION OF INSURANCE,
OWNER-OPERATORS OF FACILITIES MAY NOT BEABLE TO MEET THE FINANCIAL
RESPONSIBILITY REQUIREMENTS WHICH ARE MANDATED BY THE BILLS UDER
CONSIDERATION.
THE ESTABLISHMENT OF LEVELS OF INSURANCE COVERAGE BY FEDERAL
LEGISLATIVE MANDATE IS A SERIOUS PROBLEM FOR THE INSURANCE INDUSTRY.
THE DEMAND FOR INSURANCE COVERAGE TO SERVICE FEDERAL LIABILITYAND
COMPENSATION SYSTEMS MAY EXCEED THE INDUSTRY'S CAPACITY TO PROVIDE
PROTECTION. LEGISLATION WHICH IMPOSES LEVELS OF FINANCIAL
RESPONSIBILITY ON ONWER/OPERATORS AS A PREREQUISITE FOR DOING BUSINESS
TRANSFORMS INSURANCE FROM A CONSUMER PRODUCT TO TO SOCIETAL NECESSITY.
THE SUPPLY OF INSURANCE TO SERVICE A LIABILITY SYSTEM OR SYSTEMS WHICH
RESPONDS TO TOXIC DISCHARGES, HAZARDOUS WASTE DISPOSAL, ANDMARINE OIL
POLLUTION ISNOT PERFECTLY ELASTIC. IT IS LARGELY A FUNCTION OF
ANDLIMITED BY THE GENERAL CONDITION OF THE UNITED STATES AND FOREIGN
INSURANCE MARKETS, THE COMPETING DEMANDS FOR CAPACITY FROM A VARIETY OF
OTHER RISKS AND THE SPECIFIC ECONOMICS OF THE RISK OF CATASTROPHIC LOSS
ASSOCIATED WITH TE VARIOUS FEDERAL LEGISLATIVE PROPOSALS ASSOCIATED WITH
SUBSTANCES WHICH HAVE THE POTENTIAL FOR I-MEASURABLE ENVIRONMENTAL
DAMAGE AND PERSONAL INJURY.
THE CURRENT STATE OF THE ART OF INSURING ONSHORE FACILITIES FOR
POTENTIAL LIABILITY ASSOCIATED WITH MARINE OIL POLLUTION, HAZARDOUS
SUBSTANCES RELEASES AND HAZARDOUS WASTE DISPOSAL IS INADEQUATE TO ASSURE
AN IMMEDIATE RESPONSE TO THE NEED FOR INSURANCE COVERAGE TO RESPOND TO
THE FINANCIAL RESPONSIBILITY REQUIREMENTS ESTABLISHED IN THE BILLS
INTRODUCED DURING THE 96TH CONGRESS.
HAZARDOUS AND TOXIC WASTE DISPOSAL
STATEMENT OF AMERICAN INSURANCE ASSOCIATION CONCERNING S. 1325, S.
1341, S. 1480
PART 003 OF 8
KIMBLE J I COUNSEL
AMERICAN INSURANCE ASSOCIATION
104631
HEARINGS
CORRESPONDENCE
SENATE
TRANSCRIPT
/1/ STANDARD COMPREHENSIVE GENERAL LIABILITY POLICY WORDING, 1966
EDITION (NO CHANGE 1973).
THE CURRENT STATUS OF AVAILABILITY OF INSURANCE WITH RESPECT TO
COVERAGE FOR LIABILITY GENERATED BY TOXIC SUBSTANCES DISCHARGES, MARINE
OIL POLLUTION, AND HAZARDOUS WASTE DISPOSAL IS DESIGNED TO ACCOMMODATE
ACKNOWLEDGED AREAS OF COMPENSABILITY WITH QUALIFICATIONS BASED ON BASIC
INSURANCE PRINCIPLES AND PUBLIC POLICY DETERMINATION.
A LIABILITY INSURANCE CONTRACT IS AN AGRECMENT BETWEEN THE COMPANY
AND THE INSURED BY WHICH, IN CONSIDERATION OF THE PAYMENT OF A PREMIUM:
THE COMPANY WILL PAY ON BHELAF OF THEINSURED ALL SUMS WHICH THE
INSURED SHALL BECOME LEGALLY OBLIGATED TO PAY AS DAMAGES BECAUSE OF
BODILY INJURY OR PROPERTY DAMAGE TO WHICH THISDSURANCE APPLIES, CAUSED
BY AN OCCURENCE, AND THE COMPANY SHALL HAVE THE RIGHT AND DUTY TO DEFEND
ANY SUIT AGAINST THE INSURED SEEKING DAMAGES ON ACCOUNT O SUCH BODILY
UJURY OR PROPERTY DAMAGE, EVEN IF ANY OF THE ALLEGATIONS OF THE SUIT ARE
GROUNDLESS, FALSE OR FRAUDULENT. /1/
THE EXTENT OF COVERAGE FOR TOXIC SUBSTANCES POLLUTION AND HAZARDOUS
WASTE DISPOSAL IS LIMITED BY A RESTRICTIVE ENDORSEMENT WHICH STATES:
IT IS AGREED THAT THEINSURANCE DOES NOT APPLY TO BODILY INJURY
ORPROPERTY DAMAGE ARISING OUT OF THEDISCHARGE, DISPOSAL RELEASE OR
ESCAPE OF SMOKE, VAPORS, SOOT, FUMES, ACIDS, ALKALIS, TOXIC CHEMICALS,
LIQUIDS OR GASES, WASTE MATERIALS OR OTHER IRRITANTS, CONTAMINANTS OR
POLLUTANTS INTO OR UPON LAND, THE ATMOSPHERE OR ANY WATERCOURSE OR BODY
OF WATER; BUT THIS EXCLUSION DOES NOT APPLY IF SUCH DISCHARGE,
DISPERSAL, RELEASE OR ESCAPE IS SUDDEN AND ACCIDENTAL.
INSURANCE PROTECTION AGAINST OIL DISCHARGES BY ANOSHORE FACILITY INTO
A WATER COURSE OR BODY OFWTER IS GENERALLY NOT AVAILABLE TODAY,HAVING
BEENSIMILARLY EXCLUDED FROMTHE COMPREHENSIVE GENERAL LIABILITY POLICY IN
1970. THE RESTRICTIVE ENDORSEMENT READS:
IT IS AGREED THAT, IF WITH RESPECT TOOERATIONS DESCRIBED IN THE
ENDORSEMENT, THERE IS A DISCHARGE DISPERSAL, RELEASE OR ESCAPE OF OIL OR
OTHER PETROLEUM SUBSTANCE OR DERIVATIVE (INCLUDING ANY OIL REFUSE OR OIL
MIXED WITH WASTES) INTO OR UPON ANY WATERCOURSE OR BODY OF WATER, THE
INSURANCE DOES NOT APPLY TO BODILY INJURY OR PROPERTY DAMAGE ARISING OUT
OF SUCH DISCHARGE, DISPERSAL, RELEASE OR ESCAPE WHETHER SUDDEN OR
ACCIDENTAL.
THEREFORE, AS TO THEOIL INDUSTRY EXPOSURES, OIL POLLUTION ISNOT
COVERED REGARDLESS OF THE CAUSE EVEN IF ACCIDENTAL.
HAZARDOUS AND TOXIC WASTE DISPOSAL
STATEMENT OF AMERICAN INSURANCE ASSOCIATION CONCERNING S. 1325, S.
1341, S. 1480
PART 004 OF 8
KIMBLE J I COUNSEL
AMERICAN INSURANCE ASSOCIATION
104632
HEARINGS
CORRESPONDENCE
SENATE
TRANSCRIPT
AN "OCCURRENCE", BY DEFINITION IN INSURANCE POLICIES REQUIRES THAT
THE DAMAGES RESULTING NEITHER BE EXPECTED NOR BE INTENDED FROM THE
STANDPOINT OF THE INSURED.
ARGUABLY, IT WOULD BE AGAINST PUBLIC POLICY TO AFFORD INSURANCE FOR
LIABILITY RESULTING FROM TOXIC SUBSTANCES POLLUTION OR DISPOSAL. THE
NEW YORK STATE INSURANCE LAW EXPRESSLY PROHIBITS COVERAGE UNLESS THE
DISCHARGE IS BOTH SUDDEN AND ACCIDENTAL. IF AN INSURED KNOWINGLY
DAMAGES THE ENVIRONMENT, HE HASNO COVERAGE UNDER HIS LIABILITY POLICY
FOR THE LEGAL LIABILITY IMPOSED, OR SOUGHT TO BE IMPOSED. MANY
INSTANCES OF POLLUTION ARE NONACCIDENTAL OR INTENTIONAL. POLLUTERS
OFTEN KNOW THEY ARE POLLUTING BUT CANNOT OR WILL NOT STOP. MANY
INSTANCES OF POLLUTION BY HAZARDOUS SUBSTANCES WOULD NOT BE AFFORDED
COVERAGE BECAUSE THERE WAS A REASONABLE EXPECTATION OF DAMAGE BY THE
INSURED. A DISCHARGE OFHARMFUL WASTE PRODUCTS WHICH AN INSURED KNOWS IS
OCCURRING CONTINUOUSLY AND WHICH HE CAN REASONABLY CONCLUDE WILL CAUSE
PROPERTY DAMAGE OR BODILY INJURY ISNOT A PROPER SUBJECT MATTER OF
INSURANCE.
IN ADDITION TO THE INSURANCE INDUSTRY'S PAST DEMONSTRATED RELUCTANCE
TO PROVIDE COVERAGE FOR TOXIC SUBSTANCES DISCHARGES AND DISPOSAL, THE
DISSIMILARITIES BETWEEN THE CURRENT LIABILITY THEORIES AND THE LIABILITY
THEORIES PREFERRED BY THE CONGRESS WILL FURTHER IMPEDE THE DEVELOPMENT
OF AN INSURANCE MARKET. TRADITIONALLY, INSURERS HAVE BEEN RELUCTANT TO
PROVIDE INSURANCE COVERAGE TO SERVICE A NEW OR RAPIDLY DEVELOPING
LIABILITY AND COMPENSATION SYSTEM. NORMAL PROBLEMS OF RISK ASSESSMENT
ARE INTENSIFIED WHEN INSURERS LACK THE EXPERIENCE AND DATA BASE
GENERATED BY A WELL ESTABLISHED, PREDICTABLE LIABILITY SYSTEM. ACCURATE
PRICING OF THE INSURANCE MECHANISM IS IMPOSSIBLE UNTIL A CLASS OF
POTENTIAL CLAIMANTS IS IDENTIFIED AND THE SCOPE OF PTOENTIAL LIABILITY
IS DETERMINED THROUGH A PERIOD OF EXPOSURE TO THE SYSTEM.
THERE IS A SUBSTANTYIAL DEFICIENCY IN THE AVAILABILITY OF LIABILITY
COVERAGE TO PAY DAMAGES AND ATTORNEY'S FEES FOR THE TOXIC SUBSTANCES
LIABILITY CLAIMS BASED ON COMMON LAW THERRIES SUCH AS NEGLIGENCE,
TRESPASS AND NUISANCE. COVERAGE TO SERVICE THE COMPENSATION SYSTEM
CONTEMPLATED IN THE VARIOUS INITIATIVES PROPOSED BY THE 96TH CONGRESS
WOULD BE LIMITED TO TOXIC SUBSTANCES EMISSIONS WHICH ARE BOTH SUDDEN AND
ACCIDENTAL, THEREBY ELIMATING FROM COVERAGE MOST POLLUTION SITUATIONS.
THE STRICT LIABILITY SYSTEM WHICH WOULD BE ESTABLISHED BY CURRENT
FEDERAL LEGISLATION IN THE TOXIC SUBSTANCES AREA WOULD OVERCOME TWO OF
THE MOST SERIOUS BARRIERS TO RECOVERY THAT PLAINTIFFS HAVE ENCOUNTERED
UNDER THE COMMON LAW: (1) INABILITY TO PROVE NEGLIGENCE OF THE
DISCHARGER AND (2) INABILITY TO PROVE THAT THE RESULTANT DAMAGES ARE
SPECIAL, PROXIMATELU CAUSED BY THE POLLUTION, OR FORESEEABLE. UNDER
COMMON LAW, CLAIMANTS UNDER A NUISANCE THEORY MUST PROVE SPECIAL AND
PARTICULAR DAMAGES, DIFFERENT FROM THOSE OF THE GENERAL PUBLIC;
NEGLIGENCE CLAIMANTS MUST PROVE NEGLIGENCE, AS WELL AS"PROXIMATE
CAUSATION" AND FORESEEABILITY OF DAMAGES. EXCEPT FOR THE COMMERCIAL
LOSES OF FISHERMEN AND REPARIANS, COURTS HAVE BEEN RELUCTANT TO ALLOW
RECOVERY OF LOST PROFITS BY BUSINESSMEN ON THE RATIONALE THAT THE
NON-RIPARIANS DID NOT DIRECTLY USE THE POLLUTED BODY OF WATER, AND THAT
REDUCED PROFITS OF A BUSINESS ACTIVITY ARE TOO SPECULATIVE FOR RECOVERY.
FINALLY, THE LEGAL STATUS OF A STATE'S CLAIM TO POLLUTION DAMAGES
RESOURCES OR LOST TAX REVENUE DUE TO TOXIC SUBSTACES POLLUTION HAS NOT
ACHIEVED JUDICIAL RECOGNITION.
HAZARDOUS AND TOXIC WASTE DISPOSAL
STATEMENT OF AMERICAN INSURANCE ASSOCIATION CONCERNING S. 1325, S.
1341, S. 1480
PART 005 OF 8
KIMBLE J I COUNSEL
AMERICAN INSURANCE ASSOCIATION
104633
HEARINGS
CORRESPONDENCE
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TRANSCRIPT
MICROFORM REFILMED; SEE APPENDICES
THERE IS AN EMERGING, BUT STILL INSUFFICIENT, BODY OF INFORMATION ON
HAZARDOUS SUBSTANCES AND THEIR HEALTH IMPACT. THE SENATE ENVIRONMENT
AND PUBLIC WORKS COMMITTEE REPORT ON S. 2083 (S. REPT. 95-1152) NOTES.
". . . COMPREHENSIVE INFORMATION ON THE NUMBER, VOLUME, SOURCE, AND
LOCATION OF HAZARDOUS SUBSTANCE DISCHARGES IS NOT AVAILABLE." THIS LACK
OF INFORMATION AND EXPERIENCE WITH RESPECT TO HAZARDOUS SUBSTANCES
DISCHARGES WILL RETARD THE DEVELOPMENT OF AN INSURANCE MECHANISM TO
SERVICE ANY HAZARDOUS SUBSTANCE DISCHARGE AND/OR DISPOSAL LIABILITY
SYSTEM.
IN SHORT, THE LEGISLATION INTRODUCES BROAD NEW CATEGORIES OF
CLAIMANTS AND COMPENSABLE DAMAGES WHICH WILL MAKE RISK ASSESSMENT
EXTREMELY DIFFICULT UNTIL A DATA BASE IS GENERATED THROUGH CLAIMS
EXPERIENCE UNDER THE LIABILITY SYSTEM. DURING THIS INITIAL PERIOD
INSURERS WOULD BE IN THE UNCOMFORTABLE POSITION OF BASING THEIR RATES
MORE ON JUDGMENT THAN ON HARD DATA.
THE PROVISION OF INSURANCE FOR LIABILITY GENERATED BY MARINE OIL
POLLUTION IS ALSO LIMITED IN ITS CURRENT APPLICATION AND WOULD NOT BE
READILY AVAILABLE UNDER S. 1341. THE BILL WOULD VASTLY EXPAND THE OIL
POLLUTION LIABILITY REQUIREMENTS IMPOSED BY CURRENT FEDERAL LAW. AT
PRESENT, THE FEDERAL WATER POLLUTION CONTROL ACT LIMITS LIABILITY TO THE
COST OF REMOVAL OF OIL AND HAZARDOUS SUBSTANCES SPILLED INTO THE
NAVIGABLE WATERS OF THE UNITED STATES. CURRENT FEDERAL LAW DOES NOT
ADDRESS THE COMPLEX AND COSTLY ISSUE OF PERSONAL INJURY AND PROPERTY
DAMAGE RESULTING FROM MARINE OIL POLLUTION FOR ONSHORE FACILITIES AS
DOES S. 1341.
IN ORDER TO ENCOURAGE THE DEVELOPMENT OF AN INSURANCE MARKET TO
SERVICE THE LIABILITY AND COMPENSATION SYSTEMS UNDER CONSIDERATION BY
THE SUBCOMMITTEES, IT IS RESPECTFULLY SUGGESTED THAT KEY ISSUES BE
RESOLVED IN THE FOLLOWING MANNER.
A BASIC PURPOSE OF THE LEGISLATION SHOULD BE TO CREATE ONE SYSTEM,
UNIFORM THROUGHOUT THE UNITED STATES, WHICH WOULD PROVIDE COMPENSATION
OF INJURED PERSONS THROUGH EQUALITY OR TREATMENT AND THROUGH IDENTICAL
SETTLEMENT PROCEDURES, EFFECTIVE FOR ALL CLAIMANTS, REGARDLESS OF THE
LOCATION OF THE SPILL OR DISCHARGE. WITHOUT SWEEPING PREEMPTION
PROVISIONS, MULTIPLE AND CONFLICTING REQUIREMENTS AS TO THE NATURE,
STANDARD, AND SCOPE OF LIABILITY OF DISCHARGES WILL RESULT.
THE CLAIMANT'S POTENTIAL FOR FORUM SHOPPING MAKES IT DIFFICULT FOR
THE UNDERWRITER TO PROVIDE INSURANCE COVERAGE TO MEET ALL THE VARYING
STANDARDS AND LIMITS OF LIABILITY PROVIDED BY STATE AND FEDERAL LAW.
MANY YEARS OF EXPERIENCE UNDER JOINT STATE AND FEDERAL LIABILITY SYSTEMS
WOULD BE NECESSARY BEFORE AN INSURANCE MECHANISM COULD BE PRICED TO
MAINTAIN BOTH ACCURACY OF RATES AND INSURER SOLVENCY.
THE PROHIBITION AGAINST THE USE OF HOLD HARMLESS AGREEMENTS IS
INTENDED TO ASSURE THAT THE LIABILITY IMPOSED BY THE ACT INITIALLY RESTS
WITH THE PRODUCERS IN ORDER TO EXPEDITE CLEANUP AND DAMAGE CLAIM
SETTLEMENT. THE BILLS DO NOT ADDRESS THE ISSUE OF THE CONTRACTUAL
AGREEMENTS BETWEEN OWNER-OPERATORS AND THEIR CONTRACTORS WHICH, DUE TO
INEQUALITY IN BARGAINING POWER, COULD RESULT IN LIABILITY BEING PASSED
DOWN FROM OWNER-OPERATORS TO CONTRACTORS AND SUBCONTRACTORS WHO WILL
ACCEPT THE CONTRACT PROVISION IN ORDER TO WIN THE CONTRACT.
HAZARDOUS AND TOXIC WASTE DISPOSAL
STATEMENT OF AMERICAN INSURANCE ASSOCIATION CONCERNING S. 1325, S.
1341, S. 1480
PART 006 OF 8
KIMBLE J I COUNSEL
AMERICAN INSURANCE ASSOCIATION
104634
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IF OWNERS AND OPERATORS ARE PERMITTED TO SHIFT THEIR LIABILITY
THROUGH HOLD HARMLESS AGREEMENT, CONTRACTORS AND SUBCONTRACTORS WOULD BE
FACED WITHTHE NECESSITY OF SELF-INSURING OR PURCHASING INSURANCE
PROTECTION AGAINST LIABILITY THAT THE ACT INTENDS TO IMPOSE ON
OWNER-OPERATORS. AN ALREADY LIMITED INSURER CAPACITY TO PROVIDE
COVERAGE FOR LIABILITY GENERATED BY HAZARDOUS SUBSTANCES DISCHARGES
WOULD BE EXTENDED BEYOND ITS LIMITS.
S. 1480 MAKES REFERENCE TO DAMAGES FOR ECONOMIC LOSS RESULTING FROM:
"INJURY TO, OR DESTRUCTION OF, REAL OR PERSONAL PROPERTY";
"LOSS OF USE OF REAL OR PERSONAL PROPERTY", AND
"LOSS OFUSE OF NATURAL RESOURCES".
HOWEVER, THE BILL DOES NOT PROVIDE A DEFINITION OF CLAIMANT STANDING.
THE DEFINITION OF CLAIMANT STANDING GIVES THE INSURANCE UNDERWRITER AND
ACTUARY A CLEARER PICTURE OF THE EXTENT OF POTENTIAL LIABILITY. RISK
ASSESSMENT BECOMES FEASIBLE WHEN THE CLASS OF POTENTIAL CLAIMANTS IS
IDENTIFIABLE. INSURERS WILL BE RELUCTANT TO PARTICIPATE IN THEPROVISION
OF INSURANCE COVERAGE FOR THE LIABILITY SYSTEM ESTABLISHED THROUGH COURT
PROCEEDINGS. ACCURATE PRICING OF THE INSURANCE MECHANISM WILL BE
IMPOSSIBLE UNTIL THE SCOPE OF THE LIABILITY SYSTEM IS FIXED. ADDITIONAL
COSTS TO INSURERS WILL BE REALIZED DUE TO DEFENSE OF CLAIMS EVEN IF
CLAIMANTS ARE FOUND NOT TO HAVE STANDING OR AWARDS ARE DIMINUTIVE.
S. 1341 RECOGNIZES THE GENERAL UNAVAILABILITY OF MARINE OIL POLLUTION
INSURANCE COVERAGE BY OMITTING THE REQUIREMENT FOR FINANCIAL
RESPONSIBILITY REQUIREMENTS FOR ONSHORE FACILITIES WHILE IMPOSING HIGH
LEVELS OF DAMAGE LIABILITY LIMITS. RATHER THANMANDATING AN UNREALISTIC
LEVEL OF INSURANCE FOR ONSHORE FACILITIES, THE BILL PERMITS AN INSURANCE
MARKET TO DEVELOP OVER A PERIOD OF TIME AFTERINSURERS ARE GIVEN THE
OPPORTUNITY TO MONITOR THE LIABILITY SYSTEM IN ORDER TO GAIN THE
EXPERIENCE NECESSARY TO DIFFERENTIATE BETWEEN RISK CLASSIFICATIONS AND
TO PRICE THE LIABILITY SYSTEM.
S. 1431 PROVIDES FOR AN $8 MILLION MINIMUM FOR ONSHORE FACILITY
DAMAGE LIABILITY LIMITS FOR POLLUTION OR WASTE. AN ARBITRARY LIABILITY
THRESHOLD OF $8 MILLIONDOES NOT ACCURATELY REFLECT THEPOTENTIAL FOR
LIABILITY FOR SMALL FACILITIES. LIABILITY LIMITS FOR ONSHORE FACILITIES
SHOULD BE FORMULATED THROUGH THE APPLICATION OF REASONABLE UNDERWRITING
CRITERIA SUCH AS LOCATION, CAPACITY AND TYPE OF SUBSTANCE. IT IS
POSSIBLE THAT IF THE LIABILITY LIMITS FOR SMALL FACILITIES ARE REDUCED,
ANDTHESE FACILITIES ARE NOT COMPELLED TO FURNISH EVIDENCE OF FINANCIAL
RESPONSIBILITY, AN INSURANCE MARKET FOR ONSHORE FACILITIES MAY DEVELOP
OVER TIME.
HAZARDOUS AND TOXIC WASTE DISPOSAL
STATEMENT OF AMERICAN INSURANCE ASSOCIATION CONCERNING S. 1325, S.
1341, S. 1480
PART 007 OF 8
KIMBLE J I COUNSEL
AMERICAN INSURANCE ASSOCIATION
104635
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S. 1341 PROVIDES THAT SETTLEMENT BETWEEN OWNER-OPERATOR OR GUARANTOR
(INSURER) AND CLAIMANT MUST BE WITHIN 120 DAYS OR THE CLAIM WILL BE
REFERRED TO THE FUND, OR AN ACTION INTHE COURTS MAY BE INITIATED. ANY
SETTLEMENT PERIOD OF LESS THAN 120 DAYS WOULD RESULT INUNNECESSARY
LITIGATION.
PROPER INSURER ASSESSMENT OF DAMAGES IN SPECULATIVE AREAS OF
LIABILITY SUCH AS LOSS OF USEOF NATURAL RESOURCES ORLOSS OF INCOME
CANNOT BE MADE IN A PERIOD OF LESS THAN 120 DAYS. MANY CASES WHICH
COULD BE SETTLED WOULD BE REFERRED TOTHE COURTS OR THE FUND, NOT BECAUSE
THE FACTS ARE CONTESTED, BUT BECAUSE PROPER DAMAGE APPRAISAL IS
IMPOSSIBLE.
THE QUESTION OF CAUSAL RELATIONSHIP ISTHE MOST DIFFICULT AND COMPLEX
ISSUE IN LITIGATION ASSOCIATED WITH TOXIC SUBSTANCES DISCHARGE
LIABILITY. PROBLEMS OF MULTIPLE CAUSATION AND LONG LATENCY IN DISEASE
DEVELOPMENT MAKE IT EXTREMELY DIFFICULT FOR THE PLAINTIFF TO CARRY THE
BURDEN OF PROVING CAUSAL CONNECTION BETWEEN THE DISEASE AND THE TOXIC
SUBSTANCE DISCHARGE. IN RECOGNITION OF THIS PROBLEM, S. 1480 PROVIDES
THE INJURED PARTY WITH A "PRESUMPTION" WHICH IS COMPARABLE TO AN
ABSOLUTE ENTITLEMENT FOR ANY INDIVIDUAL WHO IS EXPOSED TO A HAZARDOUS
SUBSTANCE DISCHARGE AND WHO CAN PRESENT EVIDENCE OF MEDICAL EXPENSE. THE
BILL PROVIDES FOR A "STATISTICAL CORRELATION" TEST WHICH INDICATES THAT
AN INCREASE OF INCIDENCE OF INJURY OR DISEASE WILL TRIGGER AN AWARD FOR
MEDICAL EXPENSES. HOWEVER, THE BILL DOES NOT ADDRESS THE DIFFICULT
PROBLEM ID DISTINGUISHING BETWEEN DISEASE VICTIMS WHOSE DISEASE IS
RELATED TO THEHAZARDOUS SUBSTANC DISCHARGE AND DISEASE VICTIMS WHOSE
DISEASE SHOULD BE CONSIDERED "STATISTICALLY PROBABLE". THIS ISNOT AN
INSURABLE RISK. BASIC PRINCIPLES OF COMPENSABILITY ARE ABANDONED WHEN
PROOF OF CAUSAL RELATIONSHIP BETWEEN DISABILITY AND SUBSTANCE IS NOT
REQUIRED.
S. 1341 AND S. 1480 PROVIDE FOR THE CLAIMANT'S ELECTION TO COMMENCE
AN ACTION AGAINST THE OWNER-OPERATOR OR GUARANTOR (INSURER). THE BILLS
ALSO PROVIDE THATDEFENDANTS SHALL BE "JOINTLY, SEVERALLY,AND STRICTLY
LIABLE". THEONLY MATERIAL ISSUES IN A SRICT LIABILITY ACTION ARE
WHETHER THE PRODUCT PROVES TOHAVE A DEFECT THAT CAUSES AN INJURY TO A
HUMAN BEING. THE EXISTENCE OF INSURANCE, NO MATTER HOW REVEALED TO A
JURY, IS TOTALLY IRRELEVANT TO THESE ISSUES. IT DOES NOT FURNISH ANY
HELP IN ANSWERING QUESTIONS AS TOTHE PRODUCT'S DEFECT OR THE EXTENT OF
THE INJURIES OR LOSS SUFFERED BY THE INJURED PARTY.
RULES OF EVIDENCE PROPERLY ARE DESIGNED TO LIMIT THE TYPE OF EVIDENCE
WHICH MAY BE INSTRODUCED IN A TRIAL TO THOSE MATTERS WHICH ARE LOGICALLY
RELEVANT. LEGISLATION PERMITTING DIRECT ACTION AGAINST AN INSURER WOULD
DESTROY THE EFFICACY OF THE GENERAL EVIDENTIAL RULE PRECLUDING ADMISSION
OF INFORMATION AS TO THE EXISTENCE OF INSURANCE. THEONLY REAL MOTIVE
FOR MAKING THE INSURER A PARTY TO THE SUIT IS TO INFORM THEJURY OF THE
EXISTENCE OF INSURANCE, I.E. TO LEGALIZE THEINTRODUCTION OF EVIDENCE
WHICH IS NOT ONLY IRRELEVANT AND IMMATERIAL BUT ALSO EVIDENCE WHICH IS
GENERALLY HELD TO BE PREJUDICIAL.
DIRECSUIT AGAINST THE INSURER, LIKE THE INTRODUCTION OF EVIDENCE OF
INSURANCE, WOULD INDUCE A JURY TO IGNORE RELEVANT PROOF AND TO
SUBSTITUTE PROOF OF INSURANCE FOR THE SUBSTANTIVE ISSUES OF DEFECT AND
DAMAGE. BECAUSE THE PLAINTIFF HAS SUFFERED AN INJURY AND INCURRED
EXPENSES, THE JURY'S PREDISPOSITION IS TO ASSUME THE PLAINTIFF IS
ENTITLED TO RECOVERY, PARTICULARLY SINCE THE BURDEN OF THE JUDGMENT WILL
FALL UPON A LARGE, IMPERSONAL CORPORATION.
HAZARDOUS AND TOXIC WASTE DISPOSAL
STATEMENT OF AMERICAN INSURANCE ASSOCIATION CONCERNING S. 1325, S.
1341, S. 1480
PART 008 OF 8
KIMBLE J I COUNSEL
AMERICAN INSURANCE ASSOCIATION
104636
HEARINGS
CORRESPONDENCE
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IT HAS BEEN ARGUED THAT DIRECT ACTION LEGISLATION IS NECESSARY TO
ELIMINATE CIRUITY OF ACTION. THISSUGGESTS THAT CASES ARE FREQUENT WHERE
THE INSURED'S LIABILITY IS JUDICIALLY DETERMINED AND THE INSURER REFUSES
TO PAY UNDER THE POLICY. ACTUALLY,THE CONTRARY IS TRUE. IT IS ONLY
UNDER THE MOST EXCEPTIONAL CIRCUMSTANCES THAT AN INSURER WOULD REFUSE TO
PAY A JUDGMENT TO THE EXTENT OF ITS POLICY LIMITS AND THEN ONLY WHERE IT
FEELS IT MUST ASSERT A LEGITIMATE DEFENSE UNDER THE INSURANCE CONTRACT.
IN SUCH A- UNUSUAL CASE, THELAW PROVIDES AN ADEQUATE REMEDY IN THE FORM
OF A SUIT AGAINST THE INSURER BY THE JUDGMENT CREDITOR.
THE AMERICAN INSURANCE ASSOCIATION RECOMMENDS THAT FINANCIAL
RESPONSIBILITY REQUIREMENTS FOR ONSHORE FACILITIES NOT BE INCLUDED IN
LEGISLATIONADDRESSING THE PROBLEMS OF MARINEOIL POLLUTION, HAZARDOUS
WASTEDISPOSAL OR HAZARDOUS SUBSTAN CS DISCHARGES. LEVELS OFINSURANCE
COVERAGE ESTABLISHED BY LEGISLATIVE FIAT WILL NOT PROPERLY REFLECT
THEINSURANCE INDUSTRY'S CAPACITY OR WILLINGNESS TO PROVIDE THE COVERAGE
TO OWNER/OPERATORS WHO WILL BE UNABLE TO CONDUCT BUSINESS WITHOUT
EVIDENCE OF FINANCIAL RESPONSIBILITY CERTIFICATION. THEINCLUSION OF A
FINANCIAL RESPONSIBILITY REQUIREMENT FOR ONSHORE FACILITIES IN FEDERAL
LEGISLATION WHICH CREATES A LIABILITY AND COMPENSATION SYSTEM FOR MARINE
OIL OR HAZARDOUS SUBSTANCES POLLUTION WILL RESULT IN AN IMMEDIATE
AVAILABILITY AND/OR AFFORDABILITY OFDSURANCE PROBLEM.
HAZARDOUS AND TOXIC WASTE DISPOSAL
STATEMENT
CHAFEE J H U.S. SENATOR
RHODE ISLAND
U.S. SENATE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS SUBCOMMITTEES
ON RESOURCE PROTECTION AND ENVIRONMENTAL POLLUTION
104637
HEARING
TRANSCRIPT
SENATE
THE SUBCOMMITTEES MET, PURSUANT TO NOTICE, AT 9:30 A.M., IN ROOM
4200, DIRKSEN SENATE OFFICE BUILDING, HON. JOHN H. CHAFEE PRESIDING.
PRESENT: SENATOR CHAFEE.
SENATOR CHAFEE. WE WELCOME EVERYBODY HERE THISMRNING. WHAT WE
THOUGHT WE WOULD DO IS TO TAKE THE FIRST GROUP OF WITNESSES AND EACH
WILL HAVE A CHANCE TOMAKE HIS OR HER STATEMENT, BUT I WOULD LIKE THEM
ALL TO ASSEMBLE AT THE TABLE TOGETHER. THAT IS, MR. FRANK FRIEDMAN, MR.
KENNETH KAMLET, CAPTAIN DAVIES, MR. ROSCOE HOGAN, AND MR. SWAN. BUT
THEN I THOUGH WE WOULD BE ABLE TOHAVE A LITTLE INTERCHANGE AMONGST THE
WITNESSES. WE HAVE ONLY GOT GIVE. SO THERE OUGHT TO BE FIVE SEATS
HERE.
JUST SO I CAN GETHE NAMES OF THEPLAYERS STRAIGHT, MR. FRIEDMAN, WOULD
YOU IDENTIFY YOURSELF? MR. KENNETH KAMLET, FROM THENATIONAL WILDLIFE
FEDERATION. CAPTAIN DAVIES FROM KEYSTONE SHIPPING. MR. ROSCOE HOGAN,
AND MR. DAVID SWAN FROM KENNECOTT.
I JUST WANT TOPOINT OUT THAT THIS IS THE FINAL HEARING THAT WE
ARE HAVING IN CONNECTION WITH THE HAZARDOUS SUBSTANCES LEGISLATION.
THESE HEARINGS HAVE BEEN CONDUCTED BY TWO SUBCOMMITTEES OF THE
ENVIRONMENTAL RESOURCES COMMITTEE, NAMELY THE RESOURCE
PROTECTION SUBCOMMITTEE ANDTHE ENVIRONMENTAL POLLUTION
SUBCOMMITTEE. THEY HAVE BEEN WORKING TOGETHER IN DEVELOPING
AND REVIEWING THE LEGISLATION THAT WE ARE CONSIDERING TODAY.
WE ARE TALKING ABOUT ABANDONED WASTE SITES AS WELL ASOTHER SERIOUS
RELEASES OFHAZARDOUS SUBSTANCES INTOTHE LAND, WATER AND AIR. AND, THE
EFFORTS, OUR EFFORTS, AND THE .EFFORTS OF OTHERS, IN THE GOVERNMENT AND
PRIVATE SECTORS, ARE DRECTED TOWARD, WHAT HAVE BECOME VERY SERIOUS
PROBLEMS, AS W ALL KNOW. I DON'T THINK WE HAVE TO ACCENT THIS IN THE
GROUP HERE TODAY. IT IS VERY COMPLICATED AND EXTREMELY EXPENSIVE IN
SOLVING THIS PROBLEM.
SOME WOULD SUGGEST, I SUPPOSE, THAT WE HAVE ALREADY GOT LEGISLATION
ON THE BOOKS,EITHER FEDERAL OR THROUGH THE REGULATORY LAW. THAT IS
TRUE, WE DO HAVE A GOOD QUANTITY OF THAT DEALING WITH THISTYPE OF
PROBLEM, BUT THERE IS NO QUESTION THERE ARE GAPS IN THOSE LAWS, GAPS
THAT ARE RECOGNIZABLE WHEN ONE SEES THE PROBLEMS FOR WHICH NO FEDERAL
REMEDY HAS YET BEEN DRAFTED.
ABANDONED SITES, THIRD=PARTY DAMAGES, DAMAGES TO IRREPARABLE NATURAL
RESOURCES. THEY DON'T GO AWAY BECAUSE WE SAY THERE ARE SOME LAWS
DEALING WITH SOME OFTHESE MATTERS.
THE QUESTION IS HOW FAR CAN WE GO TO MEET THESE PROBLEMS, WHAT
DAMAGES SHOULD BECOVERED, WHAT IS THEEXTENT OF LIABILITY, HOW DO WE
IMPOSE THE FEE SYSTEM. SHOULD OIL BEINCLUDED? DO WE PREEMPT THE STATES
OR DON'T WE PREEMPT THE STATES? THESE ARE SOME OF THE DECISIONS THAT WE
HAVE GOT BEFORE US,AND WELOOK FORWARD TO ENLIGHTENMENT IN THESE AND OHER
MATTERS, AND SO,THEREFORE, WHY DON'T WE START. I WILL GO RIGHT DOWN
THELIST. FIRST, MR. FRIEDMAN, THEN MR. KAMLET. CAPTAIN DAVIES, MR.
HOGAN. AND MR. SWAN. DON'T MAKE YOUR STATEMENTS TOO LONG IF YOU CAN AND
THEN WEWILL INTERCHANGE WITH ALL FIVE OF YOU PRESENT AT THE SAME TIME.
STATEMENTS
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 001 OF 25
FREIDMAN F MANAGER, OCCUPATIONAL AND ENVIRONMENTAL PROTECTION
KAMLET K DIRECTOR, TOXIC AND HAZARDOUS WASTE SECTION
DAVIES C D MANAGER, CLAIMS
HOGAN R TRIAL LAWYER
SWAN D VICE PRESIDENT, ENVIRONMENTAL AFFAIRS
ATLANTIC RICHFIELD CO
CHEMICAL MANUFACTURERS ASSOCIATION
NATIONAL WILDLIFE FEDERATION
KEYSTONE SHIPPING CO PHILADELPHIA
AMERICAN INSTITUTE OF MERCHANT SHIPPING
AMERICAN TRIAL LAWYERS ASSOCIATION
KENNECOTT COPPER CORP
THE AMERICAN MINING CONGRESS
104638
HEARING
TRANSCRIPT
SENATE
MR. FRIEDMAN. THANK YOU, SEANTOR.
SENATOR CHAFEE. DO YOU HAVE A STATEMENT THAT YOU HAVE SUBMITTED?
MR. FRIEDMAN. YES: WE HAVE. (SEE P. 713.) SENATOR, MY NAME IS FRANK
FRIEDMAN, MANAGER OF EXTERNAL AFFAIRS, OCCUPATIONAL AND ENVIRONMENTAL
PROTECTION OF THE ATLANTIC RICHFIELD CO. I AM ALSO A MEMBER OF THE
ENVIRONMENTAL MANAGEMENT COMMITTEE OF THE CHEMICAL MANUFACTURERS
ASSOCIATION. TODAY I AMSPEAKING ON BEHALF OF CMA, A NONPROFIT TRADE
ASSOCIATION HAVING 190 U.S. COMPANY MEMBERS THAT REPRESENT MORE THAN 90
PERCENT OF THE PRODUCTION CAPACITY OF BASIC INDUSTRIAL CHEMICALS WITHIN
THIS COUNTRY.
WE COMMEND YOU FOR HOLDING ADDITIONAL HEARINGS ON THE QUESTION OF
COMPENSATION AND LIABILITY LEGISLATION FOR RELEASES OF TOXIC OR
HAZARDOUS SUBSTANCES. THIS IS A COMPLEX SUBJECT THAT MERITS THOROUGH
CONGRESSIONAL STUDY.
OUR PROBLEMS WITH THE ULTRAFUND APPROACH HAVE BEEN EXPLAINED IN
PREVIOUS COMMENTS BEFORE YOUR SUBCOMMITTEE. LET ME BRIEFLY SUMMARIZE
SOME OF THESE PROBLEMS PRIOR TO SPECIFICALLY ADDRESSING S. 1480.
WE SUGGEST THAT THERE IS AN OPEC FIX. WE DO SUPPORT CHANGES, NAMELY
WE BELIEVE EXISTING LAWS DEALING WITH OLD, ABANDONED DUMPSITES ARE NOT
ADEQUATE AND THAT NEW LEGISLATION IS NECESSARY TO ADDRESS THIS ORPHAN
SITE PROBLEM. AS WE WILL DISCUSS IN OUR TESTIMONY, THE CMA APPROACH IS
PREFERABLE IN DEALING WITH THE SPECIFIC EMERGENCY PROBLEM THROUGH
MASSIVE REWRITING. IN EFFECT, S. 1480 DESTROYS THE ENTIRE FABRIC OF
ENVIRONMENTAL LAW WHICH HAS TAKEN 9 YEARS OF MASSIVE EFFORTS BY THE
COMMITTEE.
STATEMENTS
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 002 OF 25
FREIDMAN F MANAGER, OCCUPATIONAL AND ENVIRONMENTAL PROTECTION
KAMLET K DIRECTOR, TOXIC AND HAZARDOUS WASTE SECTION
DAVIES C D MANAGER, CLAIMS
HOGAN R TRIAL LAWYER
SWAN D VICE PRESIDENT, ENVIRONMENTAL AFFAIRS
ATLANTIC RICHFIELD CO
CHEMICAL MANUFACTURERS ASSOCIATION
NATIONAL WILDLIFE FEDERATION
KEYSTONE SHIPPING CO PHILADELPHIA
AMERICAN INSTITUTE OF MERCHANT SHIPPING
AMERICAN TRIAL LAWYERS ASSOCIATION
KENNECOTT COPPER CORP
THE AMERICAN MINING CONGRESS
104639
HEARING
TRANSCRIPT
SENATE
CONGRESS, ENVIRONMENTAL AGENCIES, THE PUBLIC, AND INDUSTRY TO MAKE
ENVIRONMENTAL LAW WORK. IN ESSENCE, WE ARE TURNING THE CLOCK BACK TO
1969.
LET'S GET INTO SOME DETAIL IN TERMS OF WHAT SOME OF OUR PROBLEMS ARE.
FIRST OF ALL, LET'S DEAL WITH SOME OF THE ISSUES BEFORE GETTING TO S.
1480. FIRST, WE BELIEVE THAT OILSPILLS SHOULD BE HANDLED SEPARATELY
FROM CHEMICAL SPILLS, AND WE HAVE ADDRESSED THIS IN DETAIL IN OUR
PREVIOUS TESTIMONY.
SECOND, CHEMICAL SPILLS SHOULD BE HANDLED SEPARATELY FROM WASTE
DISPOSAL INCIDENTS. WE HAVE INDICATED THOSE REASONS. IN PARTICULAR WE
NOTE THAT CONGRESS NOTED THESE DIFFICULTIES WHEN IT DECIDED TO DEAL WITH
SPILLS IN DISPOSAL INSTANCES IN TWO DIFFERENT STATUTES. THE FEDERAL
WATER POLLUTION CONTROL ACT AND THE RESOURCE CONSERVATION RECOVERY ACT.
THERE IS NO REASON TO CHANGE THIS POLICY. THERE IS NO NEED TO ENACT A
NEW FEDERAL PROGRAM OF SPILLS OF HAZARDOUS SUBSTANCES. LAST YEAR WE
WORKED WITH EPA AND THE APPROPRIATE CONGRESSIONAL COMMITTEES TO SECURE
NEW OR WORKABLE LEGISLATIVE LANGUAGE IN SECTION 311 OF THE CLEAN WATER
ACT. THEN CONGRESS ADOPTED THESSE CHANGES. SECTION 311, AS AMENDED,
PROVIDES A COMPREHENSIVE TESTIMONY OF LAW WHICH ADDRESSES PROBLEMS WHICH
RESULT FROM SPILLS.
SENATOR CHAFEE. THOSE ARE SPILLS IN THE WATER?
MR. FRIEDMAN. THAT IS CORRECT, SENATOR. THE POINT IS, THAT THOSE
ARE COVERED UNDER SECTION 311. SECTION 504 COVERS BROADER BASED
SITUATIONS, IT COVERS EMERGENCY AREAS AND INCLUDES SPILLS ON LAND.
SECTION 504 HAS NEVER BEEN FUNDED. IN FACT, COMMENTS WERE MADE
YESTERDAY THAT SECTION 504 HASN'T WORKED. THAT IS CERTAINLY TRUE. IF
THE SECTION ISN'T FUNDED, CLEARLY IT IS NOT GOING TO WORK. MOREOVER, I
THINK IT IS IMPORTANT TO NOTE THE QUESTION OF LAND SPILLS. MOST OF
THESE ARE RAILROAD CAR TYPES OF PROBLEMS, WHICH ARE IN FACT COVERED.
SENATOR CHAFEE. WOULD YOU REPEAT THAT: I COULDN'T HEAR YOU.
MR. FRIEDMAN. I AM SAYING MANY SPILLS ONTO THELAND ARE SITUATIONS IN
WHICH THERE IS A KNOWN INDIVIDUAL INVOLVED, A KNOWN COMPANY. A LOT OF
THESE ARE RAILRAOD CAR DISPOSALS, AREAS, ESSENTIALLY COVERED BY THE
PEOPLE RESPONSIBLE. OUR SUGGESTION WOULD CERTAINLY BE, WITH RESPECT TO
LAND AND OTHER AREAS, TO LET 504 WORK AND 311 WORK.
SENATOR CHAFEE. 504 HASN'T TO DO WITH DAMAGES. ISN'T IT THE
EMERGENCY RESPONSE ACT?
MR. FRIEDMAN. THAT IS CORRECT; 311 DOES DEAL SPECIFICALLY AGAIN
WITH THE SPILL SITUATION: 311 HAS NOT BEEN FULLY FUNDED. UNDER 311,
FOR EXAMPLE, THE ENVIRONMENTAL PROTECTION AGENCY HAS INDICATED IN, I
BELIEVE, THE INTERAGENCY TASK FORCE REPORT -- EPA WAS PART OF THAT --
THAT JUST CLEANING UP SPILLS ALONG WAS GOING TO COST ABOUT $14 MILLION.
IN THE ECONOMICAL ANALYSIS OF THE ADMINISTRATION'S BILL, THEY HAVE
INDICATED EVEN RECOVERING THIRD-PARTY CLAIMS, LAND SPILLS, THINGS SUCH
AS THIS, THEY ASSUME THEY WOULD NEED ROUGHLY $40 MILLION. INSTEAD OF
ENACTING A NEW LAW CON-RESS SHOULD FULLY FUND SECTION 311 AND SECTION
504. IN OTHER WORDS, USING THE BASIC LEGIALATIVE SITUATION THAT WE HAVE
RIGHT NOW, OR THROUGH MINOR CHANGES IN THOSELAWS, WE CAN TAKE CARE OF
THE PROBLEM WITHOUT MAKING A COMPLETE CHANGE IN THEENVIRONMENTAL LAW.
STATEMENTS
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 003 OF 25
FREIDMAN F MANAGER, OCCUPATIONAL AND ENVIRONMENTAL PROTECTION
KAMLET K DIRECTOR, TOXIC AND HAZARDOUS WASTE SECTION
DAVIES C D MANAGER, CLAIMS
HOGAN R TRIAL LAWYER
SWAN D VICE PRESIDENT, ENVIRONMENTAL AFFAIRS
ATLANTIC RICHFIELD CO
CHEMICAL MANUFACTURERS ASSOCIATION
NATIONAL WILDLIFE FEDERATION
KEYSTONE SHIPPING CO PHILADELPHIA
AMERICAN INSTITUTE OF MERCHANT SHIPPING
AMERICAN TRIAL LAWYERS ASSOCIATION
KENNECOTT COPPER CORP
THE AMERICAN MINING CONGRESS
104640
HEARING
TRANSCRIPT
SENATE
SENATOR CHAFEE. WHY DON'T YOU PROCEED WITH YOUR TESTIMONY?
MR. FRIEDMAN. CERTAINLY, AGAIN, AS I HAVE STATED, WE DON'T NEED TO
REWRITE THE ENVIRONMENTAL LAW. WHAT WE NEED IS CONGRESSIONAL SUPPORT
AND FULL FUNDING IN THESE AREAS. MOREOVER, WE SUGGEST THAT THERE IS NO
NEED FOR ADDITIONAL LEGISLATION ON HAZARDOUS SUBSTANCE SPILLS UNTIL THE
STUDY MANDATED BY THE 1978 AMENDMENTS OF THE CLEAN WATER ACT WAS
COMPLETED. WE ASSUME THAT IS THE PURPOSE OF THE STUDY, TO DETERMINE
WHAT IS NECESSARY.
I WOULD LIKE TO POINT OT AGAIN, THAT THE LIMITED DATA THAT WE HAVE
AVAILABLE ON HAZARDOUS SUBSTANCE SPILLS INDICATES THAT THE SPILLER IS
PAYING ALMOST ALL THE COST OF CLEANUP. AGAIN, I AM GOING TO CITE AN EPA
STUDY, AN ARTHUR D. LITTLE STUDY, WHICH INDICATES THAT 90 PERCENT OF THE
COST FOR SUCH CLEANUP IS CURRENTLY PAID FOR BY INDUSTRY. SO, IN ESSENCE,
I THINK THIS SITUATION IS FULLY COVERED UNDER CURRENT PRACTICES AS
EVIDENT BY EPA'S OWN DATA.
FOURTH, THE CLEANUP OF ABANDONED AND INACTIVE WASTE SITES SHOULD BE
ACCOMPLISHED WITH FEDERAL AND STATE FUNDS. WE HAVE INDICATED THE
REASONING FOR THIS IN OUR PREVIOUS TESTIMONY. WE NOTED THE TERMS OF THE
BASIC POSITIONS BEHIND THATAND WE WOULD BE HAPPY TO GO INTO THAT IN
FURTHER DETAIL.
LET'S LOOK AT 1480, BECAUSE I THINK THAT IS REALLY THE FOCUS OF OUR
MAJOR CONCERNS, PARTICULARLY WITH THE RELEASE CONCEPT WHICH WE BELIEVE,
AGAIN, REWRITES ALL ENVIRONMENTAL LAW THAT DEALS WITH AN EMERGENCY
PROBLEM. I WOULD LIKE TO REITERATE OUR SUPPORT FOR DEALING WITH THE
SPECIFIC PROBLEM OF ORPHAN SITES, ABANDONED SITES. THAT IS WHERE THE
PROBLEM IS. THAT IS WHERE THE EMERGENCY ISSUES EXIST. WE BELIEVE
EXISTING LAW DEALING WITH THIS AREA IS NOT ADEQUATE AND THAT NEW
LEGISLATION IS NECESSARY, BUT 1480 IS NOT THE ANSWER. LOOKING, FOR
EXAMPLE, AT SECTION 3(A)(2) OF THIS PROPOSED LEGISLATION, IT PROVIDES AN
INCREDIBLE BROAD LANGUAGE. IT PROVIDES THAT THE RELEASE OR DISPOSAL OF
ANYHAZARDOUS SUBSTANCE IS PROHIBITED, PERIOD. THE RESULT OF THIS
DRAFTING WILL LITERALLY OVERTURN VIRTUALLY ALL EXISTING ENVIRONMENTAL
LAW. WE HAVE NO LAW THAT SAYS EVERYTHING IS PROHIBITED REGARDLESS OF
HAZARD OR ANYTHING ELSE. RELEASE IS PROHIBITED, AND SUBSEQUENT TO LEGAL
LIABILITIES. IT IS A FLAT PROHIBITION.
WHAT WE NEED IS TO GO BACK TO THE ENVIRONMENTAL LAW DEVELOPED OVER
THE YEARS, WHICH IS CAREFULLY STRUCTURED, AND WITH SPECIFIC LIMITS ON
CERTAIN DISCHARGES. THE ENTIRE STRUCTURE OF THE ENVIRONMENTAL LAW
SHOULD NOT BE WRITTEN IN AN EFFORT TO DEAL WITH THIS SPECIFIC PROBLEM.
S. 1480'S APPROACH JEOPARDIZES EARLY PASSAGE OF NECESSARY LEGISLATION TO
RESOLVE THE PROBLEM OF ORPHAN SITES. THERE IS NO BASIS FOR REOPENING
THE CLEAN AIR AND WATER ACTS AND OTHER ENVIRONMENTAL AND HEALTH
LEGISLATION WHEN MORE SIMPLE AND DIRECT SOLUTIONS EXIST.
FIRST, THE BILL UNJUSTIFIABLY PROHIBITS THE RELEASE OF ANY HAZARDOUS
SUBSTANCE IN THE ENVIRONMENT THEREBY REPLACING THE PRESENT AND
WELL-ESTABLISHED SYSTEM OF REGULATING THESE SUBSTANCES ON THE BASIS OF
TECHNOLOGY, ENDANGERING PUBLIC HEALTH, AND ENVIRONMENT. THERE IS A
SYSTEM WE HAVE DEVELOPED OVER THE LAST 9 YEARS IN THE AIR AND WATER ACT
AND IN JUST ABOUT EVERY OTHER ENVIRONMENTAL HEALTH AND SAFETY ACT THAT
WE CAN THINK OF. THERE IS NO LEGISLATIVE RECORD OR ANY -ASIS TO SUPPORT
A NEED FOR THIS SWEEPING RELEASE CONCEPT THAT CONSTITUTES AN ABSOLUTE
FLAT PROHIBITION AGAINST ANY RELEASE. IT IS A FUNDAMENTAL DEPARTURE
FROM PREVIOUS LEGISLATIVE PRINCIPLES. IT WILL CONFLICT WITH, ABUSE, AND
DUPLICATE MUCH OF THE ENVIRONMENTAL LEGISLATION NOW ON THE BOOKS AND, IN
OUR TESTIMONY, WE HAVE DETAILED A LEGAL MEMO EXPLAINING THIS.
STATEMENTS
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 004 OF 25
FREIDMAN F MANAGER, OCCUPATIONAL AND ENVIRONMENTAL PROTECTION
KAMLET K DIRECTOR, TOXIC AND HAZARDOUS WASTE SECTION
DAVIES C D MANAGER, CLAIMS
HOGAN R TRIAL LAWYER
SWAN D VICE PRESIDENT, ENVIRONMENTAL AFFAIRS
ATLANTIC RICHFIELD CO
CHEMICAL MANUFACTURERS ASSOCIATION
NATIONAL WILDLIFE FEDERATION
KEYSTONE SHIPPING CO PHILADELPHIA
AMERICAN INSTITUTE OF MERCHANT SHIPPING
AMERICAN TRIAL LAWYERS ASSOCIATION
KENNECOTT COPPER CORP
THE AMERICAN MINING CONGRESS
104641
HEARING
TRANSCRIPT
SENATE
THE ALL-ENCOMPASSING PROHIBITION ON THE RELEASE OR DISPOSAL OF ANY
HAZARDOUS SUBSTANCE WOULD HAVE THE INEVITABLE EFFECT OF OVERTURNING THE
ENTIRE BASIS OF EXISTING ENVIRONMENTAL LEGISLATION AND REGULATIONS.
PROHIBITION CUTS ACROSS THE GAMMUT OF ENVIRONMENTAL HEALTH AND SAFETY
STATUTES. CLEAN WATER ACT, CLEAN AIR ACT, OSHA, RCRA, FIFRA. YOU NAME
IT, IT IS ALL COVERED. THESE LAWS PRESENTLY PLACE THE SPECIFIC LIMITS
UPON RELEASES INTO THE ENVIRONMENT BASED UPON A CAREFUL ASSESSMENT OF
THE DANGER TO THE PUBLIC HEALTH AND WELFARE, THE AVAILABILITY OF CONTROL
TECHNOLOGY AND OTHER FACTORS. THIS BILL WILL REPEAL LIMITS ON EMISSIONS
AND DISCHARGES THAT EPA HAS FOUND TO BE ADEQUATE TO PROTECT PUBLIC
HEALTH AND WELFARE. IT WILL MEAN THAT BILLIONS OF DOLLARS INVESTED BY
INDUSTRY TO COMPLY WITH EXISTING REQUIREMENTS WILL HAVE BEEN WASTED. IT
WOULD ALOS RENDER UNLAWFUL THAT CONDUCT WHICH IS NOW EXPRESSLY PERMITTED
UNDER FEDERAL AND STATE PROGRAMS, UNDER ALL OF THE ACTS THAT I
HAVEMENTIONED. THE BLANKET PROHIBITION ON ANY RELEASE PROVIDES NO SAFE
HARBOR FOR EXISTING STATUTORY SCHEMES. FOR EXAMPLE, RELEASES OF ANY
HAZARDOUS SUBSTANCE IN COMPLIANCE WITH VALID FEDERAL AND STATE WATER AND
AIR PERMITS WOULD STILL SUBJECT DISCHARGERS TO UNLIMITED STRICT
LIABILITY WITHOUT FAULT. YOU WOULD BE SUBJECT TO THIS KIND OF STRICT
UNLIMITED LIABILITY WITHOUT FAULT.
ABANDONED DISCHARGE OF ANY HAZARDOUS SUBSTANCE, FOR EXAMPLE, WOULD BE
INCONSISTENT WITH THE STATUTORY SCHEME UNDER THE CLEAN WATER ACT. IT
WOULD MEAN THAT VIRTUALLY ALL OF THE EXPENDITURES IN THE POLLUTION
CONTROL WOULD HAVE BEEN WASTED. ONE EXAMPLE EXEMPLIFIES THIS
INCONSISTENCY. LAST YEAR CONGRESS AND THIS COMMITTEE AMENDED THE CLEAN
WATER ACT, SECTION 311, TO NARROW THE DEFINITION OF DISCHARGE
SPECIFICALLY TO EXCLUDE FROM SECTION 311 PROHIBITION THOSE DISCHARGES OF
HAZARDOUS SUBSTANCES PURSUANT TO A FEDERAL NPDES PERMIT. S. 1480'S BROAD
SWEEP WOULD NOW PROHIBIT THE SAME PERMITTED DISCHARGES AND CONTRADICT
THE 1978 AMENDMENTS TO SECTION 311. IN ESSENCE, THIS LANGUAGE REJECTS
THE CAREFULLY DEVELOPED COMPROMISE JUST RECENTLY APPROVED BY THIS
COMMITTEE.
THE RELEASE CONCEPT SHOULD NOT MOVE FORWARD AT ALL WITHOUT EXTENSIVE
REVIEW OF ITS IMPACT IN RELATIONSHIP WITH ALL THE OTHER ACTS WHICH WOULD
BE AFFECTED. INDEED, THER WAS NO JUSTIFICATION FOR REOPENING THE CLEAN
AIR ACT, CLEAN WATER ACT, RCRA, FIFRA, OSHA, ALL THE OTHER STATUTES, IN
ORDER TO ADDRESS THIS ORPHAN SITE PROBLEM. IT IS A MEAT AXE APPROACH.
INSTEAD, AS WE ADVOCATED IN THE JULY COMMENTS, THE FOCUS OF THE
LEGISLATION SHOULD BE NARROWED TO SOLVE THE PROBLEM NOT ADDRESSED BY
EXISTING LAW, ORPHAN DUMPSITES. LET'S ALSO LOOK AT THE TOXIC PROVISIONS
OF THIS BILL.
SENATOR CHAFEE. MR. FRIEDMAN, YOU HAVE QUITE A LONG STATEMENT, WHICH
IS AN INTERESTING ONE, WHICH WE WI-L REVIEW. IF YOU COULD EXCERPT IT AS
YOU GO ALONG, IT WOULD CERTAINLY BE HELPFUL.
MR. FRIEDMAN. LET ME SUMMARIZE IT. THE RECORD DOESNOT INDICATE THAT
STATE TORT LAWS ARE UNWORKABLE OR COULD NOT BE ADAPTED TO SOLVE ANY
PROBLEM WHICH MAY BE DEVELOPED. WE SHOULDN'T THROW OUT 200 YEARS OF
TORT LAW. LET'S SEE IF THE SYSTEM WORKS. IT MAY NEED SOME CHANGES, BUT
NOT THIS KIND OF CHANGE. THE JOINT AND SEVERAL LIABILITY FOR ALL
CONSEQUENCES OF A PRODUCT IN ITS DISTRIBUTION, WE BELIEVE, IN
UNWARRANTED. I DO WANT TO SPEND A MINUTE ON THIS POINT, BECAUSE I THINK
IT IS SIGNFICANT.
STATEMENTS
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 005 OF 25
FREIDMAN F MANAGER, OCCUPATIONAL AND ENVIRONMENTAL PROTECTION
KAMLET K DIRECTOR, TOXIC AND HAZARDOUS WASTE SECTION
DAVIES C D MANAGER, CLAIMS
HOGAN R TRIAL LAWYER
SWAN D VICE PRESIDENT, ENVIRONMENTAL AFFAIRS
ATLANTIC RICHFIELD CO
CHEMICAL MANUFACTURERS ASSOCIATION
NATIONAL WILDLIFE FEDERATION
KEYSTONE SHIPPING CO PHILADELPHIA
AMERICAN INSTITUTE OF MERCHANT SHIPPING
AMERICAN TRIAL LAWYERS ASSOCIATION
KENNECOTT COPPER CORP
THE AMERICAN MINING CONGRESS
104642
HEARING
TRANSCRIPT
SENATE
AS YOU KNOW THE CONCEPT OF JOINT AND SEVERAL LIABILITY MAKES ONE
DEFENDANT PAY FOR THE WRONGS OF ALL OF THE DEFENDANTS REGARDLESS OF THE
RESPONSIBILITY.
I THINK IT ISMOST HELPFUL TO TAKE A LOOK AT WHAT THIS MEANS IN
CONTEXT. FOR EXAMPLE, IF YOU HAVE A COMPANY WITH EXTENSIVE ASSETS
RESPONSIBLE FOR DISPOSING ONE BARREL OF HAZARDOUS WASTE FROM A LEAKING
SITE, THAT COMPANY COULD BE LIABLE FOR ALL DAMAGES FROM 10,000 BARRELS
ON THE SAME SITE IF THE DISPOSERS OF THE OTHER BARRELS LACKED ASSETS AND
WERE JUDGMENT PROOF. I THINK IT IS HELPFUL, AND I AM GOING TO
SUMMARIZE, TO SEE HOW THIS TIES IN WITH THE RELEASE CONCEPT THAT I
MENTIONED PREVIOUSLY.
UNDER THE BILL THE ASSUMPTION IS IF YOU SHOULD HAVE KNOWN THERE WAS
GOING TO BE A RELEASE INTO THEENVIRONMENT BY YOUR DISPOSAL, BY SENDING
THIS MATERIAL TO AN UNAUTHORIZED SITE, YOU ARE AUTOMATICALLY JOINTLY AND
SEVERALLY LIABLE. BUT, AS I MENTIONED PREVIOUSLY, WHEN YOU DEAL WITH
THE CONCEPT RELEASE, RELEASE IS ANY RELEASE, REGARDLESS OF HAZARDS,
REGARDLESS OF TOXICITY, AND, UNDER MOST CIRCUMSTANCES, YOU ARE GOING TO
HAVE A RELEASE. THE QUESTION IS WHETHER IT IS DANGEROUS. THAT IS WHERE
THE CONCEPT FAILS. WHEN YOU TIE TOGETHER THE RELEASE CONCEPT, NAMELY
EVERYTHING ISPROHIBITED. IT YOU TIE THAT TOGETHER WITH JOINT AND
SEVERAL LIABILITY, THAT MEANS THAT IF YOU HAVE GOT ONE BARREL, YOU ARE
RESPONSIBLE FOR 10,000. YOU LOOK AT THE BROAD-BASED DAMAGES INVOLVED
OVER HERE, THEN YOU FINALLY TIE THAT TOGETHER WITH THE BROAD UNLIMITED
LIABILITY. IT IS BASICALLY A BLANK CHECK APPROACH. IT BASICALLY
OVERTURN ALMOST ALL TORT LAWS THAT OCVER THESE AREAS.
MANY TORT LAWS HAVE SOME OF THESEPROVISIONS, BUT NONE ARE
PARTICULARLY TIED WITH THE CONCEPT OF CAUSATION AS IT IS IN THIS BILL
WHICH BASICALLY THROWS OUT ALL CAUSATION AS WE KNOW IT. IT SUMMARY, WE
ARE SUGGESTING THAT WE GO BACK TO WHAT WE ARE REALLY INTERESTED IN,
CLEANING UP ABANDONED WASTE SITES, DEALING WITH THE SPECIFIC PROBLEMS.
WE SUGGEST THAT THIS SHOULD BE DONE WITH FEDERAL AND STATE FUNDING AND
WITH PRIVATE FUNDING IN THE SENSE OF WHATEVER PENALTIES MAY BE INVOLVED.
WE THANK YOU AGAIN FOR THE TIME TO PRESENT THIS CHEMICAL INDUSTRY
POSITION. WE LOOK FORWARD TO WORKING WITH YOUR COMMITTEE OVER THE
COMING MONTHS TO TRY TO COME UP WITH A SOLUTION THAT DOES WORK TO DEAL
WITH THESE ISSUES AND I WOULD BE HAPPY TO ANSWER ANY QUESTIONS.
SENATOR CHAFEE. THANK YOU VERY MUCH. I WILL POINT OUT THE CONCERNS
THAT YOU HAVE AND WE WILL HAVE A CHANGE TO GO INTO THOSE WITH THE PANEL,
PARTICULARLY WE WOULD BE GLAD TO HEAR WHAT MR. HOGAN SAYS ABOUT SOME OF
THE POINT YOU HAVE MADE.
NOW, LET'S HEAR FROM MR. KENNETH KAMLET, WHO IS THE DIRECTOR OF TOXIC
AND HAZARDOUS WASTE SECTION OF THE NATIONAL WILDLIFE FEDERATION.
MR. KAMLET. THANK YOU, SENATOR CHAFEE. FOR PURPOSES OF MY ORAL
STATEMENT. I WOULD LIKE TO FOCUS ON A HANDFUL OF ISSUES OF PARTICULAR
CONCERN TO THE NATIONAL WILDLIFE FEDERATION.
OF MAJOR IMPORTANCE TO US, WHICH IS FAIRLY OBVIOUS, ARE THE
PROVISIONS OF THE COMMITTEE BILL RELATING TO LIABILITY AND COMPENSATION
FOR LOSSES TO NATURAL RESOURCES INCLUDING FISH AND WILDLIFE. WE
STRONGLY FAVOR COVERAGE OF NATURAL RESOURCE IMPACTS WITHIN THE SCOPE OF
SUPERFUND LEGISLATION.
STATEMENTS
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 006 OF 25
FREIDMAN F MANAGER, OCCUPATIONAL AND ENVIRONMENTAL PROTECTION
KAMLET K DIRECTOR, TOXIC AND HAZARDOUS WASTE SECTION
DAVIES C D MANAGER, CLAIMS
HOGAN R TRIAL LAWYER
SWAN D VICE PRESIDENT, ENVIRONMENTAL AFFAIRS
ATLANTIC RICHFIELD CO
CHEMICAL MANUFACTURERS ASSOCIATION
NATIONAL WILDLIFE FEDERATION
KEYSTONE SHIPPING CO PHILADELPHIA
AMERICAN INSTITUTE OF MERCHANT SHIPPING
AMERICAN TRIAL LAWYERS ASSOCIATION
KENNECOTT COPPER CORP
THE AMERICAN MINING CONGRESS
104643
HEARING
TRANSCRIPT
SENATE
WE COMMEND THE SUBCOMMITTEES FOR THEIR WISDOM OF INCLUDING SUCH
RESOURCES IN S. 1480. THIS IS ONE OF A NUMBER OF IMPORTANT RESPECTS IN
WHICH WE VIEW THE COMMITTEE BILL AS SUPERIOR TO THAT SPONSORED BY THE
ADMINISTRATION.
A LIABILITY AND COMPENSATION SYSTEM EXTENDING TO NATURAL RESOURCE
DAMAGES IS IN OUR VIEW AS MUCH IN THE NATIONAL INTEREST AS ONE
ENCOMPASSING PERSONAL INJURY AND EMERGENCY CONTAINMENT AND CLEANUP OF
SPILLS. BY VIRTUALLY ANY CRITERION, OIL AND HAZARDOUS SUBSTANCES SPILLS
HAVE BEEN HAVING AN ENORMOUS, AND IN MANY CASES, GROWING IMPACT ON THE
COUNTRY'S LIVING NATURAL RESOURCES AND ON THEIR NONLIVING HABITAT.
FOR EXAMPLE, ALTHOUGH CONTROLS ON MUNICIPAL AND INDUSTRIAL DISCHARGES
UNDER CLEAN WATER ACT PERMIT PROGRAMS HAVE IMPROVED THE QUALITY OF MANY
U.S. LAKES AND RIVERS, WE ARE ALL AWARE OF MANY PORT AND HARBOR AREAS ON
EVERY COASTLINE IN THE COUNTRY WHICH HAVE BEEN SO HEAVILY IMPACTED BY
OIL AND HAZARDOUS SUBSTANCE SPILLS THAT THEY ARE ESSENTIALLY DEVOID OF
AQUATIC LIFE WITH THE POSSIBLE EXCEPTION OF SLUDGE WORMS. NEW YORK
HARBOR, THE HOUSTON SHIP CHANNEL, BALTIMORE HARBOR, AND COUNTLESS OTHER
FALL IN THIS CATEGORY. THIS IS OF DIRECT SIGNFIICANCE TO MAN, ON BOTH
ECONOMIC AND HEALTH GROUNDS.
IT IS VERY SERIOUS ECONOMIC PROBLEM IN TERMS OF LOST TOURISM AND
RECREATIONAL OPPORTUNITIES AS WELL AS IN TERMS OF LOSS OF COMMERCIAL
FISH AND SHELLFISH RESOURCES. IT IS A POTENTIAL HUMAN HEALTH PROBLEM IN
TERMS OF THE INCREASED RISKS OF CONSUMING CONTAMINATED SEAFOOD.
DATA COMPILED BY THE ENVIRONMENTAL PROTECTION AGENCY ON REPORTED
POLLUTION-RELATED FISH KILLS INDICATES THAT MANY TENS OF MILLIONS OF
FISH ARE KILLED EACH YEAR IN THE UNITED STATES AS A DIRECT RESULT OF
POLLUTANT RELEASES BY MUNICIPAL, INDUSTRIAL, AND AGRICULTURAL SOURCES.
MANY MILLIONS OF ADDITIONAL FISH KILLS DOUBTLESS OCCUR T-AT GO
UNREPORTED. ANY LARGE NUMBERS OF FISH EXPOSED TO OIL AND HAZARDOUS
SUBSTANCE SPILLS ARE LIKELY INCAPACITATED AND CONTAMINATED WITHOUT BEING
KILLED OUTRIGHT AS A RESULT OF SUCH RELEASES.
IN CONNECTION WITH OIL SPILL EFFECTS, MAJOR INDIVIDUAL INCIDENTS SUCH
AS THE SANTA BARBARA, AMOCO CADIZ AND PEMEX SPILLS, CAN CAUSE WIDESPREAD
ECOLOGICAL DEVASTATION. IN THE AFTERMATH OF THE AMOCO CADIZ SPILL FOR
EXAMPLE, 150 KILOMETERS OF COASTLINE SUSTAINED ADVERSE BIOLOGICAL
IMPACTS. A LONG A SINGLE 2 1/2 KILOMETER STRETCH OF BEACH, SEVERAL
MILLION DEAD MOLLUSKS AND SEA URCHINS WERE COUNTED ON ONE OCCASION, 16
DAYS AFTER THE SPILL TOOK PLACE. OVER 3,200 DEATHS OF MARINE BIRDS WERE
ALSO RECORDED INCLDUING MAJOR LOSSES TO THREE RARE OR ENDANGERED
SPECIES. ADDITIONAL CHRONIC EFFECTS ON MARINE BIRDS FROM FEEDING ON
CONTAMINATED PREY PROBABLY ALSO OCCURRED.
WITH RESPECT TO HAZARDOUS SUBSTANCES, THE MAGNITUDE OF THE POTENTIAL
IMPACTS OF FISH AND WILDLIFE AND THEIR HABITAT CAN PERHAPS BE BEST
APPRECIATED BY COMPARING SOME OF THE STATES RICHEST IN ECOLOGICALLY
IMPORTANT WETLANDS WITH A LISTING OF THE MAJOR HAZARDOUS
WASTE-GENERATING STATES. AMONG THE STATES HIGH ON BOTH LISTS ARE
CALIFORNIA, TEXAS, LOUISIANA, FLORIDA, WISCONSIN, AND GEORGIA.
MOREOVER, A RECENTLY COMPLETED NWF SURVEY OF STATE TOXIC SUBSTANCES
PROGRAMS INDICATES THAT OF THE SIX LISTED STATES ALL BUT CALIFORNIA AND
FLORIDA RANKED IN THE BOTTOM HALF OF THE SURVEYED STATES.
STATEMENTS
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 007 OF 25
FREIDMAN F MANAGER, OCCUPATIONAL AND ENVIRONMENTAL PROTECTION
KAMLET K DIRECTOR, TOXIC AND HAZARDOUS WASTE SECTION
DAVIES C D MANAGER, CLAIMS
HOGAN R TRIAL LAWYER
SWAN D VICE PRESIDENT, ENVIRONMENTAL AFFAIRS
ATLANTIC RICHFIELD CO
CHEMICAL MANUFACTURERS ASSOCIATION
NATIONAL WILDLIFE FEDERATION
KEYSTONE SHIPPING CO PHILADELPHIA
AMERICAN INSTITUTE OF MERCHANT SHIPPING
AMERICAN TRIAL LAWYERS ASSOCIATION
KENNECOTT COPPER CORP
THE AMERICAN MINING CONGRESS
104644
HEARING
TRANSCRIPT
SENATE
ON THE OTHER HAND, 2 OF THE 6 RANKED IN THE BOTTOM 10 WITH ONE OF
THEM, GEORGIA, COMING IN DEAD LAST.
THIS SUGGESTS A COUPLE OF THINGS TO US. IT INDICATES THAT HAZARDOUS
CHEMICAL-HANDLING ACTIVITIES IN THE UNITED STATES TEND TO BE LARGELY
CONCENTRATED IN AREAS WHICH ARE AMONG THE MOST ECOMOLIGALLY SENSITIVE
AND PRODUCTIVE THIS NATION HAS TO OFFER. AND, IT INDICATES THAT
EXISTING STATE REGULATORY PROGRAMS IN THESE AREAS TEND NOT ONLY TO BE
INADEQUATE BUT TO GENERALLY BE EVEN LESS ADEQUATE THAN TH PROGRAMS
ESTABLISHED IN OTHER STATES. STATES WHICH GENERATE LESS HAZARDOUS
MATERIAL AND HAVE LESS POTENTIAL FOR IMPACTING CRITICAL WILDLIFE
HABITAT. THE CONCLUSION IS INESCAPABLE, THAT WITHOUT ADDITIONAL
REGULATORY EFFORTS, MAJOR WETLAND AND WILDLIFE IMPACTS DUE TO HAZARDOUS
SUBSTANCE RELEASES ARE UNAVOIDABLE.
IN SHORT, THE NATIONAL WILDLIFE FEDERATION IS PERSUADED THAT THERE IS
AN URGENT NEED FOR LIABILITY AND COMPENSATION LEGISLATION WHICH
ENCOMPASSES NATURAL RESOURCE DAMAGES.
BUT, WHILE WE SUPPORT THE THRUST AND INTENT OF THE PROVISIONS OF S.
1480 DEALING WITH NATURAL RESOURCE DAMAGES, THERE ARE FIVE SIGNIFICANT
RESPECT IN WHICH WE BELIEVE THESE PROVISIONS CAN AND SHOULD BE
STRENGTHENED:
FIRST, WE THINK IT IS IMPORTANT THAT THE LEGISLATION AUTHORIZE
CITIZEN SUITS, AS DO SO MANY OF THE FEDERAL STATUTES ENACTED WITHIN THE
LAST DECADE, SO THAT INTERESTED AND AFFECTED CITIZENS CAN INITIATE
NATURAL RESOURCE DAMAGE RECOVERY ACTIONS ON THEIR OWN WHERE THE STATES
DO NOT ADEQUATELY DISCHARGE THEIR TRUSTEESHIP RESPONSIBILITIES UNDER
SECTION 4(C) OF THE COMMITTEE BILL.
SECOND, WE RECOMMEND THAT SECTION 4(C) BE MODIFIED TO EXTEND ITS
COMMONSENSE APPROACH ON THE CAUSALITY QUESTION TO INJURIES TO NATURAL
RESOURCES. THE SAME LOGIC THAT SUPPORTS THE USE OF STATISTICAL EVIDENCE
TO DEMONSTRATE CAUSALITY WHERE PERSONAL INJURY IS INVOLVED, APPLIES
EQUALLY TO INJURIES SUSTAINED BY FISH AND WILDLIFE AND THEIR HABITAT.
THIRD, WE BELIEVE SECTION 6(E)(1)(A) SHOULD BE EXPANDED TO SPECIFY AN
INTERIM DAMAGE ASSESSMENT MECHANISM WHICH CAN BE USED DURING THE PERIOD
OF 2 YEARS OR MORE, THAT WILL BE REQUIRED TO PROMULGATE AND IMPLEMENT
THE DAMAGE ASSESSMENT REGULATIONS CALLED FOR IN THIS PROVISION.
SPECIFICALLY, WE RECOMMEND THAT THE COMMITTEE CONSIDER ADOPTING A
FURTHER PROVISION WITHIN SECTION 6(E) WHICH WOULD ENABLE STATE OFFICIALS
AND THE PRESIDENT TO TAKE ACTION UNDER SECTION 4(B) TO RECOVER DAMAGES
FOR INJURY TO NATURAL RESOURCES, WITHIN THE INTERVAL PRIOR TO FORMAL
PROMULGATION OF DAMAGE ASSESSMENT REGULATIONS, BASED ON THE USE OF ANY
DAMAGE ASSESSMENT EVALUATION APPROACH AVAILABLE OR IN USE UNDER THE
STATUTORY OR COMMON LAW OF ANY OF THE SEVERAL STATES.
AN NWF SURVEY OF THE FISH AND WILDLIFE AGENCIES AND THE ATTORNEY
GENERAL OFFICES OF ALL 50 STATES INDICATES, FOR EXAMPLE, THAT THE
LEGISLATURES OF AT LEAST 29 STATES HAVE ENACTED STATUTES SPECIFICALLY
AUTHORIZING THE STATE FISH AND WILDLIFE AGENCY TO RECOVER COMPENSATORY
DAMAGES FOR THE DESTRUCTION OF WILDLIFE.
WHAT WE PROPOSE, IN OTHER WORDS, IS THAT THE CONGRESS ADOPT FOR
FEDERAL LAW PURPOSES ON AN INTERIM BASIS THE ESTABLISHED STATE LAW
APPROACHES FOR ASSESSING NATURAL RESOURCE DAMAGES. THIS WOULD ALLOW,
FOR EXAMPLE, FEDERAL PROSECUTORS IN GEORGIA, TO TAKE ACTION IN FEDERAL
COURT TO RECOVER DAMAGES FOR INJURIES TO NATURAL RESOURCES IN THAT STATE
ON THE BASIS OF VALUATION APPROACHES FOR FISH AS ESTABLISHED IN
PENNSYLVANIA, FOR WATERFOWL AS ESTABLISHED IN MARYLAND, AND FOR OTHER
WILDLIFE AS ESTABLISHED IN MICHIGAN, TO GIVE SOME HYPOTHETICAL EXAMPLES.
STATEMENTS
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 008 OF 25
FREIDMAN F MANAGER, OCCUPATIONAL AND ENVIRONMENTAL PROTECTION
KAMLET K DIRECTOR, TOXIC AND HAZARDOUS WASTE SECTION
DAVIES C D MANAGER, CLAIMS
HOGAN R TRIAL LAWYER
SWAN D VICE PRESIDENT, ENVIRONMENTAL AFFAIRS
ATLANTIC RICHFIELD CO
CHEMICAL MANUFACTURERS ASSOCIATION
NATIONAL WILDLIFE FEDERATION
KEYSTONE SHIPPING CO PHILADELPHIA
AMERICAN INSTITUTE OF MERCHANT SHIPPING
AMERICAN TRIAL LAWYERS ASSOCIATION
KENNECOTT COPPER CORP
THE AMERICAN MINING CONGRESS
104645
HEARING
TRANSCRIPT
SENATE
AS SOON AS FINAL FEDERAL DAMAGE ASSESSMENT REGULATIONS WERE IN PL-CE,
SUCH REGULATIONS WOULD THEREAFTER SUPERSEDE, AND REPLACE ANY STATE
APPROACHES UTILIZED IN THE INTERIM PERIOD.
THE FOURTH MODIFICATION WHICH WE BELIEVE IS DESIRABLE, IS THE
ESTABLISHMENT OF A STATUTORY LIQUIDATED DAMAGES FEE SCHEDULE FRAMEWORK
TO BE USED IN MAKING DAMAGE ASSESSMENTS WHERE MORE REFINED DAMAGE
ASSESSMENT REGULATIONS ARE LACKING OR ARE INCOMPLETE. THE LIQUIDATED
DAMAGES APPROACH HAS BEEN IN USE FOR MANY YEARS, AS REFLECTED IN LAWS
ESTABLISHING CIVIL OR CRIMINAL FINES FOR THE ILLEGAL TAKING OF FISH AND
WILDLIFE,SUCH AS FINES FOR POACHING, SHOOTING SONGBIRDS, AND FOR
SHOOTING GAME BIRDS OUT OF SEASON. THE MAJOR DIFFERENCE BETWEEN THE USE
OF LIQUIDATED DAMAGES AND REPLACEMENT COSTS IS THAT THE AMOUNT OF THE
FORMER BEARS NO NECESSARY RELATION TO EITHERTHE COST OF REPLACING THE
ANIMALS IN QUESTION OR THEIR ECONOMIC VALUE. INSTEAD, THE PRIMARY
PURPOSE OF THE FINE IS TO DETER THE TAKING OF FISH AND WILDLIFE EXCEPT
AT THE TIME AND IN THE MANNER PERMITTED BY LAW. WE RECOMMEND THAT THE
COMMITTEE CONSIDER INCORPORATING OR REFERENCING IN THE BILL A LIQUIDATED
DAMAGES SCHEDULE, OF THE SORT SUGGESTED ONPAGE 20 OF MY PREPARED
STATEMENT, AS A MEANS OF ESTABLISHING A MINIMUM OR PRIMA FACIE VALUE FOR
AT LEAST SOME SPECIES WHILE PERMITTING AND ENCOURAGING FEDERAL AND STATE
REGULATION WRITERS, AND EVEN THE AFFECTED INDUSTRIES, TO TRY TO
ESTABLISH BETTER VALUES IF THEY CHOOSE.
OUR FINAL RECOMMENDATION IN CONNECTION WITH THE NATURAL RESOURCE
DAMAGE ASSESSMENT PROVISIONS OF THE COMMITTEE BILL IS THAT THELANGUAGE
OF SECTION 6(E)(1)(B) BE CLARIFIED TO REQUIRE DAMAGE ASSESSMENTS TO BE
BASED ON THE DEGREE OF HARM DONE, AT LEAST WHERE SIGNIFICANT ECOLOGICAL
DAMAGE HAS OCCURRED, AND TO ALLOW SO-CALLED SIMPLIFIED ASSESSMENTS BASED
ON THE SIZE OF THE RELEASE OR OF THE AFFECTED AREA TO BE USED ONLY WHERE
THE EXTENT OF THE ECOLOGICAL DAMAGE IS LIKELY TO BE SMALL OR DIFFICULT
TO ESTABLISH. OTHERWISE, LARGE SPILLS, WHICH CAUSE LITTLE DAMAGE MAY
GENERATE LARGER ASSESSMENTSS THAN SMALLER SPILLS IN SENSITIVE AREAS
WHICH MAY CAUSE FAR GREATER DAMAGE.
WITH RESPECT TO THE MORE GENERAL ASPECTS OF THE COMMITTEE AND
ADMINISTRATION BILLS, I WOULD LIKE TO BRIEFLY HIGHLIGHT FOUR POINTS.
FIRST, STRICT LIABILITY STANDARDS OF THE SORT FOUND IN SECTION 4 OF S.
1480 AND SECTION 604 OF S. 1341 HAVE A LONG AND HONORABLE HISTORY IN
ANGLO-AMERICAN TORT LAW, AND ARE NOT, AS SOME INDUSTRY REPRESENTATIVES
HAVE CONTENDED A RADICAL INVENTION OF SUBVERSIVES INTENT UPON TOPPLING
THE CONSTITUTION OR THE FREE ENTERPRISE SYSTEM.
FOR EXAMPLE, THE MID 19TH CENTURY ENGLISH CASE OF RYLANDS V. FLETCHER
HELD A DAM BUILDER STRICTLY LIABLE FOR DAMAGE CAUSED BY THE RESULTING
RESERVOIR TO AN OPERATING COAL MINE DUE TO SEEPAGE THROUGH ABANDONED
MINE SHAFTS, ALTHOUGH THE DAM BUILDER HAD NOT REASON TO SUSPECT THAT THE
OLD MINE SHAFTS LED INTO AN OPERATING MINE.
STATEMENTS
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 009 OF 25
FREIDMAN F MANAGER, OCCUPATIONAL AND ENVIRONMENTAL PROTECTION
KAMLET K DIRECTOR, TOXIC AND HAZARDOUS WASTE SECTION
DAVIES C D MANAGER, CLAIMS
HOGAN R TRIAL LAWYER
SWAN D VICE PRESIDENT, ENVIRONMENTAL AFFAIRS
ATLANTIC RICHFIELD CO
CHEMICAL MANUFACTURERS ASSOCIATION
NATIONAL WILDLIFE FEDERATION
KEYSTONE SHIPPING CO PHILADELPHIA
AMERICAN INSTITUTE OF MERCHANT SHIPPING
AMERICAN TRIAL LAWYERS ASSOCIATION
KENNECOTT COPPER CORP
THE AMERICAN MINING CONGRESS
104646
HEARING
TRANSCRIPT
SENATE
IN DOING SO, MR. JUSTICE BLACKBURN ENUNCIATED A RULE SUBSEQUENTLY
FOLLOWED IN MANY AMERICAN JURISDICTIONS WHICH CLOSELY RESEMBLES THAT
FOUND IN THE PRESENT BILLS. THE LEARNED JUSTICE MADE THE FOLLOWING
OBSERVATION:
IT SEEMS BUT REASONABLE AND JUST THAT THE NEIGHBOR WHO HAS BROUGHT
SOMETHING ON HIS OWN PROPERTY WHICH WAS NOT NATURALLY THERE, HARMLESS TO
OTHERS SO LONG AS IT IS CONFINED TO HIS OWN PROPERTY, BUT WHICH HE KNOWS
TO BE MISCHIEVOUS IF IT GETS ON HIS NEIGHBOR'S SHOULD BE OBLIGED TO MAKE
GOOD THE DAMAGE WHICH ENSUES IF HE DOES NOT SUCCEED IN CONFINING IT OT
HIS OWN PROPERTY. BUT FOR HIS ACT IN BRINGING IT THERE NO MISCHIEF
COULD HAVE ACCRUED, AND IT SEEMS BUT JUST THAT HE SHOULD AT HIS PERIL
KEEP IT THERE, SO THAT NO MISCHIEF MAY ACCRUE, OR ANSWER FOR THE NATURAL
AND ANTICIPATED CONSEQUENCES. AND UPON AUTHORITY, THIS WE THINK IS
ESTABLISHED TO BE THE LAW, WHETHER THE THING SO BROUGHT BE BEASTS, OR
WATER, OR FILTH, OR STENCHES.
APPLYING THIS RULE AS A MATTER OF FEDERAL LAW TO HANDLERS OF
HAZARDOUS SUBSTANCES IS BUT A NATURAL AND NECESSARY USE OF AN
ESTABLISHED LEGAL DOCTRINE.
OUR SECOND GENERAL POINT CONCERNS THE PROBLEM OF DESIGNING AN
EQUITABLE BUT MANAGEABLE SYSTEM FOR GENERATING A COMPENSATION AND
EMERGENCY RESPONSE FUND LARGE ENOUG TO MEET ALL OF THE DEMANDS MADE UPON
IT. IN THEORY, AT LEAST, IT SEEMS TO US THAT THE OPTIMUM APPROACH WOULD
INVOLVE AN ACTUARIAL ASSESSMENT OF RISKS. WITH PREMIUMS FOR EACH
HAZARDOUS SUBSTANCE GENERATOR, HANDLER, AND DISPOSER, BASED UPON SUCH
ASSESSMENTS FOR THE PARTICULAR ACTIVITY INVOLVED. THIS IS THE APPROACH
TAKEN BY THE PRIVATE INSURANCE INDUSTRY IN INSURING AGAINST RISKS
ASSOCIATED WITH MORE CONVENTIONAL ACTIVITIES.
APPARENTLY, A MAJOR FACTOR KEEPING THE PRIVATE INSURANCE INDUSTRY OUT
OF A MORE ESTENSIVE ROLE IN HAZARDOUS SUBSTANCES ACTIVITIES AND IN
ASSOCIATED LIABILITY AND COMPENSATION SCHEMES IS THE LACK OF SUFFICIENT
ACTUARIAL EXPERIENCE WITH THE ATTENDANT RISKS AND THE CONSEQUENT
RELUCTANCE OF INSURERS TO ASSUME LIABILITY FOR POTENTIALLY CATASTROPHIC
DISASTERS WITH LARGE, AND GENERALLY UNKNOWN PRICE TAGS.
THE COMMITTEE MAY WISH TO CONSIDER AS A MEANS OF ATTRACTING MORE
ACTIVE INSURANCE INDUSTRY INVOLVEMENT, THE CREATION OF A FEDERAL ROLE IN
GUARANTEEING PAYMENT OF CLAIMS BEYOND THOSE RISKS BARGAINED FOR BY THE
INSURERS OF FIRST RESORT.
THE ADVANTAGES TO SUCH A PRIVATE INSURANCE SCHEME, APART FROM
MINIMIZING THE MAJOR FEDERAL ROLE INHERENT IN ANY TRUST FUND APPROACH,
INCLUDE: (A) A MORE EQUITABLE ALLOCATION OF THE ASSESSMENT BURDEN
THROUGHOUT THE HAZARDOUS SUBSTANCES INDUSTRY BASED UPON IMPARTIAL
ACTUARIAL COMPUTATIONS; (B) ADJUSTMENT OF PREMIUMS TO REWARD
CONSCIENTIOUS EFFORTS TO MINIMIZE RISKS AND TO PENALIZE UNDULY RISKY
ACTIVITIES; AND (C) THE ALLEVIATION OF QUALMS BY THE HAZARDOUS
SUBSTANCES INDUSTRY, AND PERHAPS LEGAL CONCERNS AS WELL, REGARDING THE
UNKNOWNS ASSOCIATED WITH A NEW GOVERNMENT-RUN TRUST FUND.
THE NATIONAL WILDLIFE FEDERATION IS NOT NECESSARILY ADVOCATING SUCH A
PRIVATE INTEREST APPROACH AT THIS TIME. WE SIMPLY RAISE IT AS A
MECHANISM WHICH MAY HAVE SOME MERIT AND WHICH THE COMMITTEE MAY WISH TO
EXPLORE FURTHER.
OUR THIRD GENERAL POINT IS THAT SINCE OIL SPILLS CAN BE JUST AS
DAMAGING TO NATURAL RESOURCES AND PROPERTY AS HAZARDOUS SUBSTANCE
SPILLS, THERE SEEMS LITTLE, IF ANY, BASIS ON THE MERITS FOR EXCLUDING
OIL FROM THE COVERAGE OF S. 1480. ACCORDINGLY, WE STRONGLY URGE THE
COMMITTEE TO CONSIDER BROADENING THE BILL'S SCOPE TO ENCOMPASS OIL.
STATEMENTS
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 010 OF 25
FREIDMAN F MANAGER, OCCUPATIONAL AND ENVIRONMENTAL PROTECTION
KAMLET K DIRECTOR, TOXIC AND HAZARDOUS WASTE SECTION
DAVIES C D MANAGER, CLAIMS
HOGAN R TRIAL LAWYER
SWAN D VICE PRESIDENT, ENVIRONMENTAL AFFAIRS
ATLANTIC RICHFIELD CO
CHEMICAL MANUFACTURERS ASSOCIATION
NATIONAL WILDLIFE FEDERATION
KEYSTONE SHIPPING CO PHILADELPHIA
AMERICAN INSTITUTE OF MERCHANT SHIPPING
AMERICAN TRIAL LAWYERS ASSOCIATION
KENNECOTT COPPER CORP
THE AMERICAN MINING CONGRESS
104647
HEARING
TRANSCRIPT
SENATE
BLANK PAGE OMITTED.
STATEMENTS
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 011 OF 25
FREIDMAN F MANAGER, OCCUPATIONAL AND ENVIRONMENTAL PROTECTION
KAMLET K DIRECTOR, TOXIC AND HAZARDOUS WASTE SECTION
DAVIES C D MANAGER, CLAIMS
HOGAN R TRIAL LAWYER
SWAN D VICE PRESIDENT, ENVIRONMENTAL AFFAIRS
ATLANTIC RICHFIELD CO
CHEMICAL MANUFACTURERS ASSOCIATION
NATIONAL WILDLIFE FEDERATION
KEYSTONE SHIPPING CO PHILADELPHIA
AMERICAN INSTITUTE OF MERCHANT SHIPPING
AMERICAN TRIAL LAWYERS ASSOCIATION
KENNECOTT COPPER CORP
THE AMERICAN MINING CONGRESS
104648
HEARING
TRANSCRIPT
SENATE
AND OUR FOURTH POINT SENATOR CHAFEE. YOU HAVE LOST ME. WHAT PAGE ARE
YOU ON?
MR. KAMLET. AND OUR FOURTH POINT. SENATOR, WHICH RELATES TO THE
FINANCIAL RESPONSIBILITY AND LIABILITY PROVISIONS OF THE COMMITTEE AND
ADMINISTRATION BILLS, IS THAT THE REQUIREMENTS APPLICABLE TO OFFSHORE
FACIALITIES SHOULD BE REWRITTEN TO MAKE CLEAR THAT A U.S. OWNER,
MANUFACTURER, OR OPERATOR OF AN OFFSHORE OIL RIG OR HAZARDOUS SUBSTANCE
FACILITY CANNOT ESCAPE FINANCIAL RESPONSIBILITY FOR SUBSEQUENT SPILLS
WHICH EFFECT U.S. PROPERTY AND RESOURCES MERELY BECAUSE SUCH FACILITIES
WERE LEASED TO A FOREIGN GOVERNMENT AND MAY HAVE BEEN UTILIZED IN
INTERNATIONAL WATERS. WHERE DEFECTIVE U.S. MANUFACTURED EQUIPMENT OR
NEGLIGENT U.S. OPERATORS CAUSE OR CONTRIBUTE TO A DAMAGING SPILL, ANY
SUPERFUND LEGISLATION THAT IS ADOPTED SHOULD, IN OUR VIEW, HOLD THE
RESPONSIBLE COMPANIES ACCOUNTABLE.
I SHOULD POINT OUT THAT THE SITUATION I DESCRIBED IS NOT TOTALLY
HYPOTHETICAL. IN FACT, THE RECENT PEMEX OIL SPILL, WHICH NOW
JEOPARDIZES MUCH OF THE U.S. GULF COAST, INVOLVED AN OIL RIG OWNED BY A
U.S. COMPANY AND LEASED TO MEXICO FOR 3 YEARS. IF IT IS ULTIMATELY
DETERMINED THAT EQUIPMENT FAILURES PLAYED A ROLE IN THE BLOWOUT THAT
OCCURRED, IT SEEMS VERY UNLIKELY THAT EITHER CURRENT LAW OR EITHER OF
THE PENDING BILLS WOULD ALLOW RECOVER OF RESULTANT DAMAGES CAUSED TO
U.S. CITIZENS AND RESOURCES. WE HOPE THE CO-MITTEE WILL PLUG THIS
LOOPHOLE.
IN CONCLUSION, WE GREATLY APPRECIATE THIS OPPORTUNITY TO PRESENT OUR
VIEWS ON THIS IMPORTANT AND MUCH NEEDED LEGISLATION AND WE COMMEND THE
TWO SUBCOMMITTEES AND THEIR CHAIRMEN FOR THEIR GOOD WORK IN DEVELOPING
SUPERFUND LEGISLATION IN WHICH ALL AMERICANS CAN TAKE PRIDE AND COMFORT.
THANK YOU.
SENATOR CHAFEE. THANK YOU VERY MUCH, MR. KAMLET. IT IT OBVIOUS THAT
THERE IS NOT UNANIMITY OF THE VIEWS OF NINE WITNESSES THIS MORNING.
NOW WE WILL LOOK FORWARD TO AN EXCHANGE AS WE GET INTO THE NEXT PART.
CAPTAIN DAVIES WHO IS CLAIMS MANAGER OF KEYSTONE SHIPPING CO. IN
PHILADELPHIA, WHO ALSO REPRESENTS THE AMERICAN INSTITUTE OF MERCHANT
SHIPPING. CAPTAIN DAVIES?
MR. DAVIES. THANK YOU, SENATOR. MY NAME IS C.D. DAVIES, CLAIMS
MANAGER OF KEYSTEON SHIPPING CO. WE OPERATE A FLEET OF 24 AMERICAN-FLAG
MERCHANT VESSELS AGGREGATING NEARLY A MILLION AND A HALF DEADWEIGHT
TONS. ABOUT ONE-FOURTH OF THIS DEADWEIGHT IS COMPOSED OF CHEMICAL
CARRIERS WHICH CARRY A NUMBER OF CARGOS OFFICIALLY DESIGNATED AS
HAZARDOUS. ON BEHALF OF MY COMPANY AND AS A MEMBER OF THE AMERICAN
INSTITUTE OF MERCHANT SHIPPING, OTHERWISE KNOWN AS AIMS, THE ASSOCIATION
OF AMERICAN-FLAG OCEANGOING VESSEL OWNERS TO WHICH WE BELONG, I WELCOME
THIS OPPORTUNITY TO TESTIFY ON LIABILITY ISSUES ASSOCIATED WITH WATER
TRANSPORTATION OF HAZARDOUS CARGO.
PLEASE NOTE THAT THIS TESTIMONY DOES NOT ADDRESS THE DISPOSAL OF
HAZARDOUS WASTES WHICH WE CONSIDER TO BE A SEPARATE MATTER AND ONE IN
WHICH WE ARE NOT EXPERT.
STATEMENTS
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 012 OF 25
FREIDMAN F MANAGER, OCCUPATIONAL AND ENVIRONMENTAL PROTECTION
KAMLET K DIRECTOR, TOXIC AND HAZARDOUS WASTE SECTION
DAVIES C D MANAGER, CLAIMS
HOGAN R TRIAL LAWYER
SWAN D VICE PRESIDENT, ENVIRONMENTAL AFFAIRS
ATLANTIC RICHFIELD CO
CHEMICAL MANUFACTURERS ASSOCIATION
NATIONAL WILDLIFE FEDERATION
KEYSTONE SHIPPING CO PHILADELPHIA
AMERICAN INSTITUTE OF MERCHANT SHIPPING
AMERICAN TRIAL LAWYERS ASSOCIATION
KENNECOTT COPPER CORP
THE AMERICAN MINING CONGRESS
104649
HEARING
TRANSCRIPT
SENATE
FULLY AWARE OF THE PERILS OF THE SEA WHICH CAN BRING ABOUT FINANCIAL
RUIN, SHIPOWNERS HAVE BEEN IN THE FOREFRONT OF BUSINESSES SEEKING
INSURANCE. THANKS TO THE FACT THAT VIRTUALLY ALL TRADING NATIONS DEAL
WITH VESSEL LIABILITY UNDER NATIONAL LAWS ALLOWING LIMITATION, WE HAVE
GENERALLY BEEN SUCCESSFUL IN OBTAINING ADEQUATE INSURANCE TO COVER CREW
CLAIMS, HULLS AND OTHER DAMAGES, SUCH AS DOCK DAMAGE AND CARGO CLAIMS
AND POLLUTION.
THIS COVERAGE IS EXPENSIVE, EVEN THROUGH NONPROFIT MUTUAL INDEMNITY
ASSOCIATIONS, AMOUNTING TO AN AVERAGE OF ABOUT 5 PERCENT OF OPERATING
EXPENSES OF A STEAMSHIP COMPANY, ACCORDING TO MARITIME ADMINISTRATION
STATISTICS.
THE SHIPPING INDUSTRY IS QUITE ANXIOUS TO CONTINUE ITS CAPACILITY TO
MEET DAMAGE CLAIMS WHICH MAY FOLLOW A VESSEL ACCIDENT. IF CONGRESS
DECIDES THAT THE COMMON LAW SYSTEM IS NOT ADEQUATE FOR SPILLS OF
HAZARDOUS SUBSTANCES AND WISHES TO IMPOSE A STRICTER SYSTEM, WE ASK
SIMPLY THAT ANY NEW LEGISLATION BALANCE SOCIETY'S WISH FOR EXPEDITIOUS
DAMAGE COMPENSATION WITH ITS NEED FOR ASSURED ECONOMICAL WATER
TRANSPORTATION.
IN VIEW OF THE FACT THAT THE STRICT LIABILITY FOR HAZARDOUS
SUBSTANCES CLEANUP COSTS ADDED TO THE FEDERAL WATER POLLUTION CONTROL
ACT IN 1972 IS NOT DUE TO TAKE EFFECT FOR ANOTHER MONTH, WE HAVE VERY
LITTLE INFORMATION ON WHICH TO BASE NEW LEGISLATION. EXPERIENCE WITH
OIL POLLUTION LIABILITY MAY OFFER SOME GUIDANCE.
DUE TO THE SUDDEN ENLARGED DEMANDS ON MARINE OIL POLLUTION INSURANCE
WHICH FOLLOWED THE TORREY CANYON ACCIDENT IN 1967, INSURANCE WAS SO
RESTRICTED THAT AN ARRANGEMENT HAD TO BE DEVISED WHEREBY OIL CARGO
INTERESTS SUPPLEMENTED THE COMMERCIAL INSURANCE AVAILABLE TO SHIPOWNERS.
THIS SYSTEM IS NOW IN EFFECT INTERNATIONALLY ANDH.R. 85, THE OIL
POLLUTION SUPERFUND BILL, WAS BUILT UPON IT.
THAT LEGISLATION, WHICH HAS BEEN STRONGLY SUPPORTED BY OUR COMPANY
AND AIMS SINCE ITS ORIGINAL INTRODUCTION IN 1975 ATTEMPTS TO BRING ORDER
TO A CHAOTIC MAZE OF OIL POLLUTION LIABILITY LAWS AND THUS FACILITATE
THE GROWTH OF INSURANCE. IF THE PROLIFERATION OF LIABILITY LAWS WHICH
PROVOKED THE OIL POLLUTION INSURANCE AVAILABILITY PROBLEM CAN BE
AVOIDED, WE ARE OPTIMISTIC THAT THE RPIVATE SECTOR CAN HANDLE DAMAGE
CLAIMS ARISING FROM VESSEL ACCIDENTS INVOLVING HAZARDOUS SUBSTANCES
WITHOUT RESORT TO A TRUST FUND ADMINISTERED BY EXPENSIVE BUREAUCRACY.
THE KEYS TO WORKABLE LEGISLATION WHICH BALANCES THE INTERESTS
INVOLVED ARE: ONE, RESPONSIBILITY PLACED ON THE PERSON CAUSING PROVEN
DAMAGE, WITH DEFENSES FOR FORCES OUTSIDE HIS CONTROL; TWO, ADEQUATE BUT
INSURABLE LIMITS ON LIABILITY.
SENATOR CHAFEE. CAPTAIN, YOU HAVE LOST ME A BIT HERE. AS I
UNDERSTAND IT, YOUR ORGANIZATION SUPPORTS THE SUPERFUND BILL, THAT IS,
H.R. 85. THISSYSTEM IS NOW IN EFFECT AND SERVES AS A MODEL FOR H.R. 85,
THE OIL POLLUTION SUPERFUND BILL, THAT LEGISLATION WHICH HAS BEEN
STRONGLY SUPPORTED BY AIMS. SO YOU DO SUPPORT THAT.
MR. DAVIES. YES.
SENATOR CHAFEE. THAT IS THE OIL SUPERFUND?
MR. DAVIES. RIGHT.
SENATOR CHAFEE. BUT NOW YOU SAY:
WE ARE OPTIMISTIC THAT THE PRIVATE SECTOR CAN HANDLE DAMAGE CLAIMS
ARISING FROM VESSEL ACCIDENTS INVOLVING HAZARDOUS SUBSTANCES WITHOUT
RESOTRING TO A TRUST FUND ADMINISTERED BY AN EXPENSIVE BUREAUCRACY.
STATEMENTS
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 013 OF 25
FREIDMAN F MANAGER, OCCUPATIONAL AND ENVIRONMENTAL PROTECTION
KAMLET K DIRECTOR, TOXIC AND HAZARDOUS WASTE SECTION
DAVIES C D MANAGER, CLAIMS
HOGAN R TRIAL LAWYER
SWAN D VICE PRESIDENT, ENVIRONMENTAL AFFAIRS
ATLANTIC RICHFIELD CO
CHEMICAL MANUFACTURERS ASSOCIATION
NATIONAL WILDLIFE FEDERATION
KEYSTONE SHIPPING CO PHILADELPHIA
AMERICAN INSTITUTE OF MERCHANT SHIPPING
AMERICAN TRIAL LAWYERS ASSOCIATION
KENNECOTT COPPER CORP
THE AMERICAN MINING CONGRESS
104650
HEARING
TRANSCRIPT
SENATE
THERE, YOU ARE SAYING ON THE HAZARDOUS WASTE DON'T HAVE A SUPERFUND
OF SOME TYPE, IS THAT THE WAY I GET IT?
MR. DAVIES. I BELIEVE THAT THE INDUSTRY CAN HANDLE THIS MATTER
THROUGH ARRANGEMENTS SIMILAR TO TOVALOP AND CRISTAL.
SENATOR CHAFEE. SIMILAR TO WHAT?
MR. DAVIES. TOVLOP AND CRISTAL.
SENATOR CHAFEE. I DIDN'T GET THAT WORD. WAHT IS IT?
MR. DAVIES. TOVALOP. TANKER OWNERS VOLUNTARY
SENATOR CHAFEE. TOVALOP.
MR. DAVIES (CONTINUING). AGREEMENT ON LIABILITY FOR OIL POLLUTION.
SENATOR CHAFEE. WELL, I LEARNED SOMETHING TODAY.
MR. DAVIES. IT'S A MUTUAL INSURANCE FUND.
SENATOR CHAFEE. OF SHIPPING OWNERS.
MR. DAVIES. OF SHIPOWNERS.
SENATOR CHAFEE. OK, NOW WHAT -- GO AHEAD.
MR. DAVIES. OVER THE LIMITS OF TOVALOP WE HAVE THE CARGO-OWNERS WHO
HAVE A SIMILAR MUTUAL ARRANGEMENT. THESE MEET THE REQUIREMENTS OF THE
INTERNATIONAL CONVENTIONS.
SENATOR CHAFEE. I SEE. WELL, NOW, IF YOU HAD YOUR CHOICE, WOULD YOU
USE THAT FOR THE OIL POLLUTION SITUATION, AS WELL?
MR. DAVIES. WHAT, FOR THE HAZARDOUS SUBSTANCE SITUATION?
SENATOR CHAFEE. AS I UNDERSTAND, YOU DON'T USE THAT SYSTEM FOR THE
OIL POLLUTION SITUATION.
MR. DAVIES. WE DO USE IT FOR OIL POLLUTION.
SENATOR CHAFEE. YOU DO? BUT I THOUGHT YOU SAID YOU APPROVED H.R.
85, WHICH DOES HAVE AN OIL POLLUTION SUPERFUND.
MR. DAVIES. BUT THAT BILL HAS LIMITS ON LIABILITY AND PREEMPTION, AND
WE CAN MEET ITS REQUIREMENTS THROUGH OUR INSURANCE.
SENATOR CHAFEE. OK. ALL RIGHT; FINE.
WOULD YOU CONTINUE, PLEASE.
MR. DAVIES. THREE, A HIGH LEVEL OF CERTAINTY -- ONE OF THE KEY
CONCEPTS INVOLVED IN A HIGH LEVEL OF CERTAINTY THROUGH A CLEARLY UNIFORM
FEDERAL LAW WHICH PREEMPTS STATE LAWS. REVIEWING THE COMMITTEE BILL S.
1480, WE FIND IT MEETS NONE OF THESE CRITERIA.
FIRST, THE STANDARDS OF CAUSATION AND PROOF HAVE BEEN RELAXED TO THE
POINT WHERE THESE BASIC LEGAL PRINCIPLES DO NOT HAVE TO BE MET FOR
COMPENSATION TO BE TRIGGERED. S. 1480'S SPECIAL NEW LEGAL RULES FOR
CLAIMANTS UNABLE TO SHOW WHO CAUSED THEIR INJURY OR TO PROVE DAMAGE TO
THE NATURAL RESOURCES DO NOT BELONG IN A LIABILITY SYSTEM FOR ACCIDENTAL
SPILLS.
EVEN IF THIS WERE A FEDERAL AID PROGRAM, I DOUBT THAT THE PUBLIC
WOULD WANT TO SEE CLAIMS PAID IN THIS WAY. WE HAVE LEARNED THAT THERE
IS NO SUCH THING AS A FREE LUNCH; EITHER THE TAXPAYER OR THE CONSUMER
PAYS.
FOR EXAMPLE, THE PROVISIONS OF SECTION 4(C) OF THE BILL VIRTUALLY
ELIMINATE THE REQUIREMENTS OF PROVING CAUSATION WITH RESPECT TO CLAIMS
FOR PERSONAL INJURY. THIS IS NOT ONLY A DENIAL OF CONSTITUTIONAL DUE
PROCESS OF LAW, BUT COULD RESULT IN NUMEROUS UNJUST CLAIMS AGAINST A
SHIPOWNER BY PARTIES WHO ARE LOOKING FOR SOMEONE TO SUE FOR A VARIETY OF
ILLNESSES. THE RESULTING IMPACT UPON THE SHIPOWNER IN ADDED INSURANCE
COSTS IS OBVIOUS AND COULD AFFECT HIS CONTINUED ABILITY TO REMAIN IN
BUSINESS.
STATEMENTS
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 014 OF 25
FREIDMAN F MANAGER, OCCUPATIONAL AND ENVIRONMENTAL PROTECTION
KAMLET K DIRECTOR, TOXIC AND HAZARDOUS WASTE SECTION
DAVIES C D MANAGER, CLAIMS
HOGAN R TRIAL LAWYER
SWAN D VICE PRESIDENT, ENVIRONMENTAL AFFAIRS
ATLANTIC RICHFIELD CO
CHEMICAL MANUFACTURERS ASSOCIATION
NATIONAL WILDLIFE FEDERATION
KEYSTONE SHIPPING CO PHILADELPHIA
AMERICAN INSTITUTE OF MERCHANT SHIPPING
AMERICAN TRIAL LAWYERS ASSOCIATION
KENNECOTT COPPER CORP
THE AMERICAN MINING CONGRESS
104651
HEARING
TRANSCRIPT
SENATE
SECOND, THERE ARE NO LIMITS OF LIABILITY UNDER THE BILL. UNDER A
"NO-FAULT" SYSTEM OF LIABILITY THE RESPONSIBLE PARTY MUST, AT LEAST,
HAVE SOME REASONABLE LIMIT TO HIS LIABILITY WHICH CAN BE INSURED.
UNDER THE PROPOSED BILL, A SHIPOWNER IS NOT EVEN PROTECTED AGAINST
LIABILITY RESULTING FROM THE ACTS OF A THIRD PARTY OR FROM VANDALISM OR
SABOTAGE. IF AVAILABLE INSURANCE COVERAGE IS LESS THAN LIABILITY
EXPOSURE, AS PROVIDED IN S. 1480, THEN PARTICIPATION IN THE MARKETPLACE
MAY BE RESTRICTED TO THOSE BUSINESSES WHICH CAN AFFORD TO SELF-INSURE
THE EXCESS RISKS. WE BELIEVE THAT, AFTER CAREFUL ANALYSIS, INSURABLE
LIABILITY LIMITS CAN BE ESTABLISHED AS LEVELS WHICH WILL PROVIDE
ADEQUATE COMPENSATION.
FINALLY, S' 1480 FAILS TO PREEMPT STATE LAWS. THE PROVISIONS OF THIS
BILL WOULD PROTECT EVERY INTEREST, WHETHER PUBLIC OR PRIVATE, WHICH
MIGHT HAVE A CLAIM AS A RESULT OF A DISCHARGE, AND FURTHER PROTECTION IN
THE FORM OF INCONSISTET STATE LAWS IS NOT REQUIRED.
PROLIFERATION OF LAWS ACTUALLY DECREASES THE AMOUNT OF INSURANCE
COVERAGE AVAILABLE, AS WE HAVE SEEN IN THE OIL POLLUTION AREA, AND THE
RESULTING CONFUSION ALSO DECREASES THE LIKELIHOOD OF PROMPT, PRIVATE
SECTOR RESPONSE TO CLAIMS.
IN THE MARITIME AREA, PREEMPTION IS ESSENTIAL BECAUSE OF THE MULTIPLE
JURISDICTIONS LIKELY TO BE AFFECTED BY A VESSEL ACCIDENT. WITHOUT
CONSOLIDATION OF CLAIMS, WHICH IS EXPEDITED BY PREEMPTION, IT IS NOT
POSSIBLE TO ASSURE EQUITABLE DISTRIBUTION OF AVAILABLE FUNDS.
PREEMPTION OS STATE LIABILITY LAWS IN NO WAY DETRACTS FROM THE PROPER
ROLE OF THE STATES IN PROTECTING THEIR CITIZENS.
WHILE CLEANUP IS BEST DONE BY THESPILLER OR HIS PROVATE CONTRACTOR,
LEGITIMATE STATE-INCURRED CLEANUP COSTS CAN BE COVERED LIKE OTHER CLAIMS
UNDER A FEDERAL LIABILITY REGINE. ALTERNATIVELY, STATES CAN WORK OUT
COOPERATIVE AGREEMENTS UNDER WHICH THEY ACT AS AGENTS OF THE FEDERAL
GOVERNMENT.
UNDULY HIGH LIABILITY LEVELS DO NOT SERVE AS INCENTIVES TO SAFETY,
AND THEY CANNOT BE USED TO PREVENT VESSEL ACCIDENTS. ALLOWING DIVERSE
OR DUPLICATIVE STATE LIABILITY LAWS PROVIDES NO ADDITIONAL PROTECTION
THAN THAT PROVIDED BY A CLEAR, STRONG FEDERAL LAW, BUT PROLIFERATION
DOES INCREASE ADMINISTRATIVE AND CONSUMER COSTS TO THE DETRIMENT OF
COMMERCE AND THE PUBLIC.
SINCE WE DO NOT YET HAVE THE BENEFIT OF THE STUDY ON HAZARDOUS
SUBSTANCES LIABILITY MANDATED BY PUBLIC LAW 95-576, WE BELIEVE ENACTMENT
OF ADDITIONAL LEGISLATION AT THIS TIME WOULD BE INAPPROPRIATE. AS IT
SAID EARLIER, WE ARE OPTIMISTIC THAT WITH A SOUND DATA BASE TO DETERMINE
THE DIMENSIONS OF TE PROBLEM, THE PRIVATE SECTOR WILL BE ABLE TO HANDLE
HAZARDOUS SUBSTANCES SPILLS WITHOUT RESORT TO A TRUST FUND. AND
EXPENSIVE BUREAUCRACY TO ADMINISTER IT.
THANK YOU.
SENATOR CHAFEE. WELL, THANK YOU VERY MUCH, CAPTAIN. WE APPRECIATE
YOUR TESTIMONY.
NOW, WE'LL HEAR FROM MR. HOGAN, WHO IS A TRIAL LAWYER, BIRMINGHAM,
ALA., REPRESENTING THE AMERICAN TRIAL LAWYERS ASSOCIATION.
MR. HOGAN, WE WELCOME YOU.
MR. HOGAN. THANK YOU. THANK YOU, SENATOR.
LADIES AND GENTLEMEN, I MIGHT SAY AT THE OUTSET THAT I HAVE NOT BEEN
FORMALLY APPOINTED TO REPRESENT THE TRIAL LAWYERS ASSOCIATION, BECAUSE
THAT REQUIRES APPROVAL OF THE BOARD OF GOVERNORS, SO PERHAPS I CAN BE
CONSIDERED HERE AS A PRIVATE ATTORNEY OF SOME EXPERIENCE IN POLLUTION
CASES AND ALSO SOME BACKGROUND IN ENVIRONMENTAL LAW.
STATEMENTS
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 015 OF 25
FREIDMAN F MANAGER, OCCUPATIONAL AND ENVIRONMENTAL PROTECTION
KAMLET K DIRECTOR, TOXIC AND HAZARDOUS WASTE SECTION
DAVIES C D MANAGER, CLAIMS
HOGAN R TRIAL LAWYER
SWAN D VICE PRESIDENT, ENVIRONMENTAL AFFAIRS
ATLANTIC RICHFIELD CO
CHEMICAL MANUFACTURERS ASSOCIATION
NATIONAL WILDLIFE FEDERATION
KEYSTONE SHIPPING CO PHILADELPHIA
AMERICAN INSTITUTE OF MERCHANT SHIPPING
AMERICAN TRIAL LAWYERS ASSOCIATION
KENNECOTT COPPER CORP
THE AMERICAN MINING CONGRESS
104652
HEARING
TRANSCRIPT
SENATE
IN THE FIRST PLACE, I WOULD LIKE TO GIVE YOU AN EXAMPLE OF A CASE
THAT I HAD
SENATOR CHAFEE. DID YOU SUBMIT A STATEMENT?
MR. HOGAN. NO, SIR, I DID NOT.
SENATOR CHAFEE. I UNDERSTAND YOU WERE CALLED ON SHORT NOTICE, IS
THAT IT?
MR. HOGAN. THAT IS RIGHT.
SENATOR CHAFEE. IS THE PRESIDENT OF THE TRIAL LAWYERS ASSOCIATION,
OR WHOEVER WAS COMING -- WAS ILL SO YOU ARE PINCH-HITTING FOR HIM?
MR. HOGAN. THAT IS CORRECT.
SENATOR CHAFEE. WE ARE GLAD YOU CAME ON SUCH SHORT NOTICE. WHY
DON'T YOU PROCEED?
MR. HOGAN. I FILED A SUIT IN 1970 UNDER WHAT IS THE RIVER AND HARBOR
ACT. I'M SURE YOU RECALL, SENATOR, THAT WE HAD A RASH OF SUITS BACK AT
THAT TIME. WE HAD 19 RIPARIAN OWNERS, PROPERTY, ON TRIBUTARIES AND ON
THE WARRIOR RIVER THAT HAD BEEN POLLUTED BY -- CORRECTION -- 80 THAT HAD
BEEN POLLUTED BY 17 INDUSTRIES. OVER A PERIOD OF MONTHS, WE COLLECTED
SAMPLES FROM OUTFALLS AND WE COLLECTED THEM BY HAVING STUDENTS GO OUT
AND SYSTEMATICALLY HAVING THEM TEST IT FROM EVERY SORT OF POLLUTER;
UNITED STATES STEEL, FROM ELECTROPLATING TO CHEMICAL PLANTS TO SULFURIC
ACIDS TO -- YOU NAME IT, WE HAD AN EXAMPLE OF THAT SORT OF A POLLUTER.
THIS, UNFORTUNATELY, UNDER THE RIVERS AND HARBORS ACT, OUR
DISTINGUISHED DISTRICT JUDGE SUSTAINED THE MOTIONS TO DISMISS AND THEY
WERE TAKEN UP -- THESE CASES WERE TAKEN TO THE COURT OF APPEALS AND
ULTIMATELY TO THE SUPREME COURT OF THE UNITED STATES WHERE, BY 5-TO-1
DECISION, THE LOWER COURT WAS UPHELD.
THERE WAS EVERY SORT OF POLLUTER INVOLVED IN THAT CASE, JUST ABOUT.
THEY CONTINUED TO POLLUTE. WHY? BECAUSE WE COULD NOT FIND A SUCCESSFUL
VEHICLE UNDER THE COMMON LAW, UNDER NUISANCE LAW, THAT WOULD ADEQUATELY
PROTECT THESE INDIVIDUALS. YOUR LEGISLATION, I THINK, WILL GO A LONG
WAY TOWARD THAT. THESE PEOPLE NEED TO BE PROTECTED. SOMETHING NEEDS TO
BE DONE ABOUT THIS SITUATION, BECAUSE I THINK WE CAN ONLY LOOK AT THE
HISTORY OF THE MATTER OF HANDLING WASTE -- OF ATOMIC WASTE, OF NUCLEAR
WASTE AND WHAT HAPPENED THERE.
WE CREATED WITH BILLIONS OF DOLLARS A GREAT SYSTEM OF MAKING POWER,
AND A LOT OF POWER WAS MADE, BUT THEY HAVE NOT UNTIL THIS DAY DISCOVERED
AN ADEQUATE SYSTEM OF DISPOSAL OF THE WASTES FROM THE NUCLEAR PLANTS.
NOW, YOUTH POINTS THEIR FINGER AT US FOR THAT, AND WITH
JUSTIFICATION. IT IS LIKE BUILDING A HOUSE WITHOUT ANY PLUMBING FOR IT,
OR EVEN A SATISFACTORY LOCATION FOR AN OUTHOUSE, DECIDED UPON IN
ADVANCE.
NOW, THE WAY I SEE IT, THIS IS TRUE. THIS LEGISLATION MAY WORK
HARDSHIPS, BUT IT'S NEEDED. THE YOUTH OF OUR COUNTRY HAS A RIGHT TO
EXPECT FROM US, FROM ADULT MANUFACTURERS, AS WELL AS ADULT CITIZENS THAT
WHEN YOU BUILD A PRODUCT YOU WILL BE ABLE TO PREDICT HOW YOU ARE GOING
TO HANDLE IT, HOW IT WILL BE DISPOSED OF.
STATEMENTS
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 016 OF 25
FREIDMAN F MANAGER, OCCUPATIONAL AND ENVIRONMENTAL PROTECTION
KAMLET K DIRECTOR, TOXIC AND HAZARDOUS WASTE SECTION
DAVIES C D MANAGER, CLAIMS
HOGAN R TRIAL LAWYER
SWAN D VICE PRESIDENT, ENVIRONMENTAL AFFAIRS
ATLANTIC RICHFIELD CO
CHEMICAL MANUFACTURERS ASSOCIATION
NATIONAL WILDLIFE FEDERATION
KEYSTONE SHIPPING CO PHILADELPHIA
AMERICAN INSTITUTE OF MERCHANT SHIPPING
AMERICAN TRIAL LAWYERS ASSOCIATION
KENNECOTT COPPER CORP
THE AMERICAN MINING CONGRESS
104653
HEARING
TRANSCRIPT
SENATE
IF YOU CAN'T YOU OUGHT TO SUFFER THE CONSEQUENCES OF HAVING PRODUCED
IT WITHOUT HAVING MADE SUCH PREPARATIONS. I HAPPEN TO KNOW ABOUT THE
ATTITUDE OF YOUTH OF THIS COUNTRY, BECAUSE AS THE FIRST CHAIRMAN OF THE
ENVIRONMENTAL LAW SECTION OF THE AMERICAN TRIAL LAWYERS ASSOCIATION, I
STARTED WHAT'S CALLED AN ENVIRONMENTAL LAW ESSAY CONTEST. WE COVERED
JUST ABOUT EVERY ENVIRONMENTAL LAW AND POLLUTION QUESTION THAT YOU CAN
COVER IN THE PAST 10 YEARS. THIS IS THE 10TH YEAR OF THE CONTEXT, AND
THE QUALITY AND THE QUANTITY, PARTICULARLY, THE QUALITY OF THESE ESSAY
PAPERS WAS VERY HIGH THROUGHOUT, CONSISTENTLY. THEY ARE CONCERNED, AND
THEY HAVE A RIGHT TO BE CONCERNED ABOUT WHAT WE ARE, AND YOU, SENATOR,
AND THE OTHER SENATORS, WHO ARE IN THE POSITION TO HAVE RESPONSIBILITY
ARE DOING ABOUT TOMORROW'S CHILDREN AND GRANDCHILDREN.
THAT'S WHY THE HARDSHIPS, THE SEEMING HARDSHIPS OF THE BILL, IN MY
OPINION, MUST BE BORNE AND INDUSTRY, THE POLLUTERS, ARE THE ONES TO BEAR
THEM. IT'S TRUE THAT, MAYBE, THAT CERTAIN ASPECTS OF THE BURDENS OF
PROOF MAY BE HARSH; THEY MAY BE SUBJECT TO BEING AMENDED SOMEWHAT.
I, AS A PLAINTIFF LAWYER, ADMIT THAT THEY'RE RATHER HARSH UNDER THE
BURDENS OF PROOF OF THIS BILL ON THE DEFENDANTS. BUT HAVING BEEN ON THE
OTHER SIDE OF THE FENCE IN A NUMBER OF CASES, SOME SUCCESSFUL AND SOME
NOT, I THINK THAT ITS -- WE CAN RECOGNIZE THAT THEY'RE HARSH AND PERHAPS
AMEND IT TO THE BILL. IT CAN BE AMENDED, AND WE CAN DO SOMETHING ABOUT
THEM.
I WOULDLIKE TO JUST SIMPLY ADD THAT I FEEL LIKE OIL RELIEF ALSO
SHOULD BE ADDED. I UNDERSTAND THEY MAY HAVE SOME REASONS, PERHAPS IT
SHOULDN'T BE DISCUSSED, ABOUT WHY IT'S NOT ADDED TO THIS BILL. BUT AT
THE SAME TIME, IT JUST LOOKS LOGICAL TO ME THAT THE BILL SHOULD INCLUDE
OIL AS A SUBSTANCE TO BE COVERED.
I HAVE PROBLEMS WITH ONE ASPECT OF THE BILL FROM THE STANDPOINT OF A
LAWYER WHO REPRESENTS INJURED PARTIES.
SENATOR CHAFEE. REPRESENTS WHAT?
MR. HOGAN. I HAVE PROBLEMS WITH THE ASPECT OF THE BILL FROM THE
STANDPOINT OF A LAWYER W-O REPRESENTS INJURED PARTIES. THERE HAVE BEEN
REFERENCES MADE TO PERSONAL INJURY PROVISIONS OF THIS BILL. THE WAY I
READ THE BILL, AND LOOKING AT, UNDER SECTIONS 4(A)(2), PAGE 15 SAYS,
"ALL DAMAGES FOR ECONOMIC LOSS OR LOSS DUE TO PERSONAL INJURY OR LOSS
FOR NATURAL RESOURCES RESULTING FROM A DISCHARGE RELEASE OR DISPOSAL
INCLUDING" THEN IT SETS OUT SOME SUBPARTS.
IF JUDGE -- YOU WILL LOOK OVER TO SUBSECTION (F) IT SAYS, "ALL
OUT-OF-POCKET MEDICAL EXPENSES INCLUDING REHABILITATION OF COSTS DUE TO
PERSONAL INJURY."
NOW, IT SEEMS TO ME THAT WHEN I READ THAT IN CONNECTION WITH
SUBPARAGRAPH (C) ON PAGE 17, THAT THIS BILL IS CAPABLE OF INTERPRETING
THAT THE ONLY THING THAN AN INJURED PARTY WOULD BE COMPENSATED FOR WOULD
BE FOR MEDICAL EXPENSES AND REHABILITATION COSTS, THAT THOSE WOULD BE
THE ONLY THINGS THAT HE WOULD BE REIMBURSED FOR.
NOW, YOU HAVE A LOT OF PEOPLE WHO HAVE CATASTROPHIC INJURIES WHO HAVE
ECONOMIC LOSS, AND I WOULD RESPECTFULLY SUGGEST THATECONOMIC LOSS SHOULD
BE INCLUDED AS WELL AS MEDICAL AND REHABILITATION COSTS AS BEING
APPROPRIATE PARTS OF THE AREAS OF RECOVERY.
SENATOR CHAFEE. LOSS OF EARNINGS?
MR. HOGAN. LOSS OF EARNINGS; YES, SIR. OF COURSE, WE LAWYERS GO
INTO PAIN AND SUFFERING; I CAN UNDERSTAND WHERE IN THIS PARTICULAR BILL
YOU WOULD PERHAPS NOT WANT TO DO THAT, HOWEVER, IF THERE IS ANY TALK OF
THIS BILL BEING PREEMPTED, WHICH I DO NOT SEE THAT IT DOES, FRANKLY --
BUT IF IT IS GOING TO TRY TO PREEMPT THE AREAS OF COMPARABLE COVERAGE,
THEN, OF COURSE, SOMETHING MUST BE WORKED OUT ABOUT HOW THOSE PEOPLE ARE
GOING TO BE COMPENSATED FOR A PERMANENT PAIN AND SUFFERING, AS WELL AS A
DISABILITY AND DISFIGUREMENT.
STATEMENTS
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 017 OF 25
FREIDMAN F MANAGER, OCCUPATIONAL AND ENVIRONMENTAL PROTECTION
KAMLET K DIRECTOR, TOXIC AND HAZARDOUS WASTE SECTION
DAVIES C D MANAGER, CLAIMS
HOGAN R TRIAL LAWYER
SWAN D VICE PRESIDENT, ENVIRONMENTAL AFFAIRS
ATLANTIC RICHFIELD CO
CHEMICAL MANUFACTURERS ASSOCIATION
NATIONAL WILDLIFE FEDERATION
KEYSTONE SHIPPING CO PHILADELPHIA
AMERICAN INSTITUTE OF MERCHANT SHIPPING
AMERICAN TRIAL LAWYERS ASSOCIATION
KENNECOTT COPPER CORP
THE AMERICAN MINING CONGRESS
104654
HEARING
TRANSCRIPT
SENATE
I MENTION THOSE THINGS AS COMMENTS ABOUT THE BILL. I JUST DON'T WANT
TO OVER -- THAT'S ABOUT ALL I HAVE TO SAY EXCEPT THAT I APPRECIATE THE
OPPORTUNITY TO BE HERE, TO TAKE PART IN THE DISCUSSION WITH THESE
GENTLEME AND WITH YOU, SENATOR, AND THE OTHERS WHO ARE INTERESTED.
THANK YOU.
SENATOR CHAFEE. FINE. THANK YOU VERY MUCH, MR. HOGAN. AGAIN, WE
APPRECIATE YOUR COMING AND WE APPRECIATE YOUR COMING ON RATHER SHORT
NOTICE.
NOW, WE'LL HEAR FROM MR. DAVID SWAN, VICE PRESIDENT OF ENVIRONMENTAL
AFFAIRS OF KENNECOTT CORP., AND WHO REPRESENTS THE AMERICAN MINING
CONGRESS.
MR. SWAN. THANK YOU, MR. CHAIRMAN.
I'M APPEARING ON BEHALF OF THE AMERICAN MINING CONGRESS, AN INDUSTRY
TRADE ASSOCIATION COMPRISED OF OVER 500 COMPANIES WHICH INCLUDE THE
PRODUCERS OF MOST OF AMERICA'S METALS, COAL AND INDUSTRIAL AND
AGRICULTURAL MINERALS, THE MANUFACTURERS OF MINING AND MINERALS
PROCESSING MACHINERY AND EQUIPMENT AND SUPPLIES AND THE FINANCIAL
INSTITUTIONS WHICH SERVE THIS INDUSTRY.
WE APPRECIATE THE OPPORTUNITY TO COMMENT ON THE PROPOSALS BEFORE
SUBCOMMITTEES TO CLEAN UP OIL AND HAZARDOUS SUBSTANCE SPILLS AND TO DEAL
WITH THE PROBLEM OF ABANDONED HAZARDOUS WASTES.
WE CERTAINLY RECOGNIZE AND APPRECIATE THE GENUINE NEED FOR A PROGRAM
TO PROVIDE PROMPT AND EFFECTIVE CLEANUP OF HAZARDOUS WASTES IN THE
ENVIRONMENT, WHETHER THESE OCCUR THROUGH SPILLS, IMMEDIATE SPILLS, OR
INADEQUATE WASTE DISPOSAL PRACTICES, AND ALSO SUPPORT THE NEED TO
COMPENSATE PEOPLE WHO HAVE BEEN INJURED AS A RESULT OF THESE SPILLS.
HOWEVER, WE ARE PURSUADED THAT THE PROPOSALS BEFORE THE COMMITTEES DO
NOT REPRESENT THE PROPER APPROACH FOR ACCOMPLISHING THESE OBJECTIVES IN
SEVERAL IMPORTANT WAYS.
I WILL TREAT EACH OF THE PROPOSALS SEPARATELY.
THE ADMINISTRATION BILL, S. 1341, PROPOSES TO FINANCE THE COST OF
CLEANUP THROUGH FEES ON PRODUCERS OF CERTAIN HEAVY METALS, OIL, AND
FEEDSTOCK CHEMICALS. WE BELIEVE THIS APPROACH IS CONTRARY TO THE INTENT
OF THE RESOURCE CONSERVATION AND RECOVERY ACT, WHOSE THRUST IS TO REDUCE
THE PRODUCTION OF HAZARDOUS WASTES AND IS AN INCENTIVE TO NEUTRALIZE.
THE APPROACH OF PLACING A FEE ON THE PRODUCTION OF HEAVY METALS AND
SIMILAR MATERIALS REPRESENTS ADMINISTRATIVE SIMPLICITY, BUT THE RESULT,
OF COURSE, IS A LEVY OF UNEQUAL ECONOMIC BURDEN ON THE VARIOUS
INDUSTRIES CONCERNED.
THIS IS A PARTICULAR SIGNIFICANT TO THE MINING INDUSTRY. ONE OF THE
IRONIES OF THE ACT IS THAT, UNDER THE ADMINISTRATION PROPOSAL, SULFURIC
ACID, WHICH IS PRODUCED AS A DIRECT RESULT OF POLLUTION CONTROL
SPECIFICALLY AIR POLLUTION CONTROL IN THE PROCESSING OF COPPER AND LEAD,
IS ONE OF THE MATERIALS ON WHICH THE ADMINISTRATION PROPOSES TO LEVY A
TAX OF $2 A TON OR 2PERCENT OF SALES.
STATEMENTS
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 018 OF 25
FREIDMAN F MANAGER, OCCUPATIONAL AND ENVIRONMENTAL PROTECTION
KAMLET K DIRECTOR, TOXIC AND HAZARDOUS WASTE SECTION
DAVIES C D MANAGER, CLAIMS
HOGAN R TRIAL LAWYER
SWAN D VICE PRESIDENT, ENVIRONMENTAL AFFAIRS
ATLANTIC RICHFIELD CO
CHEMICAL MANUFACTURERS ASSOCIATION
NATIONAL WILDLIFE FEDERATION
KEYSTONE SHIPPING CO PHILADELPHIA
AMERICAN INSTITUTE OF MERCHANT SHIPPING
AMERICAN TRIAL LAWYERS ASSOCIATION
KENNECOTT COPPER CORP
THE AMERICAN MINING CONGRESS
104655
HEARING
TRANSCRIPT
SENATE
I MIGHT ADD THAT MANY OF THE LOCATIONS WHERE IT IS PRODUCED, ARE NOT
IN COMSUMING AREAS, AND THEREFORE THE ACID MUST BE DISPOSED OF AT A
LOSS.
SENATOR CHAFEE. HOW ABOUT ORIGINAL SALE?
MR. SWAN. THERE MAY BE A SALE, OR IF THERE IS NO SALE, THE ACID MUST
BE NEUTRALIZED AND DISCARDED AS A WASTE.
EPA HAS DEFINED THE BEST AVAILABLE CONTROL TECHNOLOGY FOR SO2 CONTROL
IN COPPER AND LEAD SMELTERS AS THE PRODUCTION OF SULFURIC ACID. YET THE
ADMINISTRATION BILL PROPOSES WOULD TAX THIS AS A HAZARDOUS SUBSTANCE.
S. 1480, AS PROPOSED BY THE MEMBERS OF THE ENVIRONMENTAL AND PUBLIC
WORKS COMMITTEE, PROPOSES TO FINANCE THE CLEANUP THROUGH A SUPERFUND.
THIS LEGISLATION WOULD COVER ALL TOXIC AND HAZARDOUS SUBSTANCES DEFINED
IN THE VARIOUS ENVIRONMENTAL ACTS, THE CLEAN AIR, CLEAN WATER, TOXIC
SU0STANCES, AND SOLID WASTE DISPOSAL ACTS. IT WOULD TAX THE MANUFACTURE
AND PRODUCTION OF TOXIC AND HAZARDOUS SUBSTANCES, RATHER THAN ON THE
WASTE STREAMS WHICH ENTER THEENVIRONMENT.
THE SUBCOMMITTEE, OF COURSE, WILL RECALL THE CONGRESS HAS CONSIDERED
THIS GENERAL APPROACH OF TAXING THE PRODUCTION OF POLLUTANTS IN THE PAST
AND HAS CONSISTENTLY REJECTED IT. IT HAS BEEN WIDELY DEBATED, BUT, SO
FAR, HAS BEEN REJECTED AS APPROPRIATE PUBLIC POLICY.
SENATOR CHAFEE. WELL, YOU KNOW, MR. SWAN, THAT THE REASON THAT WE
TOOK THE APPROACH WE DID, YOU RECOMMEND THAT THERE BE A TAX ON THE WASTE
STREAM ENTERING THE ENVIRONMENT. BUT IN ALL OF THESE YOU GET A BALANCE
BETWEEN WHAT IS DOABLE AND WHAT MIGHT BE MOST EQUITABLE. FOR US, THE
GOVERNMENT, TO COME AND IMPOSE A TAX ON EVERY HALF BARREL OF WHAT'S
COMING OUT OF EVERY CHEMICAL PLANT IN THE COUNTRY WOULD BE AN IMPOSSIBLE
TASK, WE BELIEVE.
MR. SWAN. THAT MIGHT WELL BE.
SENATOR CHAFEE. IN OTHER WORDS, YOUR SUGGESTION IS THAT IT BE A TAX
ON THE WASTE STREAM. BY THE WASTE STREAM, I ASSUME YOU MEAN THE
MATERIAL THAT IS MOVING OUT FOR THE FINAL DISPOSAL, TWO BARRELS THAT ARE
GOING ON THE TRUCK TO GO SOME PLACE TO BE DUMPED.
MR. SWAN. WELL, I WOULD NOT SAY THAT EITHER I OR THE MINING CONGRESS
SUPPORTS THE IDEA OF A TAX AT ALL. WE THINK IF ONE IS TO LEVIED IT
SHOULD BE, HOWEVER, ON THE WASTE STREAM.
AS I'LL GET INTO LATER ON IN MY TESTIMONY, WE REALLY DON'T THINK THIS
IS THE PROPER APPROACH AT ALL.
SENATOR CHAFEE. IF IT WILL GET YOU OVER THE HURDLE, BEING OPPOSED TO
ALL THE TAX, IT JUST SEEMS TO ME THAT -- WELL, I JUST WANT TO EXPLAIN
WHY WE TOOK THE APPROACH WE DID.
THE MECHANICS OF DOING IT OTHERWISE ARE IMPOSSIBLE, I BELIEVE.
MR. SWAN. WELL, I AGREE IT IS INAPPROPRIATE FOR US TO GET INTO A
DISCUSSION OF THIS, SENATOR, BUT THERE ARE OTHER COUNTRIES WHO HAVE
LEVIED TAXES ON EMISSIONS AND EFFLUENTS.
SENATOR CHAFEE. GO AHEAD.
MR. SWAN. THE FOCUS OF ATTENTION OF CONGRESS ON CLEANING UP THE
HAZARDOUS WASTES IN THE ENVIRONMENT HAS BEEN ON THE OIL AND CHEMICAL
INDUSTRIES, AND I WOULD LIKE TO ELABORATE ON SOME PROBLEMS ASSOCIATES
WITH THE MINING AND EXTRACTION OF METALS AND MINERALS, LARGELY BECAUSE
WE ARE A RELATIVELY SMALL INDUSTRY IN COMPARISON WITH THE OIL AND
CHEMICAL INDUSTRIES, BUT AN INDUSTRY WHICH PRODUCES VERY LARGE VOLUMES
OF WASTE SUBSTANCES BECAUSE OF THE NATURE OF MINERALS.
STATEMENTS
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 019 OF 25
FREIDMAN F MANAGER, OCCUPATIONAL AND ENVIRONMENTAL PROTECTION
KAMLET K DIRECTOR, TOXIC AND HAZARDOUS WASTE SECTION
DAVIES C D MANAGER, CLAIMS
HOGAN R TRIAL LAWYER
SWAN D VICE PRESIDENT, ENVIRONMENTAL AFFAIRS
ATLANTIC RICHFIELD CO
CHEMICAL MANUFACTURERS ASSOCIATION
NATIONAL WILDLIFE FEDERATION
KEYSTONE SHIPPING CO PHILADELPHIA
AMERICAN INSTITUTE OF MERCHANT SHIPPING
AMERICAN TRIAL LAWYERS ASSOCIATION
KENNECOTT COPPER CORP
THE AMERICAN MINING CONGRESS
104656
HEARING
TRANSCRIPT
SENATE
THERE WASTES ARE CHARACTERIZED BY NOT ONLY VERY LARGE VOLUME BUT A
RELATIVELY LOW TOXICITY, AND CONGRESS, IN ENACTING THE RESOURCE
CONSERVATION AND RECOVERY ACT RECOGNIZED THE UNIQUENESS OF MINING WASTES
AND PROVIDED FOR A STUDY OF THESE WASTES BEFORE INITIATING THE
REGULATORY PROCESS.
NOW, TO GIVE YOU SOME FEEL FOR THIS, I WOULD LIKE TO USE A COPPER
EXAMPLE SIMPLY BECAUSE I AM MOST FAMILIAR WITH THE MINING OF COPPER, BUT
ALSO -- THERE IS NO OTHER MAJOR MINERAL COMMODITY PERHAPS OTHER THAN
GOLD AND URANIUM THAT DERIVES METAL VALUES AT LOWER CONCENTRATION'S THAN
OCCUR IN COPPER ORES. NORMALLY, THE COPPER METAL VALUES -- IN THIS
COUNTRY -- RUNS OF THE ORDER OF ABOUT A HALF PERCENT OR LESS COPPER
CONTAINED IN THE SUM OF THE ORE AND WASTE WHICH MUST BE REMOVED TO GET
AT THE COPPER. SO THAT APPROXIMATELY 99 1/2 PERCENT OF WHAT IS REMOVED
WOULD BE CONSIDERED WASTE.
TO GIVE YOU SOME FEEL FOR THIS, IRON ORE, TYPICALLY, HAS A METAL
VALUE OF ABOUT 50 PERCENT, SO THERE IS FAR LESS WASTE DISPOSAL PROBLEM,
ALTHOUGH THERE IS A SIGNIFICANT PROBLEM OF COURSE.
WHAT THIS MEANS IS THAT ABOUT 2 1/2 TO 3 POUNDS OF COPPER ARE DERIVED
FROM EACH TON OF MATERIAL WHICH IS REMOVED FROM THE EARTH'S SURFACE AND
TREATED. MOST OF THIS IS IN THE FORM OF DIRT AND ROCK. THE WASTES,
GENERALLY SPEAKING, ARE LOW IN TOXICITY.
TO GIVE YOU SOME EXAMPLE OF THE VOLUMES, THE TAILINGS POND AT
KENNECOTT'S BINGHAM MINE IN UTAH WHICH IS THE RESULT OF GRINDING THE ORE
TO RECOVER THIS VERY SMALL QUANTITY OF COPPER, EXTENDS OVER 6,000 ACRES,
AND IF WE EXCLUDE WATER, ABOUT 98 PERCENT OF THESE TAILINGS WHICH ARE
FINELY GROUND ROCK ARE INERT SOLIDS CONTAINING CLAY, SAND, AND
SILICATES.
ABOUT 2 PERCENT ARE IRON PYRITES, WHICH WOULD BE REACTIVE AND THESE
ARE VASTLY DIFFERENT THAN THE CHEMICAL RESIDUES OF MUNICIPAL WASTE
DISPOSAL SITES WHICH ARE CONTEMPLATED BY THE AUTHORIS OF THE
LEGISLATION. BECAUSE OF THIS WE MINERS CONSIDER THE DISTINCTION OF
WASTES OF CRITICAL IMPORTANCE IN THE SUBCOMMITTEE'S DISCLSSIOS
PARTICULARLY IN THE DISCUSSION OF HOW TO LEVY FEES AND TAXES.
WE ARE PERSUADED THAT CONGRESS NEED LEGISLATE IN ONLY TWO AREAS:
FIRST, TO PROVIDE FOR THE CLEANUP OF ABANDONED AND ORPHANED WASTE
DISPOSAL SITES AND TO PROVIDE SOME MECHANISM FOR FUTURE CLEANUP COSTS
AND LIABILITIES ARISING AFTER THE RESPONSIBILITY OF AN OWNER OR OPERATOR
OF A HAZARDOUS WASTE DISPOSAL SITE HAS ENDED UNDER THE RESOURCE
CONSERVATION AND RECOVERY ACT.
ALL OF US, I THINK, SHARE A CONCERN FOR THE IMMEDIATE CLEANUP OF ANY
IMMINENT HAZARDS TO PUBLIC HEALTH WHICH HAVE RESULTED FROM PAST WASTE
DISPOSAL PRACTICE. HOWEVER, IN MANY OF THESE CASES THE OWNERS OR
OPERATORS CAN BE IDENTIFIED AND ADEQUATE APPROPRIATE REMEDIES EXIST FOR
PRESSING CLAIMS AGAINST THESE COMPANIES. IT IS ONLY IN THE SITUATION
WHERE THE OWNER AND OPERATOR CANNOT BE IDENTIFIED OR LACKS THE FINANCIAL
ABILITY TO PAY FOR CLEANUP THAT WE FEEL THERE IS NEED FOR ADDITIONAL
LEGISLATION.
REALISTICALLY, IN SUCH INSTANCES, WE THINK IT WILL BE IMPOSSIBLE TO
LOCATE OR IDENTIFY THE PARTIES RESPONSIBLE FOR SOME OF THESE ABANDONED
SITES. THEREFORE, WE URGE THAT THE COST OF CLEANUP OF ABANDONED
ORPHANED SITES BE FINANCED BY PUBLIC FUNDS, PERHAPS, AKIN TO THE FASHION
OF THE RED CROSS DISASTER RELIEF FUND.
STATEMENTS
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 020 OF 25
FREIDMAN F MANAGER, OCCUPATIONAL AND ENVIRONMENTAL PROTECTION
KAMLET K DIRECTOR, TOXIC AND HAZARDOUS WASTE SECTION
DAVIES C D MANAGER, CLAIMS
HOGAN R TRIAL LAWYER
SWAN D VICE PRESIDENT, ENVIRONMENTAL AFFAIRS
ATLANTIC RICHFIELD CO
CHEMICAL MANUFACTURERS ASSOCIATION
NATIONAL WILDLIFE FEDERATION
KEYSTONE SHIPPING CO PHILADELPHIA
AMERICAN INSTITUTE OF MERCHANT SHIPPING
AMERICAN TRIAL LAWYERS ASSOCIATION
KENNECOTT COPPER CORP
THE AMERICAN MINING CONGRESS
104657
HEARING
TRANSCRIPT
SENATE
THIS IS AN ACCEPTED PRACTICE IN THE TREATMENT OF OTHER BROAD PUBLIC
HEALTH PROBLEMS, PARTICULARLY WHERE EMERGENCIES ARE INVOLVED.
THE PROBLEM IS TWOFOLD: FIRST, AN IMMEDIATE CLEANUP OF ANY HAZARDS
AFFECTING PUBLIC HEALTH, AND SECOND TO PROVIDE REASONABLE COMPENSATION
FOR THOSE INDIVIDUALS WHO SUFFERED BECAUSE OF THESE PAST INADEQUATE
PRACTICES. TO TAX EXISTING COMPANIES WHO ARE IN NO WAY ASSOCIATED WITH
PAST OR PRESENT PRACTICE IS IN OUR VIEW DISCRIMINATORY AND POSSIBLY
UNCONSTITUTIONAL.
THE RESOURCE CONSERVATION AND RECOVERY ACT WILL, WE BELIEVE, HELP
PREVENT THE RECURRENCE OF THESE HAZARDS IN THE FUTURE, PARTICULARLY AS
THE REGULATORY MECHANISM FOR IDENTIFYING AND CATEGORIZING WASTE IS
DEVELOPED.
HOWEVER, THE AMERICAN MINING CONGRESS DOES SUPPORT THE CREATION OF A
FEDERALLY ADMINISTERED TRUST FUND TO SERVE AS A TYPE OF CATASTROPHIC
INSURANCE POLICY AGAINST FUTURE CLEANUP COSTS AND LIABILITIES ARISING
AFTER THE RESPONSIBILITY OF AN OWNER OR OPERATOR OF HAZARDOUS WASTE
DISPOSAL SITES HAS ENDED UNDER RCRA.
IN ADDITION, WE SUGGEST THAT THE FUND COULD APPROPRIATELY BE USED TO
LIMIT THE LIABILITY OF AN OPERATOR DURING THE PERIOD OF RESPONSIBILITY.
WE URGE THAT ANY FEES NOT BE UNIFORM BUT BASED SPECIFICALLY ON THE
AMOUNT OF HAZARDOUS WASTES RECEIVED FOR DISPOSAL, THE TOXICITY OF WASTE,
THE POTENTIAL FOR DAMAGE, INCLUDING THE LIKELIHOOD FOR EXPOSURE AND THE
COST OF TECHNOLOGY NECESSARY TO TREAT, STORE, OR DISPOSE A PARTICULAR
HAZARDOUS MATERIAL.
WE APPRECIATE THE SUBCOMMITTEES ARE EXAMINING THE CLEANUP OF OIL AND
HAZARDOUS SUBSTANCE SPILLS IN ADDITION TO WASTE DISPOSAL SITES. WE
AGREE THAT FUNDS ARE NECESSARY TO PAY FOR THESE WHEN THE PARTIES
RESPONSIBLE CANNOT BE READILY IDENTIFIED OR LACK ADEQUATE FINANCIAL
RESOURCES. HOWEVER, IN THE CASE OF HAZARDOUS SUBSTANCES, CONGRESS HAS
ALREADY PROVIDED FOR SUCH FUNDS IN SECTIONS 311 AND 504 OF THE CLEAN
WATER ACT, ALTHOUGH AS POINTED OUT BY A PREVIOUS SPEAKER, IT IS
NECESSARY TO FUND THESE PROVISIONS AND GAIN OPERATING EXPERIENCE.
WE PARTICULARLY SUGGEST THAT UNTIL SUCHOPERATING EXPERIENCE HAS BEEN
ATTAINED, THERE ARE PERHAPS ONLY TWO CHANGES WHICH THE SUBCOMMITTEES
SHOULD CONSIDER IN THIS MATTER; NAMELY, CONSOLIDATING THE TWO FUNDS AND
REMOVING THE REQUIREMENTS THAT DISHCARGES MUST REACH NAVIGABLE WATERS.
FUNDING FOR THE CLEANUP OF OIL SPILLS IS PROVIDED FOR THE H.R. 85
WHICH HAS BEEN APPROVED BY THEHOUSE OF REPRESENTATIVES AND IS AWAITING
ACTION IN THE SENATE. WE BELIEVE THAT SEPARATING THESE TWO FUNDS IS
DESIRABLE CONSIDERING THE VAST DIFFERENCESOF THE VOLUMES AND CLEANUP
DIFFERENCES OF THE TWO CATEGORIES OF THE PROBLEM.
WE REALIZE THE DIFFICULTIES INVOLVED IN LEGISLATING A PROGRAM WHICH
WILL ACCOMPLISH THE CLEANUP OF HAZARDOUS PRODUCTS AND THUS REASONABLE
COMPENSATION OF THOSE WHO HAVE SUFFERED. WE CERTAINLY WISH TO
PARTICIPATE IN ASSISTING CONGRESS IN ANY WAY WE CAN IN ANSWERING SOME OF
THE DIFFICULT QUESTIONS WHICH MUST BE DEALTH WITH IN ARRIVING AT A SOUND
PUBLIC POLICY.
THANK YOU.
SENATOR CHAFEE. THANK YOU, MR. SWAN. LET ME OUTLINE WHAT MY
SUGGESTION WOULD BE ON HOW WE PROCEED. WE HAVE YET TO HEAR FROM MR.
HANNEMAN AND DR. NICHOLSON. WE WILL HEAR FROM YOU GENTLEMEN PROMPTLY.
STATEMENTS
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 021 OF 25
FREIDMAN F MANAGER, OCCUPATIONAL AND ENVIRONMENTAL PROTECTION
KAMLET K DIRECTOR, TOXIC AND HAZARDOUS WASTE SECTION
DAVIES C D MANAGER, CLAIMS
HOGAN R TRIAL LAWYER
SWAN D VICE PRESIDENT, ENVIRONMENTAL AFFAIRS
ATLANTIC RICHFIELD CO
CHEMICAL MANUFACTURERS ASSOCIATION
NATIONAL WILDLIFE FEDERATION
KEYSTONE SHIPPING CO PHILADELPHIA
AMERICAN INSTITUTE OF MERCHANT SHIPPING
AMERICAN TRIAL LAWYERS ASSOCIATION
KENNECOTT COPPER CORP
THE AMERICAN MINING CONGRESS
104658
HEARING
TRANSCRIPT
SENATE
WHILE THIS PANEL IS STILL HERE I WOULD LIKE TO ASK A QUESTION OR TWO.
MR. SWAN TESTIFIED THAT HE WOULD LIKE TO KEEP THIS HAZARDOUS WASTE FUND
SEPARATE FROM THE OIL FUND. I APPRECIATE THAT SOME OF YOU OPPOSE HAVING
A HAZARDOUS WASTE FUND AT ALL, BUT I ASSUME ALL EXCEPT MR. KAMLET WOULD
LIKE TO KEEP THEM SEPARATE, IS THAT TRUE?
MR. KAMLET. I'M NOT SURE HOW MR. HOGAN FEELS ON THAT, BUT I THINK
CAPTAIN DAVIES IS OPPOSED TO THE OTHER FUND ANYWAY.
SENATOR CHAFEE. IF THERE IS TO BE HAZARDOUS WASTE YOU WOULD LIKE TO
KEEP IT SEPARATE FROM THE WILDLIFE, IS THAT CORRECT?
MR. DAVIES. I DON'T THINK NECESSARILY, NO.
SENATOR CHAFEE. MR. FRIEDMAN?
MR. FRIEDMAN. WE DEFINITELY BELIEVE THAT THEY SOULD BE KEPT
SEPARATE.
SENATOR CHAFEE. MR. KAMLET, NO?
MR. KAMLET. OUR MAJOR CONCERN IS THAT THE LEGISLATION EXTEND TO BOTH
CATEGORIES OF ACTIVITY; IT IS SOMEWHAT LESS IMPORTANT WHETHER THEY BE
SEPARATED OR TOGETHER.
SENATOR CHAFEE. MR. HOGAN, DO YOU HAVE ANY VIEWS?
MR. HOGAN. NO, SIR. I HAVE NOT FORMED ANY VIEWS ON THAT POINT.
SENATOR CHAFEE. PERHAPS MR. FRIEDMAN WOULD LIKE TO COMMENT ON MR.
KAMLET'S TESTIMONY.
MR. FRIEDMAN. YES.
SENATOR CHAFEE. I SAW -OU RISING IN YOUR CHAIR.
MR. FRIEDMAN. I USUALLY REACT. I HAVE KNOWN MR. KAMLET FOR A WHILE,
WHEN WE DID ENVIRONMENTAL LAW WORK BACK IN PHILADELPHIA. I AM
PARTICULARLY INTERESTED IN HIS COMMENT CONCERNING RYLANDS V. FLETCHER
AND HIS USE OF THE 1899 RIVERS AND HARBORS ACT.
SENATOR CHAFEE. THE MISCHIEF ON THE NEIGHBORS LAND?
MR. FRIEDMAN. YES. THIS IS ONE WE RECALL VERY WELL FROM LAW SCHOOL.
IT IS AN ACCIDENT TORT CASE. IT REALLY NEEDS TO BE PUT IN PERSPECTIVE
IN THE SAME SENSE AS MR. HOGAN'S REFERENCE TO THE 1899 RIVERS AND
HARBORS ACT AS WELL. YOU WILL RECALL BACK IN THE LATE 1960'S THAT THE
DEPARTMENT OF JUSTICE ATTORNEY WAS FRUSTRATED WITH THE INABILITY TO FIND
REMEDIES IN CERTAIN OF THESE INSTANCES. THAT IS PRECISELY WHERE THIS
COMMITTEE CAME IN AND PRECISELY WHERE THE ENVIRONMENTAL LAW CAME IN,
BECAUSE YOU DID HAVE THE RIVERS AND HARBORS ACT BACK IN THE LATE 1960'S
AND IN EARLY 1972 WITH THE FEDERAL POLLUTION CONTROL ACT. YOU DEVELOPED
A STRONG FEDERAL PERMIT CONTROL PROGRAM, WATER AND TECHNOLOGY STANDARDS;
YOU DEGELOPED A BERY BROAD CONCEPT OF CITIZEN SUITS THAT YOU COULD
BRING UNDER THESE ACTS. YOU HAD THE 1977 AMENDMENTS THAT TIGHTENED
THINGS UP EVEN FURTHER. THIS IS THE BASIS THAT I THINK WE HAVE TO
REALLY LOOK AT IN TERMS OF WHETHER OR NOT THERE IS A NEED FOR AMAJOR
CHANGE IN THE TORT LAW TO DEAL WITH THESE AREAS. WE ARE DEALING WITH
SOMETHING BETWEEN THE 1899 RIVERS AND HARBORS ACT, PRIOR TO THE WHOLE
DEVELOPMENT OF FEDERAL WATER POLLUTION CONTROL. IT IS A TOTALLY
DIFFERENT BALL GAME TODAY.
YOU DO HAVE THESE CONTROLS. YOU HAVE TO HAVE CERTAIN KINDS OF
TECHNOLOGY CONTROLS, YOU HAVE PERMITS, YOU CAN BE SUED ON THESE PERMITS.
ALL OF THESE THINGS ARE AVAILABLE RIGHT NOW.
SENATOR CHAFEE. ALL DEALING WITH WATER.
MR. FRIEDMAN. ALSO DEALING WITH AIR. THERE ARE PROVISIONS DEALING
WITH TOXIC SUBSTANCES, AND RCRA IS AVAILABLE TODAY. NONE OF THESE WERE
AVAILABLE IN THE EARLY TIME FRAMES.
STATEMENTS
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 022 OF 25
FREIDMAN F MANAGER, OCCUPATIONAL AND ENVIRONMENTAL PROTECTION
KAMLET K DIRECTOR, TOXIC AND HAZARDOUS WASTE SECTION
DAVIES C D MANAGER, CLAIMS
HOGAN R TRIAL LAWYER
SWAN D VICE PRESIDENT, ENVIRONMENTAL AFFAIRS
ATLANTIC RICHFIELD CO
CHEMICAL MANUFACTURERS ASSOCIATION
NATIONAL WILDLIFE FEDERATION
KEYSTONE SHIPPING CO PHILADELPHIA
AMERICAN INSTITUTE OF MERCHANT SHIPPING
AMERICAN TRIAL LAWYERS ASSOCIATION
KENNECOTT COPPER CORP
THE AMERICAN MINING CONGRESS
104659
HEARING
TRANSCRIPT
SENATE
MANY OF THESE ARE PARTICULARLY SUBJECT TO CITIZEN SUITS. THE
DEPARTMENT OF JUSTICE RIGHT NOW IS DEVELOPING A VERY STRINGENT AND VERY
STRONG GROUP THAT ARE BASICALLY GOING OUT AND PROSECUTING THESE AREAS.
NONE OF THESE THINGS WERE AVAILABLE YEARS AGO. IN THE SAME SENSE THAT
RYLANDS V. FLETCHER HAS TO BE PUT IN PERSPECTIVE. THERE IS ON ITS FACE
A SLIGHT DEFFERENCE BETWEEN SOMEBODY FLOODING OUT SOMEBODY ELSE'S AREA
VERSIS A QUESTION OF WHETHER OR NOT SOMEBODY IS RESPONSIBLE FOR SOME
KIND OF TOXIC SUBSTANCE. I THINK THAT HAS TO BE PUT INPERSPECTIVE.
YOU HAVE A CLASS QUESTION HERE, IN TERMS OF CAUSATION. MOREOVER,
RYLANDS V. FLETCHER IS SOMEWHAT OUTDATED BY SECTION 402(A) OF THE
RESTATEMENT OF TORTS WHERE AGAIN YOU HAVE TO HAVE SOME KIND OF TOTALLY
DIFFERENT KIND OF CAUSATION CONCEPT INVOLVED IN MANY OF THESE AREAS.
THIS AGAIN, IS JUST COMPLETELY IGNORED.
UNDER THIS BILL, FOR EXAMPLE THERE IS NODEFENSE FOR THIRD PARTIES
BEING INVOLVED IN SOME OF THESE SITUATION. AGAIN, RYLANDS V. FLETCHER
PRESUMES THAT THERE WAS A THIRD-PARTY DEFENSE, AND I THINK WE HAVE TO
PUT THIS QUESTION IN PERSPECTIVE. WE HAVE NO CAUSATION ASSUMPTION HERE.
YOU CAN BE LIABLE FOR ANYTHING. FOR THE PLAINTIFF'S LAWYERS, IT IS A
GREAT DEAL. IT IS A BLANK CHECK. I WOULDN'T WANT TO BE THE DEFENSE
LAWYER IN THIS KIND OF SITUATION. YOU HAVE JOINT AND SEVERAL LIABILITY,
AND JOINT AND SEVERAL LIABILITY IS ONE THING WHEN YOU APPLY IT TO A
SITUATION WHERE YOU DON'T HAVE A FEDERAL FUND INVOLVED. THE PROBLEM IS
THAT SOMEBODY HAS TO PAY FOR IT. THAT IS THE WHOLE CONCEPT OF THE
FEDERAL FUND.
THE WAY YOU HAVE JOINT AND SEVERAL LIABILITY WITHOUT ANY CAUSATION
ASSUMPTION, THE QUESTION OF THE RELEASE ASPECT INVOLVED. ALL OF THESE
THINGS COME IN OVER HERE. IT MAKES A VERY MAJOR DIFFERENCE.
SENATOR CHAFEE. LET ME ASK YOU SOMETHING HERE. YOU YOURSELF REFERRED
TO THE WRONGFUL DUMPER IN YOUR TESTIMONY.
MR. FRIEDMAN. I MEANT THAT FROM A LEGAL STANDPOINT.
SENATOR CHAFEE. WHOSE LAW ARE YOU TALKING ABOUT WHEN YOU TALK ABOUT
THE WRONGFUL DUMPER?
MR. FRIEDMAN. I THINK IT WOULD BE HELPFUL TO PUT THIS IN
PERSPECTIVE. I THINK IN MANY RESPECTS, PARTICULARLY IN DEALING WITH
ABANDONED SITES, TRYING TO PROSECUTE SOMEBODY FOR MALPRACTICE FOR
SOMETHING THEY DID IN THE 1940'S, USING 1979 STANDARDS IS NOT RIGHT. WE
HAVE TO LOOK AT THE PRACTICES AT THE TIME, WHETHER OR NOT IT WAS IN
VIOLATION OF THE LAW AT THE TIME AND, OF COURSE, OURASSOCIATION HAS MADE
IT VERY CLEAR THAT IF SOMEBODY IS IN VIOLATION OF THE LAW, WAS IN
VIOLATION OF THE LA, THEY SHOULD BE PROSECUTED TO THE FULLEST EXTENT
POSSIBLE.
I AM TALKING ABOUT THAT KIND OF A SITUATION. WE ARE NOT SUGGESTING
THAT ALL TRADITIONAL TORT REMEDIES BE THROWN OUT, QUITE TO THE CONTRARY.
IF SOMEBODY IS WRONG, THERE IS A LEGAL WRONG INVOLVED, THEY SHOULD BE
PROSECUTED. IT IS VERY SIGNFICIANT TO TAKE A LOOK AT WHAT WE ARE
TALKING ABOUT HERE IN THE CONTEXT OF THIS BILL, CHANGING TORT LAW, TO
COVER EVERYTHING IN THESE VERY BROAD PERSPECTIVES. WE CONSIDER RYLANDS
V. FLETCHER AS A RED HERRING, AND I WOULD BE MOST HAPPY TO SUBMIT
ADDITIONAL LEGAL MEMORANDA ON THIS WHOLE QUESTION OF TORT LIABILITY.
STATEMENTS
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 023 OF 25
FREIDMAN F MANAGER, OCCUPATIONAL AND ENVIRONMENTAL PROTECTION
KAMLET K DIRECTOR, TOXIC AND HAZARDOUS WASTE SECTION
DAVIES C D MANAGER, CLAIMS
HOGAN R TRIAL LAWYER
SWAN D VICE PRESIDENT, ENVIRONMENTAL AFFAIRS
ATLANTIC RICHFIELD CO
CHEMICAL MANUFACTURERS ASSOCIATION
NATIONAL WILDLIFE FEDERATION
KEYSTONE SHIPPING CO PHILADELPHIA
AMERICAN INSTITUTE OF MERCHANT SHIPPING
AMERICAN TRIAL LAWYERS ASSOCIATION
KENNECOTT COPPER CORP
THE AMERICAN MINING CONGRESS
104660
HEARING
TRANSCRIPT
SENATE
SENATOR CHAFEE. LET'S ASK MR. HOGAN WHAT HE THINKS ABOUT CU-RENT
EXISTING TORT LAW ON THE ABILITY TO RECOVER DAMAGES UNDER THE TORT LAW
IN THESE SITUATIONS.
MR. HOGAN. FIRST, IF I MIGHT ANSWER MR. FRIEDMAN, I THINK WHAT IS
HAPPENING IS, I WOULD LIKE TO PUT THE REVERSE OF THAT TO YOU, THAT THE
COURTS ARE REALLY APPLYING BURDENSOME PROOF FOR 1939 AND 1940 CASES,
APPLYING IT TO 1979 TECHNOLOGY. WHAT I AM SAYING IS THAT WE HAVE
LEARNED OVER THE PERIOD OF THE LAST 15 TO 20 OR 30 YEARS THAT WE HAVE
GOT RADIATION DAMAGE THAT DOESN'T SHOW UP FOR A LONG PERIOD OF TIME, WE
HAVE DAMAGE FROM CHEMICAL SPILLAGES AND NUCLEAR WASTES WHICH DON'T SHOW
UP FOR A PERIOD OF TIME. YET, IN CERTAIN AREAS THIS BURDENSOME PROOF,
WHERE THE BURDENSOME PROOF STILL REQUIRES BEYOND, OR RATHER IS STILL
REQUIRED TO SATISFY PEOPLE, TO SATISFY A JURY OR A TRIER OF FACT,
REASONABLY SATISIFED TO THE POINT OF REASONABLE SATISFACTION.
WITH MODERN TECHNOLOGY, THIS IS IMPOSSIBLE. YOU CANNOT DO THIS.
THAT IS TOO GREAT A BURDEN. IT IS TOO GREAT A BURDEN TO IMPOSE AND TO
EXPECT, AND, THEREFORE, WE FEEL THAT YOUR BILL, THE BILL OF YOUR
COMMITTEE, TAKES A LONG STEP FORWARD IN THIS DIRECTION.
SENATOR CHAFEE. IDON'T KNOW HOW YOU APPLY TORT LAW, FOR EXAMPLE, TO
DAMAGE TO THE ENVIRONMENT. HOW DO YOU WORK OUT AN ASSESSMENT THERE?
MR. KAMLET BELIEVES THERE SHOULD BE SOME ASSESSMENT OF DAMAGES, METHOD
OF SETTING THE WORTH. HE EVEN HAS THE SPECIFIC AMOUTN, DOLLAR PER FISH.
IT IS ALL-AROUND GOOD TO TALK TORT LAW, BUT THAT IS ALL RIGHT WHEN
THE INDIVIDUALS ARE INVOLVED, BUT HOW ARE YOU GOING TO FIGURE OUT THE
DAMAGE TO WETLANDS?
MR. FRIEDMAN. I THINK, AGAIN
SENATOR CHAFEE. IF YOU DUMP SOME TOXIC MATERIAL INTO IT.
MR. FRIEDMAN. ONCE AGAIN IT IS FAIR TO SAY THAT A LOT OF MR.
KAMLET'S CONCERNS WERE DEALT WITH BY THIS COMMITTEE AND BY THEY CONGRESS
IN 1978 UNDER SECTION 311. AGAIN, THERE EXISTS A BROAD BASIS FOR
HANDLING THAT.
SENATOR CHAFEE. LET'S TAKE GROUND WATER. FORGET NAVIGABLE WATER.
IF YOU DUMP SOMETHING OUT IN THE PLAINS SOMEWHERE AND IT SEEPS DOWN INTO
THE GROUNDWATER, THAT IS NOT COVERED BY 311.
MR. FRIEDMAN. NO, BUT IT WOULD BE COVERED UNDER EXISTING LAW. FOR
EXAMPLE, IF YOU ARE IN VIOLATION OF A PERMIT
SENATOR CHAFEE. WHOSE PERMIT?
MR. FRIEDMAN. ANY PERMIT. WHOSEVER IS INVOLVED. I GATHER WHAT YOU
ARE SAYING IS SOMEBODY HAS DUMPED SOMETHING IN THE GROUNDWATER, THEY HAD
NO BUSINESS DUMPING IT THERE. AGAIN, UNDER EXISTING LAW TODAY YOU ARE
SUBJECT TO VARIOUS PERMIT PROGRAMS. IF YOU ARE IN VIOLATION OF THAT
PERMIT, THE FEDERAL GOVERNMENT CAN SUE YOU FROM DUMPING THAT GROUNDWATER
IN THERE, FROM POLLUTING THE GROUNDWATER.
WITH RESPECT TO THE QUESTIONOF LIABILITIES, WHO SHOULD PAY, I THINK
WE HAVE TO LLOK AT THIS IN CONTEXT. I WOULD LIKE TO GET BACK TO THE
POINT ABOUT PERSONAL INJURIES. IF YOU HAVE A SITUATION IN WHICH YOU
DON'T KNOW THE CAUSE OF THE INJURIES, THAT IS WHERE YOU HAVE GOT THE
FEDERAL GOVERNMENT COMING IN. WE HAVE EMERGENCY RELIEF FUNDS, A LIST
THAT CAN BE DEVELOPED. THE REAL QUESTION IS WHETHER THE INDUSTRY SHOULD
PAY FOR SOMETHING WHICH, AGAIN, IS A GENERAL PUBLIC TYPE OF PROBLEM.
STATEMENTS
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 024 OF 25
FREIDMAN F MANAGER, OCCUPATIONAL AND ENVIRONMENTAL PROTECTION
KAMLET K DIRECTOR, TOXIC AND HAZARDOUS WASTE SECTION
DAVIES C D MANAGER, CLAIMS
HOGAN R TRIAL LAWYER
SWAN D VICE PRESIDENT, ENVIRONMENTAL AFFAIRS
ATLANTIC RICHFIELD CO
CHEMICAL MANUFACTURERS ASSOCIATION
NATIONAL WILDLIFE FEDERATION
KEYSTONE SHIPPING CO PHILADELPHIA
AMERICAN INSTITUTE OF MERCHANT SHIPPING
AMERICAN TRIAL LAWYERS ASSOCIATION
KENNECOTT COPPER CORP
THE AMERICAN MINING CONGRESS
104661
HEARING
TRANSCRIPT
SENATE
THAT IS THE SORT OF PROBLEM THAT I THINK HAS TO BE FACED.
SENATOR CHAFEE. DOES ANYBODY ELSE WANT TO COMMENT? MR. KAMLET.
MR. KAMLET. YES, SIR. I WOULD LIKE TO RESPOND TO SOME OF THE THINGS
MR. FRIEDMAN SAID, PARTICULARLY ABOUT HIS ASSERTION THAT THE COMMITTEE
BILL WOULD DO AWAY WITH THE WHOLE BACKGROUND AND BODY OF ENVIRONMENTAL
LAW.
SENATOR CAHFEE. I THINK HE SAID WE WOULD WIND THE CLOCK BACK, TO SET
THE CLOCK BACK TO 1960.
MR. FRIEDMAN. 1969.
MR. KAMLET. I DON'T BELIEVE THAT IS TRUE AT ALL.
SENATOR CHAFEE. I DIDN'T EITHER, BUT GO AHEAD.
MR. KAMLET. LET ME GIVE YOU SOME REASONS WHY I FEEL THAT WAY. THE
BODY OF EXISTING STATUTORY LAW IN THE ENVIRONMENTAL LAW FIELD IS LARGELY
CONCERNED WITH PERMITTING CONTROLLED DISCHARGES OR RELEASES OF MATERIALS
OF A VARIETY OF KINDS -- USUALLY ON A MEDIUM-BY-MEDIUM BASIS. THERE IS
A SEPARATE LAW THAT GOVERNS THEDISCHARGE OF MATERIALS INTO WATER, A
SEPARATE LAW THAT GOVERNS EMISSIONS INTO AIR, A SEPARATE SOLID WASTE LAW
FOR DISPOSAL ON LAND. THESE LAWS WERE BY AND LARGE NOT DIRECTED AT
UNCONTROLLED RELEASES. THAT IS POINT ONE.
THE OTHER POINT IS THAT BECAUSE THEY TENT TO BE LARGELY
MEDIUM-BY-MEDIUM ORIENTED, THE SITUATION WHERE YOU HAVE A RELEASE INTO
ONE MEDIUM WHICH EVENTUALLY MAY WIND UP IN ANOTHER MEDIUM FALL THROUGH
THE HOLES, IS NOT READILY ADDRESSED IN THESE SITUATIONS. YOUR
GROUNDWATER EXAMPLE IS A GOOD CASE IN POINT. THERE IS NO DIRECT
REGULATION OF GROUNDWATER CONTAMINATION. UNDER THE SAFE DRINKING WATER
ACT, IF YOU HAVE SOLE SOURCE DRINKING WATER SUPPLIES THAT HAVE BEEN SO
DESIGNATED, IN CERTAIN CASES THERE MAY BE CONSTRAINTS ON SUCH
DISCHARGES, BUT OTHERWISE, AS PART OF THE PERMIT SYSTEM, YOU ARE NOT
SUBJECT TO ANY CONTROL TO SPEAK OF, APART FROM UNDERGROUND INJECTION
CONTROLS, BELOW GROUNDWATER, NOT INTO GROUNDWATER, AND SO FORTH.
THERE ARE LOTS OF GAPS IN EXISTING STATUTORY LAW. CONGRESS HAS DONE
A COMMENDABLE JOB IN DEVELOPING LAW SEPARATELY IN ALL OF THESE AREAS.
THAT HAS BEEN VERY NECESSARY. BUT, THERE CONTINUE TO BE VERY LARGE GAPS
THAT STILL EXIST AND VERY LARGE IMPACTS THAT ARE OCCURRING NOT ONLY ON
PEOPLE AND PROPERTY WHO ARE INJURED, BUT ON NATURAL RESOURCES, THAT
THERE IS NO ADEQUATE SYSTEM UNDER EXISTING LAW TO DEAL WITH AND
RECOMPENSE.
MR. FRIEDMAN EXPRESSED THE CONCERN THAT UNDER SECTION 3(A)(2) OF THE
COMMITTEE'S BILL, THERE IS A FLAT PROHIBITION ON THE RELEASE OF ANY
HAZARDOUS SUBSTANCE WHICH WOULD EXTEND TO EVEN PERMITTED DISCHARGES
UNDER SOME OTHER STATUTORY SCHEME. IT MAY BE THAT SOME QUALIFICATION OF
THAT LANGUAGE MIGHT BE DESIRABLE, BUT I THINK ELSEWHERE IN THE BILL
THERE ARE PROVISIONS THAT PROVIDE FOR THE ADMINISTRATOR OF EPA IN
ESTABLISHING REGULATIONS TO DEFINE "HARMFUL AMOUNTS" OF VARIOUS RELEASES
THAT WOULD BE COVERED. CERTAINLY IT IS WITHIN THE ADMINISTRATOR'S
DISCRETION -- AND, I THINK, UNDER THE ADMINISTRATTION BILL, THE
ADMINISTRATOR WOULD BE REQUIRED TO DO THIS -- TO SPECIFY HARMFUL AMOUNTS
IN TERMS OF AMOUNTS THAT ARE AUTHORIZED TO BE DISCHARGED UNDER AN
APPLICABLE PERMIT.
STATEMENTS
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 025 OF 25
FREIDMAN F MANAGER, OCCUPATIONAL AND ENVIRONMENTAL PROTECTION
KAMLET K DIRECTOR, TOXIC AND HAZARDOUS WASTE SECTION
DAVIES C D MANAGER, CLAIMS
HOGAN R TRIAL LAWYER
SWAN D VICE PRESIDENT, ENVIRONMENTAL AFFAIRS
ATLANTIC RICHFIELD CO
CHEMICAL MANUFACTURERS ASSOCIATION
NATIONAL WILDLIFE FEDERATION
KEYSTONE SHIPPING CO PHILADELPHIA
AMERICAN INSTITUTE OF MERCHANT SHIPPING
AMERICAN TRIAL LAWYERS ASSOCIATION
KENNECOTT COPPER CORP
THE AMERICAN MINING CONGRESS
104662
HEARING
TRANSCRIPT
SENATE
SO THAT ONLY AMOUNTS IN EXCESS OF THOSE AUTHORIZED BY THE PERMIT
WOULD BE SUBJECT TO THE MORE EXTENSIVE PROVISIONS OF THIS LEGISLATION.
I THINK THAT IS EQUITABLE, WITH DUE RESPECT TO THE CONCERNS EXPRESSED BY
MR. FRIEDMAN.
AS TO THE JOINT AND SEVERAL LIABILITY QUESTION, AGAIN, THAT HAS A
LONG AND HONORED HISTORY IN TORT LAW AND IN STATUTORY LAW AS WELL.
WHERE YOU HAVE MULTIPLE DISCHARGERS ON A STREAM, FOR EXAMPLE, AND THERE
IS ONE DOWNSTREAM IMPACT, IT HAS NEVER BEEN NECESSARY TO DEMONSTRATE HOW
MUCH OF THE OVERALL IMPACT THAT OCCURRED WAS ATTRIBUTABLE TO EACH AND
EVERY INDIVIDUAL DISCHARGER. YOU HOLD THEM JOINTLY AND SEVERALLY
LIABLE, LET THEM FIGHT IT OUT AMONG THEMSELVES TO ALLOCATE THEIR
INDIVIDUAL LIABILITIES, AND THAT IS AS IT SHOULD BE.
ONE LAST POINT WITH RESPECT TO MR. FRIEDMAN'S COMMENTS ON RYLAND V.
FLETCHER.
SENATOR CHAFEE. LET'S NOT GET INTO RYLAND V. FLETCHER.
WE HAVE MOVED AHEAD FROM 1956. IS THAT CORRECT, ON THE JOINT AND
SEVERAL LIABILITY SITUATION. MR. HOGAN -- I AM GETTING A LITTLE FREE
LEGAL ADVICE HERE.
MR. FRIEDMAN WAS VERY CONCERNED THAT ONE PERSON COMES ALONG AND DUMPS
1 BARREL AND THE OTHERS HAVE DUMPED 10,000 AND HE IS HELD FOR ALL
10,001.
MR. HOGAN. I THINK IT IS ENTIRELY UNREALISTIC. IN THE FIRST PLACE
THERE WILL HAVE TO BECOME TRIERS OF FACT INVOLVED HERE, EITHER A JURY OR
JUDGE. THIS IS TAKING IT TO AN ABSCURED DEGREE AND IT IS NOT
JUSTIFIABLE. I THINK THAT IS THE WAY I WOULD ANSWER THAT. OF COURSE,
MR. FRIEDMAN STARTS OUT IN PARAGRAPH B BY SAYING 1480 WOULD CREATE A
FEDERAL TOXIC LAW WHICH WOULD SUPERSEDE AND PREEMPT STATE TORT LAWS
RELATING TO TOXICS. I DON'T KNOW WHAT HIS BASIS FOR THAT IS. I HAVEN'T
SEEN ANYTHING IN THE COMMENTS OF THE SEANTORS TO THIS EFFECT. MAYBE
THAT IS WITHIN THE PURVIEW OF WHAT YOU ARE CONSIDERING.
THEN, EVERYTHING HE SAYS THEREAFTER IS BASED UPON, THAT FALSE
PREMISE, WHAT I ASSUME TO BE A FALSE PREMISE, UNLESS YOU CAN CLARIFY
THAT FOR US, SENATOR. IS IT SUPPOSED TO PREEMPT?
SENATOR CHAFEE. WE DON'T PREEMPT HERE, BUT, OF COURSE,THAT IS A
CONSTANT WORD WE HAVE HAD BACK AND FORTH. THE PREEMPTION THING HAS BEEN
A CONSTANT PROBLEM. THIS ACT DOESN'T PREEMPT 1480, BUT THAT IS AN ISSUE
THAT IS ALWAYS COMING UP.
MR. HOGAN. OF COURSE YOU HAVE RECOGNIZED, IF THAT IS COMING UP, THEN
YOU ARE SEVERELY LIMITING
SENATOR CHAFEE. I AM NOT SUGGESTING WE ARE GOING TO DO IT. I AM
SAYING THAT IS A CONSTANT STRUGGLE WITHIN THE COMMITTEE, THE CONGRESS,
WHETHER TO PREEMPT OR NOT TO PREEMPT.
OK, GENTLEMEN, THANK YOU VERY MUCH FOR COMING. WE APPRECIATE IT. WE
WILL BEAR YOUR TESTIMONY IN MIND. THIS IS A DIFFICULT AREA. WE
UNDERSTAND THAT. WE WILL PROCEED AND WE ARE GRATEFUL FOR YOUR
CONTRIBUTION.
WHY DON'T WE HAVE MR. HANNEMAN AND DR. NICHOLSON BOTH COME UP.
SENATOR CHAFEE. NEXT WILL BE MR. HANNEMAN AND DR. NICHOLSON. MR.
HANNEMAN IS FROM THE NATIONAL SOLID WASTES MANAGEMENT ASSOCIATION.
DR. NICHOLSON IS A PROFESSOR AT THE MOUNT SINAI SCHOOL OF MEDICINE,
NEW YORK.
DR. NICHOLSON. I AM AN ASSOCIATE PROFESSOR.
SENATOR CHAFEE. I THINK YOU MADE A VALIANT EFFORT TO BE HERE
YESTERDAY AND FORESTALLED.
DR. NICHOLSON. THAT IS CORRECT.
SENATOR CHAFEE. NOW YOU ARE HERE TODAY AND READY AND ABLE.
GO AHEAD, MR. HANNEMAN. WE HAVE GOT A STATEMENT. I DON'T HAVE A
STATEMENT FROM DR. NICHOLSON. DO YOU HAVE ONE?
DR. NICHOLSON. NO, I DO NOT.
SENATOR CHAFEE. GO AHEAD.
STATEMENT
HAZARDOUS AND TOXIC WASTE DISPOSAL
HANNEMAN R L DIRECTOR, GOVERNMENT AND PUBLIC AFFAIRS
NATIONAL SOLID WASTES MANAGEMENT ASSOCIATION WASHINGTON, D.C.
104663
HEARING
TRANSCRIPT
SENATE
_RANSCRIPT
MR. HANNEMAN. MY NAME IS DICK HANNEMAN. I AM DIRECTOR OF
GOVERNMENTAND PUBLIC AFFAIRS FOR THE NATIONAL SOLID WASTES MANAGEMENT
ASSOCIATION, A PROFESSIONAL TRADE ASSOCIATION FOR THE WASTE MANAGEMENT
INDUSTRY.
SENATOR CHAFEE. MR. HANNEMAN, YOU HAVE GOT A FORMIDABLE STATEMENT OF
NINE PAGES HERE TO CLOSEPRINT. IF YOU ARE GOING TO CONDENSE, WOULD YOU
BE CONDENSING BY PAGE AS YOU MOVEALONG, OR HOW WILL IT WORK?
MR. HANNEMAN. I WILL BE LEAVING OUT SEVERAL PAGES INTHE TESTIMONY. I
INDICATE HOW WE COULD ACCOMPLISH THE AMENDMENTS WHICH WE SUGGEST AND I
WILLLEAVE THOSE OUT ANDPROVIDE THESE TO THE STAFF.
WITH ME AT THE TABLE ISOUR GENERAL COUNSEL, WILLIAM BRASHARES.
SENATOR CAHFEE. WE WILL PUT YOUR STATEMENT IN THE RECORD. (SEE P.
779).
MR. HANNEMAN. WE ALSOHAD A STATEMENT TO THE JULY2 HEARING. I WILL
SKIP OVER THATMATERIAL WHICH JUSTIFIES, WE FEEL, THE CONTENT OF S. 1325.
TODAY WE APPEAR TO URGE THE COMMITTEE TO APPEND S. 1325, THE
HAZARDOUS WASTES POST-CLOSURE LIABILITY ACT TO THELEGISLATION WHICH THE
COMMITTEE WILL MARK UP WHICH WE UNDERSTAND TO BE S.1480, SO I WILL TALK
TODAY ABOUT BOTH S. 1480 AND S. 1325. S. 1480 AND S. 1325 ADDRESS THE
QUESTION OFHOW SOCIETY WILL PAY FOR DISCHARGES OF TOXIC MATERIALS INTO
THEENVIRONMENT. S. 1480 IS MUCH BROADER, PROVIDING A REWRITE OF THE LAW
REGARDING THE BASIS OF LIABILITY AS WELL AS PROVIDING THE FUNDING
MECHANISM TO ASSURE THAT MONEY WILL BE AVAILABLE TO CLEAN UP PROBLEM
FACILITIES AND PAY DAMAGES WHICH THEYMAY CAUSE.
S. 1325 ISLIMITED IN COVERAGE ONLY TOTHOSE FACILITIES WHICH WILL BE
PERMITTED UNDER THE NEW REGULATORY PROGRAM UNDER SUBTITLE C OF RCRA AND
FURTHERLIMITED TO PROVIDING A MECHANISM TO ASSURE THAT FUNDS WILL BE
AVAILABLE TO PAY FOR CLEANUP AND FOR PERSONAL OR PROPERTY DAMAGES. IT
DOES NOT INANY WAY ALTER PRESENT STATUTORY OR COMMON LAW STANDARDS OF
LIABILITY.
THE BASIC DIFFERENCE BETWEEN THE TWO BILLS LIES INTHE DIFFERENCES
BETWEEN THE FUNDS WHICH THEY CREATE. THE FUND CREATED BY S. 1480 WOULD
COVER THE COSTS OF HAZARDOUS SUBSTANCE INCIDENTS WH4RE THOSE PARTIES
RESPONSIBLE CANNOT BE FOUND OR DO NOTHAVE NECESSARY FUNDS. IT WOULD BE
USED PRIMARILY TO CORRECT PAST PROBLEMS, MANY OF WHICH WE ALREADY KNOW
AND WHICH ARE TOLD WOULD COST A LOT OF MONEY.
IT SHOULD NOT HAVE GREAT FUTURE APPLICATIONS BECAUSE OF THE BILL'S
FINANCIAL RESPONSIBILITY SECTION, WHICH REQUIRE THAT THOSE WHO CAUSE
PROBLEMS HAVE THE RESOURCES TO CORRECT THEM.
THE FUND CREATED BY S. 1325, ON THE OTHER HAND, WOULD GIVE
RCRA-PERMITTED OPERATORS ASSURANCE OF ADEQUATE FUNDS IN THE EXPECTEDLY
INFREQUENT ANDUNLIKELY EVENT THAT A RCRA-PERMITTED FACILITY CAUSES A
PROBLEM AND INCURS LIABILITIES. FOR THIS REASON, THE FUND WHICH WOULD
BEESTABLISHED BY S. 1325 COULD BE MUCH SMALLER BECAUSE IT IS NOT
INTENDED AS ATTEMPTING TO AGGREGATE THE RELATIVELY LARGE SUMS NEEDED TO
CORRECT PAST PROBLEMS.
ITS PURPOSE IS THAT OF AN INSURANCE POLICY WHERE THE LIKELIHOOD OF
PAYOUTS IS SMALL.
YOU MAY ASK WHY CHOULD RCRA-PERMITTED FACILITIES BE TREATED ANY
DIFFERENTLY THAN ANY OTHERS? IT IS A GOOD QUESTION, AND THERE IS A GOOD
ANSWER; BECAUSE WITHOUT THE FINANCIAL ASSURANCES PROVIDED BY THE FUND
TOHOS COMMUNITIES AND WITHOUT THE LIABILITY MANAGING DEVICE OF THE FUND
FOR THE FACILITY OPERATOR, THE PRECEIVED RISKS ARE JUST TOO GREAT FOR
THOSE DIRECTLY INVOLVED, THOSEOPERATING AND THOSELIVING NEAR THE
FACILITIES.
IT WILL BE DIFFICULT TO FIND LOCATIONS FOR NEEDED NEW FACILITIES.
THE SUCCESS OF THIS NATION'S HAZARDOUS WASTE MANAGEMENT PROGRAM CANNOT
BE ACHIEVED SOLELY BY DRAFTING INTELLIGENT REGULATIONS NOR BY DEVISING
EFFECTIVE ENFORCEMENT SYSTEMS, THOUGH BOTH ARE OF COURSE, HIGHLY
ESSENTIAL. THE SUCCESS OF THE PROGRAM IS DEPENDENT ON PROVIDING
SUFFICIENT CAPACITY IN PROPERTY DESIGNED ANDOPERATED FACILITIES TO
ACCOMMODATE THE LARGE AND GROWING VOLUMES OF WASTES WHICH REQUIRE THIS
SPECIAL HANDLING.
SENATOR CHAFEE. COULD YOU HOLD UP 1 MINUTE? I HAVE GOTTEN BEHIND.
I JUST WANT TO CATCH UP HERE.
GO AHEAD.
MR. HANNEMAN. THE SUCCESS OF HAZARDOUS WASTES PROGRAM THEN DEPENDS ON
CONVINCING STATES ANDLOCAL COMMUNITIES THAT IT'S SAFE FOR FACILITIES
HANDLING THESE WASTES TO BE LCATED WITHIN THEIR BOUNDARIES AND THAT THE
ONLY ALTERNATIVE IS POOR DISPOSAL PRACTICES WHICH WILL PLAGUE EVERY
COMMUNITY WITH ENVIRONMENTAL AND PUBLIC HEALTH PROBLEMS.
CREATION OF A FUND TO PROVIDE SUFFICIENT MONEYS TOCLEAN UP AND
RESTORE A FACILITY AND TO PAY ANY DAMAGES SUSTAINED BY CITIZENS EITHER
TO THEIR PERSONS OR THEIR PROPERTY APPEARS TO BE A STEP TOWARD
SATISFYING ANY CONCERNS THAT COMMUNITIES MIGHT HAVE IN ACCEPTING SUCH
FACILITIES, THUS HELPING TO ALLEVIATE THE PROBLEM OF PROVIDING CAPACITY
SUFFICIENT TO OUR NEEDS.
SENATOR CHAFEE. WELL, I HOPE THE RESULTS ARE AS STRONG AS THE WISH
THERE. WE DO SENSE THERE ARE OTHER CONCERNS THAT COMMUNITIES HAVE, BUT
ONE IS THAT THEY ARE BEING ASKED TO ACCEPT SOCIETY'S PROBLEM IN THEIR
LOCALITY, ANDTHIS WOULD HELP TO ALLOW THEM TO KNOW THAT THEY DIDN'T HAVE
TO GO OUTSIDE TO FIND THE RESOURCES TO KEEP THEIR COMMUNITIES SAFE.
IN YOUR DUTIES, AREYOU FAMILIAR WITH ATTEMPTING TO LOCATE THESE
PLACES?
MR. HANNEMAN. YES, SIR. IT IS MOST DIFFICULT, AND I THINK
YOU PROBABLY
SENATOR CHAFEE. "NEVER" IS A STRONG WORD, BUT DO YOU SUPPOSE YOU WILL
SUCCEED?
MR. HANNEMAN. WE HAVE IN THE LAST SEVERAL YEARS A DOZEN OR SO
SUCCESSFUL SITINGS OFMODERN FACILITIES.
SENATOR CHAFEE. HOW BIG AN AREA DO THEY COVER?
MR. HANNEMAN. THATWOULD BE FOR THE ENTIRE UNITEDSTATES.
SENATOR CHAFEE. NO, BUT I MEAN HOW MANY ACRES WOULD APLACE REQUIRE,
TAKE AN AVERAGE, NORMAL PLACE.
MR. HANNEMAN. 600 TO 1,000 ACRES PER SITE FOR A SECURE LANDFILL
FACILITY. OBVIOUSLY, TREATMENT FACILITIESWULD BE MUCH SMALLER; MORE
THE SIZE OF A FACTORY.
THE FUND DEVICE ALSO PROVIDES AN OTHERWISE UNAVAILABLE MECHANISM FOR
THEOPERATOR OF SUCH FACILITIES TO MANAGE THE LIABILITIES WHICH MAY BE
INCURRED IN HANDLING THESE CHAMICAL WASTES. WE ARE FIRMLY COMMITTED TO
MEANINGFUL LEGAL REQUIREMENTS AS TO FINANCIAL RESPONSIBILITY. COMPANIES
UNABLE TO MEET THE FINANCIAL REQUIREMENTS OF DOING THE JOB RIGHT
ANDSTANDING BEHIND THEIR WORK HAVE NO PLACE IN THEHAZARDOUS WASTE
MANAGEMENT INDUSTRY.
ON THE OTHERHAND, COMPANIES WHO STAND READY TO COMMIT THE TENS OF
MILLIONS OF DOLLARS NECESSARY FOR THE PROPER MANAGEMENT OF HAZARDOUS
WASTES, AS CONGRESS INTENDED BY PASSING RCRA, SHOULD HAVE AVAILABLE SOME
MEANS TO MANAGE THEIR POTENTIAL LIABILITIES.
NONE EXISTS TODAY. COMMERCIAL INSURANCE FOR NONSUDDEN,
NONACCIDENTAL INCIDENTS DURING THE LIFE OF FACILITIES IS
UNAVAILABLE EXCPET ON A CLAIMS-MADE, CANCELABLE BASIS. NO
INSURANCE IS MADE AVAILABLE FOR THE POTENTIAL LIABILITY IN
PERPETUITY ONCE THE SITE IS CLOSED. THIS, CLEARLY, PROVIDES NO
LONG-RANGE PROTECTION EITHER TO THE COMPANY OR TO THE HOST
COMMUNITY. WE HAVE CONSULTED WITH THE INSURANCE INDUSTRY. EPA
HAS CONSULTED WITH THE INSURANCE INDUSTRY. THE ANSWER IS THE SAME:
THIS TYPE OF PERPETUAL COVERAGE IS UNAVAILABLE.
THE FUND WHICH WOULD BE CREATED UNDER S. 1325 WOULD ACCOMPLISH THE
TWO OBJECTIVES OF PROVIDING AN INCENTIVE TO COMMUNITIES TO ACCEPT
PERMITTED FACILITIES WHICH PROPERLY MANAGE HAZARDOUS WASTES AND TO
PROVIDE THE OPERATOR WITH THELIABILITY MANAGING DEVICE OFTHE FUND.
LET ME TURN TOHOW YOU COULD MODIFY THE BILLS TO EFFECT THESE AIMS.
BASICALLY, WE SUGGEST THAT THE TWO BILLS BE COMBINED AND THAT S. 1480
BECOME TITLE I OFTHE BLL AND S. 1325 BE ADDED AS TITLE II. THUS, TITLE
I WOULD DEAL WITH PROBLEMS OF LIABILITY AND CAUSATION AND CREATE A FUND
TO PAY COSTS OF CLEANUP ANDPERSONAL ANDPROPERTY DAMAGE.
THE TITLE II FUND WOULD BE SEPARATE. IT WOULD PROVIDE A MEANS
WHEREBY OPERATORS OF RCRA-PERMITTED FACILITIES COULD INSURE THEMSELVES
AND AGGREGATE THE FUNDS WHICH THEY NEED SHOULD EVEN THESE TIGHTLY
REGULATED FACILITIES DEVELOP PROBLEMS.
THERE ARE , HOWEVER,SOME SPECIFIC CHANGES WHICH WE WOULD LIEK TO
SUGGEST FOR EACH BILL. FIRST, AS WAS MENTIONED EARLIER, PERHAPS
UNINTENTIONALLY, S. 1480 AS PRESENTLY WRITTEN REWRITES THE STANDARDS OF
EVERY POLLUTION CONTROL ACT INTHE FEDERAL STATUTES. THE BILL PROHIBITS
THE RELEASE OR DISPOSAL OF ANY HAZARDOUS SUBSTANCE, INCLUDING ANY
RELEASE INTO OR UPON GROUNDWATER, AIR, LAND, ET CETERA.
YOU WILL RECOGNIZE THAT THIS ESTABLISHES AN ABSOLUTE PROHIBITION, A
ZERO DISCHARGE, IF YOU WILL. IT DOES NOT AUTHORIZE THE EPA
ADMINISTRATOR TO SET ALLOWABLE LEVELS OF SAFE DISCHARGES OR ABIDE BY
STANDARDS ELSEWHERE ESTABLISHED BY CONGRESS AND IN THE VARIOUS STATUTES.
IT APPEARS THAT IF THIS STATUTE WERE TO BE ENACTED, THEREBY PROHIBITING
THEDSPOSAL OF ANY HAZARDOUS SUBSTANCE -- INTO LAND, THEN WE HAVE ALL
WASTED A GREAT DEAL OF TIME TRYING TO DEVISESTANDARDS FOR SECURE LAND
BURIAL OF HAZARDOUS WASTES BECAUSE ALL SUCH LAND DISPOSAL WOULD BE
ABSOLUTELY PROHIBITED. EXISTING STATUTES ARE FULLY SUFFICIENT TO
DESCRIBE LIABILITIES UNDER THE LAW.
SECTION (3)(A) SHOULD BE DELETED.
SECOND, IN THEDISCUSSION OF QUESTIONS OF LIABILITY FOR DAMAGES AND
REMOVAL COSTS IN SECTION 4 OF S. 1480, WE URGE THE COMMITTEE TO
REEMPHASIZE THE CAVEAT INCORPORATED INSECTION 4(F) BY AMENDING SECTION
4(A) TO INCLUDE LANGUAGE SO ONLY GENERATORS OR TRANSPORTERS OF ANY
HAZARDOUS SUBSTANCE WHO KNOW OR HAD REASON TO KNOW THAT RELEASE OF THE
SUBSTANCE CAUSED A PROBLEM WOULD BE DEEMED TO HAVE CONTRIBUTED TO IT.
THIS CIRCUMSCRIBES, APPROPRIATELY, THE BROAD LIABILITY OF THOSE
DESCRIBED IN SECTION 4(A).
THIS IS VERY IMPORTANT. IT A TRANSPORTER, FOR EXAMPLE, INNOCENTLY
COLLECTS A BARREL HIDDEN BY A CUSTOMER AMONGST OTHER CONVENTIONAL TRASH,
OR, BETTER STILL, IF THE SMALL GENERATOR EXEMPTION PROPOSED BY EPA IS
MAINTAINED IN THE FINAL REGULATIONS AND SUCH GENERATORS PLACE SMALL
QUANTITIES OF OTHERWISE HAZARDOUS WASTES OUT WITH THEIR REGULAR REFUSE,
THE TRANSPORTER WILL UNKNOWINGLY DEPOSIT THE LOAD OF TRASH AT A
CONVENTIONAL SANITARY LANDFILL OR A RESOURCE RECOVERY FACILITY WHICH MAY
OR MAY NOT BE ABLE TO HANDLE THEM PROPERLY. WHILE THE FACILITY OPERATOR
REMAINS LIABLE, IT SEEMS GROSSLY UNFAIR TO SUBJECT THE TRANSPORTER IN
SUCH CIRCUMSTANCES TO LIABILITY. THE LANGUAGE OF SECTION 4(A) AS IT
STANDS WOULD SUGGEST IN THESE CASES THAT THE TRANSPORTER WAS A
CONTRIBUTING PARTY. THUS, THE LANGUAGE OF 4(F) WHICH ELIMINATES THIS
RESPONSIBILITY NEEDS TO BE INEXTRICABLY ATTACHED TO THE BROAD LANGUAGE
OF SECTION 4(A).
SENATOR CHAFEE. WE WON'T DEBATE IT NOW, BUT HE HAD POINTED OUT TO ME
THAT IN SECTION 311 OF THE CLEAN WATER ACT IT PROVIDES:
THE CONGRESS HEREBY DECLARES IT IS THE POLICY OF THE UNITED STATES,
THERE SHOULD BE NO DISCHARGE OF OIL OR HAZARDOUS SUBSTANCES INTO OR UPON
THE NAVIGABLE WATERS OF THE UNITED STATES.
THAT DOESN'T QUITE CONFORM TO WHAT YOU'RE SAYING THAT WE GO MUCH
FURTHER IN THIS 1480.
MR. HANNEMAN. THE STANDARDS BEING DEVELOPED UNDER THE CLEAN AIR ACT
AND RCRA, PARTICULARLY OF CONCERN TO US, ALLOW CERTAIN DISCHARGES TO BE
MADE JUST SO THAT THEY DO NOT EXCEED CERTAIN LEVELS WHICH ARE SPECIFIED
TO PROTECT THE PUBLIC.
THAT IS THE REFERENCE WHICH I AM MAKING.
SENATOR CHAFEE. GO AHEAD.
MR. HANNEMAN. THIRD, WE RECOGNIZE AND SYMPATHIZE WITH THE INTENT OF
SECTION 4(C) OF S. 1480 TO MAKE IT EASIER FOR INSURED PARTIES TO AVAIL
THEMSELVES OF REMEDIES UNDER THE LAW.
WE CERTAINLY WOULD NOT WANT THE EXTENSIVELY DEVELOPED TESTS OF THE
LAW GOVERNING CAUSATION TO IMPEDE RECOVERY OF LEGITIMATELY AGGRIEVED
CLAIMANTS FOR INJURIES WHICH THEY MAY SUFFER.
ON THE OTHER HAND, COURTS ARE BECOMING EXTREMELY SENSITIVE TO THIS
ISSUE AND TO THE BURDEN ON CLAIMANTS, AND THE LAW IS STEADILY EVOLVING
THROUGH JUDICIAL FINE-TUNING TOWARD EASIER BURDENS OF PROOF THAT,
NEVERTHELESS, RETAIN THE REQUIREMENT TO LINK CAUSE AND EFFECT. WE
RESPECTFULLY RECOMMEND THAT THE COMMITTEE DELETE SECTION 4(C) AND RELY
INSTEAD ON THE CAREFUL JUDICIAL REMEDIES BEING APPLIED, RATHER THAN
LEGISLATE IN A BROAD FASHION AND RISK UPSETTING DELICATE AND ESTABLISHED
PRINCIPLES OF LAW.
FOURTH, INAS MUCH AS S. 1325 PROVIDES FOR LEVELS OF FINANCIAL
RESPONSIBILITY CONSISTENT WITH THOSE PROPOSED BY THE U.S. EPA, WE WOULD
RECOMMEND THAT S. 1480 BE AMENDED TO EXCLUDE FINANCIAL RESPONSIBILITY
REQUIREMENTS FOR RCRA-PERMITTED FACILITIES AND THAT THESE REQUIREMENTS
BE SPECIFIED IN TITLE II, THE PRESENT S. 1325.
FIFTY, AND FINALLY THERE IS THE QUESTION OF PREEMPTION. BOTH S.
1480AND S. 1325 PROVIDE A FEDERAL PREEMPTION OF THE FORUM IN WHICH
ACTION MAY BE BROUGHT. FEDERAL COURTS ARE SPECIFIED. BOTH S. 1480 AND
S. 1325 SPECIFICALLY DO NOT PREEMPT EXISTING OR FUTURE STATE OR LOCAL
LAWS AFFECTING LIABILITY FOR HAZARDOUS SUBSTANCE INCIDENTS, ALTHOUGH S.
1480 GOES BEYOND THAT TO CREATE NEW FEDERAL STANDARDS OF LIABILITY.
THE TWO BILLS, AS PRESENTLY DRAFTED, DIFFER ON PREEMPTION OF STATE
LEVEL FUNDS FOR CLEANUP AND FOR DAMAGES.
WE SUGGEST THAT BOTH BILLS BE MODIFIED TO PERMIT STATES TO CREATE
FUNDS FOR CLEANUP AND EMERGENCY RESPONSE AS DESCRIBED IN SECTION 4(A)(1)
OF S. 1480,WHILE PREEMPTING AND RESERVING FOR THE NATIONAL FUND THE
RESPONSIBILITY OF PROVIDING FOR INJURIES OR DAMAGE AS DESCRIBED IN
SECTION 4(A)(2).
THE EMERGENCY RESPONSE FUNDS OF THE STATES WOULD PROVIDE ADVANCE
FUNDING, REIMBURSIBLE, FROM THE NATIONAL FUND AND THEREFORE SHOULD BE
LIMITED IN SIZE. WE RECOMMEND A $3 TO $5 MILLION LIMIT.
MR. CHAIRMAN, WE HAVE CONDUCTED A VERY CAREFUL REVIEW ALSO OF S.
1325. LET ME SUGGEST BRIEFLY A COUPLE OF AMENDMENTS TO THAT.
FIRST, THE TERM "CLAIM" IS USED THROUGHOUT THE BILL AND DEFINED
DIFFERENTLY FROM THE SAME WORD AS USED IN S. 1480. WE WOULD SUBSTITUTE
THE DEFINITION "ANY JUDGMENT ENFORCEABLE AT LAW"
SENATOR CHAFEE. WE CAN PICK UP THOSE SPECIFICS LATER ON THAT ONE.
GIVE US THENEXT ONE.
MR. HANNEMAN. I WOULD LIKE TO POINT OUT THAT THE FUND IN S. 1325
DOES PAY, NOT ONLY CLEANUP COSTS, BUT PERSONAL AND PROPERTY DAMAGES.
THE FEES, WE BELIEVE, AS OPPOSED TO THE ORIGINAL LANGUAGE OF THE
BILL, SHOULD BE ASSESSED ON THE BASIS OF QUANTITY AND DEGREE OF HAZARD
INSTEAD OF JUST QUANTITY.
SENATOR CHAFEE. LET'S HAE THAT ONE AGAIN.
MR. HANNEMAN. THE ORIGINAL LANGUAGE OF S. 1325 PROVIDES THAT THE
ADMINISTRATOR OR THE -- I THINK THE ADMINISTRATOR -- SET THE FEE ON THE
QUANTITY OF WASTE. WE WOULD HAVE PREFERRED TO SEE THAT IT BE ASSESSED
ON THE BASIS OF DEGREE OF HAZARD AS WELL AS QUANTITY OF THE WASTE, BUT
THERE WAS NOT WAY OF DOING THAT. EPA IS APPARENTLY DEVELOPING A
CATEGORIZATION. WE WOULD LIKE THAT INCORPORATED INTO THE FEE ASSESSMENT
OF S. 1325; THE FEE IS ASSESSED, AS YOU MAY REMEMBER, ON THE DISPOSAL
INDUSTRY ITSELF, BUT NOT ON THE PRODUCERS OF CHEMICALS, AND SO FORTH.
SENATOR CHAFEE. WELL, THOSE ARE VERY THOUGHTFUL SUGGESTIONS IN THIS
DIFFICULT PROBLEM. WE THANK YOU FOR IT, AND WE'LL CAREFULLY REVIEW YOUR
SUGGESTIONS. YOUR PEOPLE ARE DEEP IN THIS AREA.
MR. HANNEMAN. WE APPRECIATE THE OPPORTUNITY TO BE HERE.
SENATOR CHAFEE. I HAD THE PRIVILEGE OF SEEING ONE OF YOUR
DISPOSAL FACILITIES OUT IN CALIFORNIA, OUTSIDE OF SAN FRANCISCO.
IT DOES TAKE A LOT OF CAPITAL INVESTMENT, A LOT OF LAND, BUT THEY
PROVIDE A WORTHWHILE SERVICE.
DR. NICHOLSON.
STATEMENT
HAZARDOUS AND TOXIC WASTE DISPOSAL
NICHOLSON W
MOUNT SINAI SCHOOL OF MEDICINE NEW YORK, NY
104668
HEARING
TRANSCRIPT
SENATE
THANK YOU. IAPRECIATE VERY MUCH THE OPPORTUNITY TO SPEAK BEFORE YOU
ON THE ISSUE OF CREATING A SUPERFUND TO REMEDY THE SITUATIONS CONCERNED
WITH INADEQUATE DISPOSAL OF HAZARDOUS WASTES. MY BACKGROUND IS IN THE
STUDY AND ANALYSIS OF HEALTH EFFECTS IN OCCUPATIONAL AND ENVIRONMENTAL
CIRCUMSTANCES OF PEOPLE WHO MAY HAVE BEEN EXPOSED IN THOSE CASES. AS
SUCH, WE HAVE HAD OPPORTUNITY TO OBSERVE SOME OF THE PROBLEMS THAT HAVE
DEVELOPED IN TERMS OF HUMAN HEALTH EFFECTS FROM INADEQUATE DISPOSAL OF
HAZARDOUS WASTES. I HAVE NO EXPERTISE IN THE LEGAL NUANCES AND
RESPONSIBILITY OR IN THE ECONOMICS OR HOW ONE MIGHT CREATE SUCH A FUND,
AND I WOULD LIKE HERE TO JUST DESCRIBE SOME SPECIFIC EXAMPLES THAT WE
HAVE SEEN IN TERMS OF REAL AND POTENTIAL HEALTH EFFECTS FROM WASTE
DISPOSAL.
I AM SURE YOU HAVE ALREADY BEEN DELUGED WITH THE STATISTICS OF A
NUMBER OF WASTE DISPOSAL SITES, 50,000 AT LEAST AS FAR AS THE EPA KNOWS,
AND THOSE ARE THE ONES THEY KNOW OF. PERHAPS 80 OR 90 PERCENT OF THE
MATERIAL IS INADEQUATELY DISPOSED OF, AND THE POTENTIAL OF HUMAN HEALTH
EFFECTS FROM THAT IS REAL.
JUST LAST JUNE WE HAD OCCASION TO EXAMINE WORKERS WHO WERE EMPLOYED
IN THE VERTEC FACILITY IN JACKSONVILLE, ARK., THAT MANUFACTURED MUCH OF
THE DIOXIN USED IN THE UNITED STATES, AND THE CONCERN WAS THE DISPOSAL
OF THAT MATERIAL. WHILE THERE WE INVESTIGATED SOME OF THE DISSEMINATION
FROM THAT PLANT SITE OF TCDD DIOXIN, ONE OF THE MOST TOXIC MATERIALS
KNOWN TO MAN, FROM THE SITE. THE MATERIAL HAD BEEN PRODUCED AS A
BYPRODUCT OF THE 245 T MANUFACTURED THERE, AND IT WAS DIPOSED OF IN
LANDFILLS, AND LATER IN BARRELS. IN THE LANDFILLS, LEACHING WAS
OCCURRING AND IT WAS ENTERING THE WATER SYSTEM, FOUND AS MUCH AS 15
MILES DOWN THE STREAM IN A SMALL CREEK RUNNING FROM THE PLANT.
A SEWER SYSTEM ACTUALLY WENT DIRECTLY UNDER WHERE THE LAND DISPOSAL
HAD OCCURRED AND LEACHING OF WATER THROUGH THAT LAND DISPOSAL INTO THE
SEWER SYSTEM AT TIMES OFHIGH RAIN LED TO THE SEWER SYSTEM IN A COMMUNITY
ADJACENT TO THE SITE, SPILLING OUT OF HOLES ONTO THE STREET AND GRASS OF
THE HOUSES. THE TCDD COULD BE FOUND THERE IN THE STREETS ADJACENT TO
THAT MANHOLE, SO THAT THERE IS SIGNIFICANT DISSEMINATION FROM WHAT WAS
AN INADEQUATE DISPOSAL CIRCUMSTANCE, AND PRESENTLY ALL THAT HAS BEEN
DONE IS THAT SOME OF THE LEAKING BARRELS HAD THE MATERIAL TRANSFERRED TO
OTHERS AND THE LAND DISPOSAL SITES HAVE BEEN COVERED OVER. THIS IS MORE
OR LESS THE TREATMENT.
WHAT IS IMPORTANT ISTHAT IN SUCH CIRCUMSTANCES WHERE THERE IS
SIGNIFICANT POTENTIAL HEALTH EFFEC-S THAT COULD COME, THAT A REMEDY BE
AFFECTED RAPIDLY, THAT ONE DOESN'T WAIT UNTIL THERE IS DETERMINATION OF
THE FULL RESPONSIBILITY, LIABILITY, OR WHETHER IT SHOULD BE PAID FOR BY
THIS OWNER OF THE LAND OR THAT OWNER OF THE LAND. I THINK IT IS
IMPORTANT IN SUCH CIRCUMSTANCES THAT THE REMEDY BE EFFECTED IMMEDIATELY
SO THAT POTENTIAL HEALTH EFFECTS CAN BE ELIMINATED. THIS, TOO, IS THE
CASE IN THE LOVE CANAL, WHERE HUNDREDS OF FAMILIES HAVE BEEN DIRECTLY
AFFECTED. TODAY WE STILL DON'T HAVE THE FULL ASSESSMENT OF THE HEALTH
EFFECTS. THEY HAVE NOT YET ACHIEVED A REMEDY. EVEN YESTERDAY THERE
WERE TWO MEMBERS OF THOSE FAMILIES AT MOUNT SINAI ATTEMPTING TO OBTAIN
RESOLUTION OF THEIRHEALTH PROBLEMS AT THAT TIME.
HERE AGAIN THE TOTAL COST OF REMEDYING THE SITUATION AT LOVE CANAL IS
APPROACHING $100 MILLION. INADEQUATE FUNDS ARE CURRENTLY AVAILABLE, AND
TO OBTAIN THEM FROM THE COMPANIES INVOLVED COULD TAKE A LONG PERIOD OF
TIME. WHATEVER THE RESPONSIBILITY, LIABILITY, THAT MIGHT EVENTUALLY BE
ASSESSED, I THINK CONTROL SHOULD BE EFFECTED AS RAPIDLY AS POSSIBLE WITH
FUNDS THAT WOULD BE AVAILABLE IN SUCH A SUPERFUND AS PROJECTED HERE.
WHETHER THAT IS DIRECTLY CONTEOMPLATED, THAT IS, USING SUCH FUNDS FOR
THOSE SITES IN WHICH RESPONSIBILITY CAN BE ESTABLISHED AS WELL AS THOSE
IN WHICH IT HAS LONG SINCE BEEN LOST. I THINK IS IMPORTANT IN TERMS OF
HUMAN HEALTH EFFECTS, THAT THE REMEDY BE EFFECTED RAPIDLY.
SENATOR CHAFEE. CAN YOU MEDICALLY TRACE THE CAUSALITY BETWEEN THE
VICTIM OF A CHEMICALLY INDUCED DISEASE AND THE FACT THAT THE CHEMICAL
INDEED DID INDUCE THE DISEASE?
DR. NICHOLSON. IN SOME CIRCUMSTANCES YOU CAN. LET ME DESCRIBE ONE
SUCH CIRCUMSTANCE.
SENATOR CHAFEE. TAKE THE LOVE CANAL SITUATION.
DR. NICHOLSON. IN THE LOVE CANAL THE IMMEDIATE CONSEQUENCES ARE
MOSTLY NEUROLOGICAL. PEOPLE ARE SUFFERING HEADACHES AND VARIOUS GENERAL
NEUROLOGICAL PROBLEMS FROM EXPOSURE TO THE FUMES EMANATING FROM THAT
WASTE SITE. AMONG THOSE MATERIALS ARE FUMES OF BENZENE, WHICH IS A
KNOWN AGENT THAT CAN PRODUCE LEUKEMIA. THE LEUKEMIA THAT MIGHT BE
PRODUCED BY EXPOSURE OF PEOPLE RECENTLY IN THE LOVE CANAL CIRCUMSTANCES
MAY NOT OCCUR TO 10 OR 20 YEARS. SO THAT IN SUCH CIRCUMSTANCES WHERE
YOU ARE CONCERNED WITH MAJOR HEALTH EFFECTS, CANCER IN PARTICULAR, IT
MAY BE DELAYED. THE TOTAL CAUSALITY CANNOT BE NECESSARILY ESTABLISHED,
THAT IS, WITH ABSOLUTE CERTAINTY. ANYBODY WHO LIVED IN LOVE CANAL WHO
DEVELOPED LEUKEMIA 5 OR 10 YEARS HENCE, A CHILD OR AN ADULT, IT MIGHT
NOT BE POSSIBLE TO SAY WITH ABSOLUTE CERTAINTY THAT THE EXPOSURE DID IT.
SENATOR CHAFEE. THEREFORE, WHY DOESN'T EVERYBODY GET LEUKEMIA?
DR. NICHOLSON. THAT IS RIGHT. OBVIOUSLY, LEUKEMIA OCCURS FROM OTHER
CIRCUMSTANCES. IT MAY BE POSSIBLE, AND I DON'T KNOW IF IT WOULD BE AT
THAT TIME TO HAVE SUFFICIENT INFORMATION TO GIVE A PROBABLY LISTING
ESTIMATE BASED ON RESPONSE RELATIONSHIPS AND EPIDEMICOLOGICAL STUDIES
THAT ARE AT THIS TIME INADEQUATE. I THINK IN THE CIRCUMSTANCES THAT
THELOVE CANAL AND MANY OF THESE OTHER SITES WOULD PRODUCE ONLY A
RELATIVELY SMALL NUMBER OF RELATABLE -- AND I MEAN RELATABLE IN THE
SENSE THAT IT IS POSSIBLE, BUT NOT NECESSARILY -- MALIGNANCIES. THERE,
I THINK, THE COST OF THOSE WOULD BE SMALL COMPARED TO THE REAL COST OF
CLEANUP, AND THUS, IT WOULD BE OF CERTAIN BENEFIT TO THE PEOPLE TO
CONSIDER THAT CAUSALITY DID IN FACT EXIST AND THAT APPROPRIATE
COMPENSATION BE AFFORDED THOSE INDIVIDUALS.
IN THE CASE OF OTHER CIRCUMSTANCES, THE CAUSALITY ISMUCH STRONGER AND
I COULD REFER TO A DUMP THAT I WAS 2 YEARS AGO IN PENNSYLVANIA
CONTAINING ASBESTOS WASTE. THIS DUMP BEGAN AFTER THE CIVIL WAR, FROM
MATERIAL OF A BYPRODUCT OF THE COMPANY MAKING MILK OF MAGNESIA, AND IN
ROUGHLY THE 1910 PERIOD OF TIME THEY ADDED ASBESTOS TO THE MAGNESIA AND
MADE A THERMAL INSULATION MATERIAL THAT WAS USED FOR DECADES AS ONE OF
THE MAJOR PIPE COVERINGS IN HIGH-TEMPERATURE EQUIPMENT. THE WASTE FROM
THAT WAS ADDED TO THE WASTE FROM THE INITIAL MILK OF MAGNESIA OPERATION
AND SUBSEQUENTLY, THE BUILDINGS WERE SOLD TO TWO OTHER ASBESTOS
COMPANIES WHICH IN TURN DUMPED THEIR WASTE ON IT. IT IS ABOUT 12 BLOCKS
LONG, AND SNAKES THROUGH THE CENTER OF TWON RISING PERHAPS 50 FEET. IN
SAMPLES I TOOK FROM THAT DUMP, EVERYONE THAT I PICKED UP HAD MEASURABLE
AMOUNTS OF ASBESTOS, FROM LESS THAT 10 PERCENT TO SOMETIMES 20 PERCENT.
THE DUMP, OR THE NEIGHBORHOOD GOES INTO THE DUMP
SENATOR CHAFEE. WHERE IS THIS ATTRACTIVE COMMUNITY? THE DUMP GOES
DOWN THE MAIN STREET?
DR. NICHOLSON. IT IS WITHIN TWO BLOCKS OF THE INTERSECTION OF ALDAN,
PA., ONE OF THE SUBURBAN COMMUNITIES OF PHILADELPHIA. THE KIDS IN THAT
AREA GO INTO THE DUMP TO MINE IT FOR THE OLD MILK OF MAGNESIA BOTTLES
BECAUSE THEY HAVE VALUE. THE MATERIAL ITSELF WAS USED AS A SUBSURFACE
FOR A BASKETBALL COURT IN THE COMMUNITY. IT IS SOMETHING THAT IN
TODAY'S VIEW WOULD BE UNBELIEVABLE TO HAVE HAPPEN, BUT IT DID. WHATEVER
IS DONE WITH THAT DUMP, THE KIDS THAT WERE SCRATCHING IN THAT SURFACE
ARE IN RISK FOR A UNIQUE CANCER THAT CAN DIRECTLY BE ASSOCIATED WITH
ASBESTOS EXPOSURE.
IT WAS ACTUALLY UNIQUELY ASSOCIATED WITH ASBESTOS ON THE BASIS OF A
STUDY IN 1960 IN WHICH THEY FOUND 47 CASES OF WHAT IS A VERY RARE
DISEASE, PERHAPS 1 IN 10,000 GETS, IN A MINING COMMUNITY WHERE HALF THE
PEOPLE WHO DEVELOPED THE DISEASE WORKED IN THE MINES, BUT THE OTHER HALF
SIMPLY LIVED IN THE NEIGHBORHOOD, SOME OF THEM PLAYING ON DUMPS OF THE
MINES THEMSELVES AS CHILDREN ANDWHO, 20 OR 30 YEARS LATER, FROM THAT
EXPOSURE, DEVELOPED DISEASE. IT IS RARELY FOUND IN THE ABSENCE OF
ASBESTOS EXPOSURE BUT IT IS FOUND IN THE PRESENCE OF VERY LOW EXPOSURE,
SU-FICIENTLY LOW THAT THERE IS CONCERN FOR THE KIDS THAT I HAVE
JUSTDESCRIBED.
SENATOR CHAFEE. I THINK WE HAVE GOT THE VERDICT FROM YOUR ORIGINAL
TESTIMONY.
DR. NICHOLSON. BUT ONE IMPORTANT POINT THAT I WOULD LIKE TO EMPHASIZE
HERE IS THAT IN MANY OF THESE CIRCUMSTANCES, THE HEALTH EFFECTS WHICH
ARE OF CONCERN -- WHETHER THEY CAN BE DIRECTLY ATTRIBUTED OR NOT -- CAN
BE 20,30,40 YEARS LATER. THE NEED IS THAT THAT ALSO BE TAKEN INTO
CONSIDERATION WHEN COMPENSATING VICTIMS OF SUCH EXPOSURE. I WOULD LIKE
TO ALSO EMPHASIZE THE NEED TO PROVIDE MORE THAN SIMPLY DIRECT MEDICAL
COST OR PROPERTY DAMAGE COMPENSATION FOR INDIVIDUALS BECAUSE THE LOSS OF
EARNING IS A VERY IMPORTANT ASPECT.
WHEN ONE WRITES TO THEIR FAMILIES, OFTEN AFTER A DEATH OF AN
INDIVIDUAL FOR ASBESTOS-RELATED OR OTHER OCCUPATIONAL DISEASE, THE
ANSWER COMES BACK FROM THE WIDOW IN A TRAILER PARK COURT OR SOME OTHER
INADEQUATE FAMILY CIRCUMSTANCE.
IN GENERAL, THE PROVISIONS OF THIS BILL THAT WOULD ELIMINATE THE
POTENTIAL FOR SUCH HUMAN DISEASE ARE ADMIRABLE, AND I STRONGLY SUPPORT
IT. I THANK YOU.
SENATOR CHAFEE. YOU HAVE RAISED SOME DIFFICULT PROBLEMS HERE,
PARTICULARLY THE LONGEVITY OF THE CAUSALITY EFFECTS OF SOME OF THESE
DISPOSAL SITES. WE APPRECIATE YOUR TESTIMONY.
THAT SPECIFIC EXAMPLE YOU GAVE OF THE DISPOSAL SITE OF THE DIOXIN
MATERIAL, THAT MUST HAVE BEEN BEFORE RCRA. IT MUST HAVE BEEN.
MR. NICHOLSON. THEY WERE DISPOSING OF IT AS RECENT AS THE NEW RCRA.
SENATOR CHAFEE. IN THAT SITE?
MR. NICHOLSON. YES. IT GOES INTO MORE RECENT TIME, ALTHOUGH THE MAJOR
DISPOSAL WAS IN THE LATE SIXTIES. IT WAS ONLY WHEN THE PROHIBITION OF
THE USE OF 245( FOR THE SPRAYING OF RANGE LAND AND TREES AND DECONTROL
IN OREGON THAT THEY CEASED PRODUCTION.
SENATOR CHAFEE. DOES DIOXIN HAVE A REDUCED TOXICITY OVER YEARS?
MR. NICHOLSON. IT CAN BE DEGRADED TO SOME EXTENT, BUT IN MOST
CIRCUMSTANCES THAT OPPORTUNITY DOESN'T OCCUR. YOU ARE LOOKING AT
MATERIAL THAT ENTERS WATER SYSTEMS, ADHERING TO PARTICLES IN THE
SEDIMENT, WHICH CAN THEN BE INCORPORATED THROUGH THE FOOD CHAIN BY THE
VARIOUS BIOTA AND POTENTIALLY REACH HUMAN CONSUMPTION.
SENATOR CHAFEE. THAT KIND OF A LEGACY WE HAVE LEFT IN SOUTH VIETNAM.
NR. NICHOLSON. THAT IS RIGHT, AND THE OBVIOUS CONCERN IS THERE, AS
WELL AS IN INDIVIDUALS IN THIS COUNTRY WHO WERE EXPOSED AT THAT TIME.
BECAUSE IN ADDITION TO THE ACUTE EFFECTS WHICH OCCUR, THERE ARE ALSO
OTHER PROBLEMS.
SENATOR CHAFEE. IN THIS COUNTRY, WHOEVER WAS AFFECTED BY IT, THEY
WERE AFFECTED THROUGH HANDLING OF THE MATERIAL, WHEREAS YOU JUST SPEWED
IT OUT, AS I UNDERSTAND IT IN VIETNAM AT THAT TIME. THAT WAS THE
DEFILAGE WASN'T IT?
MR. NICHOLSON. YES. THAT IS CORRECT. IT WAS A CONTAMINANT OF THE
DEFILAGE, THE DIOXIN IS THE CONTAMINANT OF THE 245( THAT WAS THE
PRINCIPAL DEFOLIANT AGENT.
SENATOR CHAFEE. THIS 1480 DOES HAVE A STATUTE OF LIMITATIONS WHICH
RUNS 6 YEARS FROM THE DISCOVERY OF THE INJURY.
MR. NICHOLSON. THAT IS NOT A PROBLEM.
SENATOR CHAFEE. THE DISCOVERY COULD COME 50 YEARS AFTER THE EXPOSURE
UNDER THE ILLUSTRATIONS YOU GAVE.
MR. NICHOLSON. THAT IS CORRECT. IT IS USUALLY SHORT TERM BETWEEN
DISCOVERY AND DEATH IN MANY CASES. IT IS A PROBLEM IN MANY CASES WITH
CANCER.
SENATOR CHAFEE. THANK YOU VERY MUCH, DOCTOR, FOR TAKING THE TROUBLE
TO COME DOWN. WE APPRECIATE IT. I DON'T HAVE ANY FURTHER QUESTIONS.
WE WILL TRY TO WORK OUT A SORT OF COMPENSATION SYSTEM FOR PEOPLE WHO
HAVE SUFFERED FROM SUCH EXPOSURE, NOT ONLY TRYING TO GET THE LIABILITY,
BUT ONCE YOU GET THAT TRYING TO FIGURE OUT THE EXACT COMPENSATION, WHICH
PRESENTS A LOT OF PROBLEMS.
IT IS A DIFFICULT AREA WE ARE IN. THANK YOU, BOTH, GENTLEMEN.
THAT COMPLETES THE HEARINGS TODAY. WE DON'T HAVE ANY OTHER HEARINGS
SCHEDULED ON THIS MATTER.
(WHEREUPON, AT 11:40 A.M., THE SUBCOMMITTEES ADJOURNED, SUBJECT TO
THE CALL OF THE CHAIR.)
(STATEMENTS SUBMITTED FOR THE RECORD BY TODAY'S WITNESSES AND OTHERS
FOLLOW:)
STATEMENT ON SUPERFUND LEGISLATION
790907
790828
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 001 OF 39
FRIEDMAN F B
GARRETT T L
CHEMICAL MANUFACTURERS ASSOCIATION 1825 CONNECTICUT AVENUE, N.W.
WASHINGTON, D.C. 20009
U.S. SENATE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS SUBCOMMITTEES
ON ENVIRONMENTAL POLLUTION AND RESOURCE PROTECTION
COVINGTON AND BURLING 888 SIXTEENTH STREET N.W. WASHINGTON, D.C.
20006
104672
HEARING
CORRESPONDENCE
SENATE HEARING
TITLE PAGE OMITTED
STATEMENT ON SUPERFUND LEGISLATION
790907
790828
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 002 OF 39
FRIEDMAN F B
GARRETT T L
CHEMICAL MANUFACTURERS ASSOCIATION 1825 CONNECTICUT AVENUE, N.W.
WASHINGTON, D.C. 20009
U.S. SENATE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS SUBCOMMITTEES
ON ENVIRONMENTAL POLLUTION AND RESOURCE PROTECTION
COVINGTON AND BURLING 888 SIXTEENTH STREET N.W. WASHINGTON, D.C.
20006
104673
HEARING
CORRESPONDENCE
SENATE HEARING
MY NAME IS FRANK B. FRIEDMAN. I AM THE MANAGER OF EXTERNAL AFFAIRS,
OCCUPATIONAL AND ENVIRONMENTAL PROTECTION OF THE ATLANTIC RICHFIELD
COMPANY, AND FORMERLY DIRECTOR, ENVIRONMENTAL, HEALTH AND SAFETY OF ARCO
CHEMICAL COMPANY, A DIVISION OF ATLANTIC RICHFIELD. I AM ALSO A MEMBER
OF THE ENVIRONMENTAL MANAGEMENT COMMITTEE OF THE CHEMICAL MANUFACTURERS
ASSOCIATION (CMA). TODAY I AM SPEAKING ON BEHALF OF CMA, A NONPROFIT
TRADE ASSOCIATION HAVING 190 U.S. COMPANY MEMBERS THAT REPRESENT MORE
THAN 90 PERCENT OF THE PRODUCTION CAPACITY OF BASIC INDUSTRIAL CHEMICALS
WITHIN THIS COUNTRY.
WE COMMEND YOU FOR HOLDING ADDITIONAL HEARINGS ON THE QUESTION OF
COMPENSATION AND LIABILITY LEGISLATION FOR RELEASES OF TOXIC OR
HAZARDOUS SUBSTANCES. THIS IS A COMPLEX SUBJECT THAT MERITS THOROUGH
CONGRESSIONAL STUDY.
OUR PROBLEMS WITH THE ULTRAFUND APPROACH HAVE BEEN EXPLAINED IN
PREVIOUS COMMENTS BEFORE YOUR SUBCOMMITTEE. LET ME BRIEFLY SUMMARIZE
SOME OF THESE PROBLEMS PRIOR TO SPECIFICALLY ADDRESSING S.1480.
FIRST, OIL SPILLS SHOULD BE HANDLED SEPARATELY FROM CHEMICAL SPILLS.
THERE ARE A NUMBER OF SIGNIFICANT DIFFERENCES BETWEEN OIL AND CHEMICALS
WHICH JUSTIFY THEIR SEPARATE LEGISLATIVE CONSIDERATION.
STATEMENT ON SUPERFUND LEGISLATION
790907
790828
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 003 OF 39
FRIEDMAN F B
GARRETT T L
CHEMICAL MANUFACTURERS ASSOCIATION 1825 CONNECTICUT AVENUE, N.W.
WASHINGTON, D.C. 20009
U.S. SENATE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS SUBCOMMITTEES
ON ENVIRONMENTAL POLLUTION AND RESOURCE PROTECTION
COVINGTON AND BURLING 888 SIXTEENTH STREET N.W. WASHINGTON, D.C.
20006
104674
HEARING
CORRESPONDENCE
SENATE HEARING
AMONG THESE ARE MODE OF TRANSPORTATION; NORMAL BULK OF SHIPMENTS;
NUMBER OF SHIPMENTS; CHARACTERISTICS OF THE MATERIALS THEMSELVES
(INCLUDING UNIFORMITY, DISPERSAL, PURITY, ETC.); THE LIKELIHOOD OF
PROMPT REMEDIAL ACTION BY THE SPILLER; AND THE PROBABILITY OF THE
SPILLERS IDENTITY BEING KNOWN.
MOREOVER, THE CONGRESS HAS CONSIDERED THE QUESTION OF OIL SPILL
LIABILITY OVER A SEVERAL YEAR PERIOD. THE SAME THOROUGH CONSIDERATION
HAS NOT BEEN GIVEN TO CHEMICAL SPILLS.
SECOND, CHEMICAL SPILLS SHOULD BE HANDLED SEPARATELY FROM WASTE
DISPOSAL INCIDENTS. THE EFFECTS, MITIGATION TECHNIQUES AND REMEDIES FOR
EACH SITUATION ARE VERY DIFFERENT IN NATURE AND MERIT SEPARATE
LEGISLATIVE CONSIDERATION. CONGRESS TOOK NOTE OF THESE DIFFERENCES WHEN
IT DECIDED TO DEAL WITH SPILLS AND DISPOSAL INCIDENTS IN TWO DIFFERENT
STATUTES, THE FEDERAL WATER POLLUTION CONTROL ACT AND THE RESOURCE
CONSERVATION AND RECOVERY ACT. THERE IS NO REASON TO CHANGE THIS
POLICY.
THIRD, THERE IS NO NEED TO ENACT A NEW FEDERAL PROGRAM FOR SPILLS OF
HAZARDOUS SUBSTANCES. (SEE ATTACHMENT A.) LAST YEAR WE WORKED WITH EPA
AND THE APPROPRIATE CONGRESSIONAL COMMITTEES TO SECURE NEW, MORE
WORKABLE LEGISLATIVE LANGUAGE IN SECTION 311 OF THE CLEAN WATER ACT.
CONGRESS ADOPTED THESE CHANGES.
STATEMENT ON SUPERFUND LEGISLATION
790907
790828
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 004 OF 39
FRIEDMAN F B
GARRETT T L
CHEMICAL MANUFACTURERS ASSOCIATION 1825 CONNECTICUT AVENUE, N.W.
WASHINGTON, D.C. 20009
U.S. SENATE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS SUBCOMMITTEES
ON ENVIRONMENTAL POLLUTION AND RESOURCE PROTECTION
COVINGTON AND BURLING 888 SIXTEENTH STREET N.W. WASHINGTON, D.C.
20006
104675
HEARING
CORRESPONDENCE
SENATE HEARING
SECTION 311, AS AMENDED, PROVIDES A COMPREHENSIVE SYSTEM OF LAW TO
ADDRESS PROBLEMS WHICH RESULT FROM SPILLS OF HAZARDOUS MATERIALS. THIS
SECTION -- THE PRODUCT OF SOME SEVEN YEARS OF LEGISLATIVE STUDY,
IMPLEMENTATION EFFORTS AND LEGAL TESTS -- AUTHORIZES A $35 MILLION FUND
TO CLEAN UP AND REPAIR SPILL DAMAGE; PENALTIES FOR VIOLATIONS;
RECOVERY OF FUND MONEY FROM WRONG-DOERS; AND INCENTIVES FOR SAFE
HANDLING, PROMPT REPORTING AND IMMEDIATE CLEANUP. FURTHERMORE, THERE IS
BACKUP AUTHORITY IN SECTION 504 OF THE CLEAN WATER ACT. THIS SECTION,
WHICH NEVER HAS BEEN FUNDED, AUTHORIZES $10 MILLION FOR THE
ADMINISTRATOR TO PREVENT, LIMIT OR MITIGATE IMMINENT OR SUBSTANTIAL
DANGER TO PUBLIC HEALTH OR WELFARE CAUSED BY THE RELEASE INTO THE
ENVIRONMENT OF ANY POLLUTANT. WHAT IS NEEDED IS NOT A REWRITING OF
LEGISLATION IN THIS AREA BUT CONGRESSIONAL SUPPORT THROUGH FULL FUNDING
OF THE AUTHORIZED MONIES CALLED FOR IN BOTH 311(K) AND 504. MOREOVER,
NO ADDITIONAL LEGISLATION ON HAZARDOUS SUBSTANCES SPILLS SHOULD BE
CONSIDERED UNTIL THE STUDY MANDATED BY THE 1978 AMENDMENTS TO THE CLEAN
WATER ACT IS COMPLETED.
I WOULD ALSO POINT OUT THAT THE LIMITED DATA THAT IS AVAILABLE
INDICATES THAT, IN THE CASE OF HAZARDOUS SUBSTANCE SPILLS, THE SPILLER
ALREADY IS PAYING ALMOST ALL THE COST OF CLEANUP.
STATEMENT ON SUPERFUND LEGISLATION
790907
790828
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 005 OF 39
FRIEDMAN F B
GARRETT T L
CHEMICAL MANUFACTURERS ASSOCIATION 1825 CONNECTICUT AVENUE, N.W.
WASHINGTON, D.C. 20009
U.S. SENATE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS SUBCOMMITTEES
ON ENVIRONMENTAL POLLUTION AND RESOURCE PROTECTION
COVINGTON AND BURLING 888 SIXTEENTH STREET N.W. WASHINGTON, D.C.
20006
104676
HEARING
CORRESPONDENCE
SENATE HEARING
ACCORDING TO AN ARTHUR D. LITTLE STUDY DONE FOR EPA, 90 PERCENT OF
THE COST OF SUCH CLEANUP IS CURRENTLY PAID FOR BY INDUSTRY.
FOURTH, THE CLEANUP OF ABANDONED AND INACTIVE WASTE SITES SHOULD BE
ACCOMPLISHED WITH FEDERAL AND STATE FUNDS. THE USE OF GENERAL REVENUE
FUNDS IS APPROPRIATE FOR REASONS OF EQUITY AND SOUND PUBLIC POLICY.
HAZARDOUS WASTES ARE NOT JUST THE PRODUCTS OF THE CHEMICAL INDUSTRY.
THE EPA HAS IDENTIFIED 17 INDUSTRIES WHOSE OPERATIONS RESULT IN THE
GENERATION OF SUCH WASTES. HAZARDOUS WASTES HAVE BEEN AND WILL CONTINUE
TO BE GENERATED BY A WIDE RANGE OF INDUSTRIES, BUSINESS CONCERNS,
GOVERNMENT AGENCIES AND DEFENSE INSTALLATIONS, MUNICIPALITIES, HOSPITALS
AND SCIENTIFIC FACILITIES. THE PROBLEM OF PREVIOUSLY ABANDONED SITES
AND DAMAGES TO HEALTH AND THE ENVIRONMENT FROM PREVIOUSLY LEGAL METHODS
OF DISPOSAL AND ESTABLISHED PRACTICES IS CLEARLY SOCIETAL IN NATURE AND
IT IS ONLY FAIR THAT THIS GENERAL RESPONSIBILITY BE MET THROUGH THE
APPLICATION OF PUBLIC MONIES.
AT THE OUTSET, WE WISH TO REITERATE THAT WE SUPPORT LEGISLATION THAT
WILL DEAL WITH THE SPECIFIC PROBLEMS OF "ORPHAN" SITES. WE BELIEVE
EXISTING LAW DEALING WITH OLD "ABANDONED" DUMPSITES IS NOT ADEQUATE AND
THAT NEW LEGISLATION IS NECESSARY TO ADDRESS THIS ORPHAN SITE PROBLEM.
HOWEVER, S.1480 IS NOT THE ANSWER.
STATEMENT ON SUPERFUND LEGISLATION
790907
790828
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 006 OF 39
FRIEDMAN F B
GARRETT T L
CHEMICAL MANUFACTURERS ASSOCIATION 1825 CONNECTICUT AVENUE, N.W.
WASHINGTON, D.C. 20009
U.S. SENATE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS SUBCOMMITTEES
ON ENVIRONMENTAL POLLUTION AND RESOURCE PROTECTION
COVINGTON AND BURLING 888 SIXTEENTH STREET N.W. WASHINGTON, D.C.
20006
104677
HEARING
CORRESPONDENCE
SENATE HEARING
SECTION 3(A)(2) PROVIDES THAT "THE RELEASE OR DISPOSAL OF ANY
HAZARDOUS SUBSTANCE. . .IS PROHIBITED." WHILE ON ITS FACE THIS LANGUAGE
MAY APPEAR TO BE SIMILAR TO THAT OF SECTION 311(B)(3), IT CLEARLY GOES
FAR BEYOND THAT SECTION. FIRST, THIS PROHIBITION IN SECTION 3(A)(2) IS
IN ADDITION TO AN EXPRESS PROHIBITION ON DISCHARGES "IN VIOLATION" OF
SECTION 3(A)(2) OF THE CLEAN WATER ACT. . ." THUS, IT WAS OBVIOUSLY
INTENDED TO EXPAND THE SCOPE OF SECTION 311'S PROHIBITIONS. SECOND, THE
BILL'S DEFINITIONS OF "RELEASE," "DISPOSAL" AND "HAZARDOUS SUBSTANCES"
ARE MUCH MORE EXPANSIVE THAN THEIR COUNTERPARTS UNDER SECTION 311. THE
RESULT OF THIS DRAFTING IS THAT SECTION 3(A)(2) AS NOW WRITTEN WOULD
LITERALLY OVERTURN VIRTUALLY ALL EXISTING ENVIRONMENTAL LAWS, WHICH REST
NOT ON A FLAT PROHIBITION AS PROPOSED HERE, BUT ON CAREFULLY STRUCTURED
AND SPECIFIC LIMITS ON CERTAIN DISCHARGES.
THE ENTIRE STRUCTURE OF ENVIRONMENTAL LAW SHOULD NOT BE REWRITTEN IN
AN EFFORT TO DEAL WITH A SPECIFIC PROBLEM. S.1480'S APPROACH
JEOPARDIZES EARLY PASSAGE OF NECESSARY LEGISLATION TO RESOLVE THE
PROBLEM OF "ORPHAN" SITES. THERE IS NO BASIS FOR REOPENING THE CLEAN
AIR AND WATER ACTS AND OTHER ENVIRONMENTAL AND HEALTH LEGISLATION WHEN
MORE SIMPLE AND DIRECT SOLUTIONS EXIST.
STATEMENT ON SUPERFUND LEGISLATION
790907
790828
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 007 OF 39
FRIEDMAN F B
GARRETT T L
CHEMICAL MANUFACTURERS ASSOCIATION 1825 CONNECTICUT AVENUE, N.W.
WASHINGTON, D.C. 20009
U.S. SENATE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS SUBCOMMITTEES
ON ENVIRONMENTAL POLLUTION AND RESOURCE PROTECTION
COVINGTON AND BURLING 888 SIXTEENTH STREET N.W. WASHINGTON, D.C.
20006
104678
HEARING
CORRESPONDENCE
SENATE HEARING
ANY HAZARDOUS SUBSTANCE INTO THE ENVIRONMENT THEREBY
REPLACING THE PRESENT AND WELL ESTABLISHED SYSTEM OF
REGULATING THESE SUBSTANCES ON THE BASES OF TECHNOLOGY
AND DANGER TO PUBLIC HEALTH AND THE ENVIRONMENT.
THERE IS NO LEGISLATIVE RECORD OR ANY BASIS TO SUPPORT A NEED FOR THE
SWEEPING REALEASE CONCEPT. IT IS A FUNDAMENTAL DEPARTURE FROM PREVIOUS
LEGISLATIVE PRINCIPLES. IT WILL CONFLICT WITH, CONFUSE, AND DUPLICATE
MUCH OF THE ENVIRONMENTAL LEGISLATION NOW ON THE BOOKS. (SEE ATTACHMENT
B.)
THE ALL-ENCOMPASSING PROHIBITION ON THE RELEASE OR DISPOSAL OF ANY
HAZARDOUS SUBSTANCE WOULD HAVE THE INEVITABLE EFFECT OF OVERTURNING THE
ENTIRE BASIS OF EXISTING ENVIRONMENTAL LEGISLATION AND REGULATIONS.
THIS PROHIBITION CUTS ACROSS THE GAMUT OF ENVIRONMENTAL, HEALTH AND
SAFETY STATUTES, INCLUDING THE CLEAN AIR ACT, THE CLEAN WATER ACT, RCRA,
MPRSA, FIFRA, FDA, OSHA, AND TSCA. THESE LAWS PRESENTLY PLACE SPECIFIC
LIMITS UPON RELEASES INTO THE ENVIRONMENT BASED UPON A CAREFUL
ASSESSMENT OF THE DANGER TO PUBLIC HEALTH AND WELFARE, THE AVAILABILITY
OF CONTROL TECHNOLOGY, AND OTHER FACTORS. THE BILL WOULD REPEAL LIMITS
ON EMISSIONS AND DISCHARGES THAT EPA HAS FOUND TO BE ADEQUATE TO PROTECT
PUBLIC HEALTH AND WELFARE, AND WOULD MEAN THAT BILLIONS OF DOLLARS
INVESTED BY INDUSTRY TO COMPLY WITH EXISTING REQUIREMENTS WILL HAVE BEEN
WASTED.
STATEMENT ON SUPERFUND LEGISLATION
790907
790828
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 008 OF 39
FRIEDMAN F B
GARRETT T L
CHEMICAL MANUFACTURERS ASSOCIATION 1825 CONNECTICUT AVENUE, N.W.
WASHINGTON, D.C. 20009
U.S. SENATE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS SUBCOMMITTEES
ON ENVIRONMENTAL POLLUTION AND RESOURCE PROTECTION
COVINGTON AND BURLING 888 SIXTEENTH STREET N.W. WASHINGTON, D.C.
20006
104679
HEARING
CORRESPONDENCE
SENATE HEARING
IT ALSO WOULD RENDER UNLAWFUL THAT CONDUCT WHICH IS NOW EXPRESSLY
PERMITTED UNDER FEDERAL AND STATE PROGRAMS. THE BLANKET PROHIBITION ON
ANY RELEASE PROVIDES NO SAFE HARBOR FOR EXISTING STATUTORY SYSTEMS. FOR
EXAMPLE, RELEASES IN COMPLIANCE WITH VALID FEDERAL AND STATE WATER AND
AIR PERMITS WOULD SUBJECT THE DISCHARGER TO UNLIMITED LIABILITY.
UNDER THE CLEAN AIR ACT (CAA), FOR EXAMPLE, THE NATURE AND AMOUNT OF
REGULATION ARE CAREFULLY TAILORED TO INSURE THAT THE PUBLIC HEALTH IS
PROTECTED, AND THAT AVAILABLE POLLUTION CONTROL TECHNOLOGY IS UTILIZED.
IT WOULD BE TOTALLY INCONSISTENT WITH THE STATUTORY SCHEME EMBODIED IN
THE CAA TO PROHIBIT THE EMISSION OF ANY HAZARDOUS SUBSTANCE -- EVEN
THOUGH SUCH EMISSIONS CANNOT BE REDUCED BY AVAILABLE CONTROL TECHNOLOGY,
AND NEED NOT BE FURTHER REDUCED IN ORDER TO PROTECT THE PUBLIC HEALTH
AND ENVIRONMENT.
THE CLEAN WATER ACT (CWA) CONTAINS SIMILAR PROVISIONS DESIGNED TO
PROTECT THE PUBLIC HEALTH AND WELFARE AND TO FORCE THE UTILIZATION OF
AVAILABLE CONTROL TECHNOLOGY. THE REGULATORY REGIME ESTABLISHED BY THE
CWA DOES NOT BAN THE DISCHARGE OF POLLUTANTS. INSTEAD, THE CONGRESS AND
THE EPA HAVE ESTABLISHED EXTENSIVE AND COMPLETE PROCEDURES AND
TECHNOLOGICAL REQUIREMENTS DESIGNED TO ASSURE THAT DISCHARGES OF
POLLUTANTS WILL NOT EXCEED LEVELS THAT MAY BE HARMFUL TO PUBLIC HEALTH
AND WELFARE. INDUSTRY HAS ALREADY SPENT BILLIONS OF DOLLARS TO INSTALL
THESE CONTROL TECHNOLOGIES. A BAN ON THE DISCHARGE OF ANY HAZARDOUS
SUBSTANCE WOULD BE INCONSISTENT WITH THIS STATUTORY SCHEME, AND WOULD
MEAN THAT VIRTUALLY ALL OF THESE EXPENDITURES FOR POLLUTION CONTROL
WOULD HAVE BEEN WASTED.
STATEMENT ON SUPERFUND LEGISLATION
790907
790828
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 009 OF 39
FRIEDMAN F B
GARRETT T L
CHEMICAL MANUFACTURERS ASSOCIATION 1825 CONNECTICUT AVENUE, N.W.
WASHINGTON, D.C. 20009
U.S. SENATE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS SUBCOMMITTEES
ON ENVIRONMENTAL POLLUTION AND RESOURCE PROTECTION
COVINGTON AND BURLING 888 SIXTEENTH STREET N.W. WASHINGTON, D.C.
20006
104680
HEARING
CORRESPONDENCE
SENATE HEARING
ONE DISCRETE EXAMPLE EXEMPLIFIES THIS INCONSISTENCY: LAST YEAR
CONGRESS AMENDED CWA SECTION 311 TO NARROW THE DEFINITION OF "DISCHARGE"
SPECIFICALLY TO EXCLUDE FROM SECTION 311(B)(3)'S PROHIBITION DISCHARGES
OF HAZARDOUS SUBSTANCES PURSUANT TO AN NPDES PERMIT. S.1480'S BROAD
SWEEP WOULD NOW PROHIBIT THOSE SAME PERMITTED DISCHARGES AND CONTRADICT
THE 1978 AMENDMENT TO SECTION 311
THE SAME IS TRUE WITH THE MARINE PROTECTION, RESEARCH AND SANCTUARIES
ACT (MPRSA). IT OBVIOUSLY WAS NOT THE INTENT OF MPRSA TO PROHIBIT THE
DUMPING OF ALL HAZARDOUS SUBSTANCES AS DEFINED UNDER S.1480. INSTEAD,
MPRSA ESTABLISHED A COMPREHENSIVE PERMIT SYSTEM WHICH REGULATES SUCH
DISPOSAL. THE LIST COULD GO ON AND ON. A MORE DETAILED EXPLANATION OF
THIS SUBJECT IS INCLUDED IN ATTACHMENT C.
THE RELEASE CONCEPT SHOULD NOT MOVE FORWARD AT ALL WITHOUT EXTENSIVE
REVIEW OF ITS IMPACT ON AND RELATIONSHIP WITH ALL OF THE OTHER ACTS
WHICH WOULD BE EFFECTED. INDEED, THERE IS NO JUSTIFICATION FOR
REOPENING THE CLEAN AIR ACT, CLEAN WATER ACT, RCRA, FIFRA, OSHA, TSCA
AND MPRSA IN ORDER TO ADDRESS THE ORPHAN DUMPSITE PROBLEM. INSTEAD, AS
CMA ADVOCATED IN ITS JULY 19 COMMENTS, THE FOCUS SHOULD BE NARROWED TO
SOLVING THE PROBLEM NOT ADDRESSED BY EXISTING LAW -- "ORPHAN" DUMPSITES.
STATEMENT ON SUPERFUND LEGISLATION
790907
790828
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 010 OF 39
FRIEDMAN F B
GARRETT T L
CHEMICAL MANUFACTURERS ASSOCIATION 1825 CONNECTICUT AVENUE, N.W.
WASHINGTON, D.C. 20009
U.S. SENATE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS SUBCOMMITTEES
ON ENVIRONMENTAL POLLUTION AND RESOURCE PROTECTION
COVINGTON AND BURLING 888 SIXTEENTH STREET N.W. WASHINGTON, D.C.
20006
104681
HEARING
CORRESPONDENCE
SENATE HEARING
B. SECOND, THE TOXIC TORT LAW PROVISION OF THIS BILL IS UNWARRANTED.
S.1480 WOULD CREATE A FEDERAL TOXIC TORT LAW WHICH WOULD SUPERSEDE AND
PREEMPT STATE TORT LAWS RELATING TO TOXICS.
THIS CONCEPT SHOULD NOT BE ADOPTED BECAUSE:
1. THE RECORD DOES NOT INDICATE THAT STATE TORT LAWS ARE UNWORKABLE
OR COULD NOT BE ADOPTED TO SOLVE ANY PROBLEM WHICH MAY DEVELOP. THIS IS
AN AREA WHICH IS TRADITIONALLY REGULATED BY THE STATES UNDER OUR
CONSTITUTIONAL SYSTEM OF GOVERNMENT. FEDERAL INTERVENTION WOULD BE
TOTALLY INAPPROPRIATE WITHOUT INTENSIVE PRIOR STUDY, HEARINGS, AND
DELIBERATION.
2. JOINT AND SEVERAL LIABILITY FOR ALL CONSEQUENCES OF A PRODUCT IN
ITS DISTRIBUTION IS UNWARRANTED. JOINT AND SEVERAL LIABILITY -- MAKING
ONE DEFENDANT PAY FOR THE WRONGS OF ALL OTHER DEFENDANTS REGARDLESS OF
RESPONSIBILITY -- IS UNJUST AND PUNITIVE. THE MODERN CONCEPT OF
COMPARATIVE RESPONSIBILITY SHOULD BE SUBSTITUTED. JOINT AND SEVERAL
LIABILITY, IN COMBINATION WITH THE OVERLY BROAD DEFINITION OF PERSONS
LIABLE, COULD MEAN THAT A PERSON WITH A PERIPHERAL OR EVEN VIRTUALLY
NONEXISTENT RELATIONSHIP TO DAMAGES COULD BE HELD RESPONSIBLE FOR ALL
COSTS.
STATEMENT ON SUPERFUND LEGISLATION
790907
790828
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 011 OF 39
FRIEDMAN F B
GARRETT T L
CHEMICAL MANUFACTURERS ASSOCIATION 1825 CONNECTICUT AVENUE, N.W.
WASHINGTON, D.C. 20009
U.S. SENATE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS SUBCOMMITTEES
ON ENVIRONMENTAL POLLUTION AND RESOURCE PROTECTION
COVINGTON AND BURLING 888 SIXTEENTH STREET N.W. WASHINGTON, D.C.
20006
104682
HEARING
CORRESPONDENCE
SENATE HEARING
THUS, A COMPANY WITH EXTENSIVE ASSETS RESPONSIBLE FOR DISPOSING OF
ONE BARREL OF "HAZARDOUS WASTE" IN A LEAKING SITE COULD BE LIABLE FOR
ALL DAMAGES FROM 10,000 BARRELS IN THE SAME SITE IF THE DISPOSERS OF THE
OTHER BARRELS LACKED ASSETS, E.G. WERE JUDGEMENT PROOF.
3. MOREOVER, THE CONCEPTS OF CAUSATION ARE MOST TROUBLESOME. S.1480
WOULD NOT REQUIRE ANY SHOWING OF A CAUSAL RELATIONSHIP BETWEEN A
DEFENDANT'S ACTION AND THE ULTIMATE INJURY CLAIMED. THE MOST EXTREME
DEPARTURE FROM BASIC LEGAL PRINCIPLES CONCERNING CAUSATION INVOLVES
LIABILITY FOR MEDICAL EXPENSES "DUE TO PERSONAL INJURY." THE BILL
EXPRESSLY ABOLISHES WHAT IT CORRECTLY DESCRIBES AS "ORDINARY
REQUIREMENTS" FOR PROOF OF CAUSE IN FACT AND PROXIMATE CAUSE. INSTEAD,
IT WOULD IMPOSE A "REASONABLE RELATIONSHIP" TEST -- THAT "A REASONABLE
PERSON COULD CONCLUDE THAT THE MEDICAL EXPENSES AND THE INJURY OR
DISEASE WHICH CAUSED THEM ARE REASONABLY RELATED TO THE DISCHARGE,
RELEASE OR DISPOSAL."
THE CLAIMANT NEED NOT IDENTIFY THE SUBSTANCE CAUSING THE INJURY OR
DISEASE OR ITS SOURCE; HE NEED NOT DEMONSTRATE HOW THE SUBSTANCE
REACHED THE INJURED PARTY NOR EXPLAIN ITS ETIOLOGY IN THE INJURED PARTY.
IN SHORT, THE COEXISTENCE OF A DISEASE AND ANY RELEASE OF A HAZARDOUS
SUBSTANCE, WITHOUT MORE, WOULD RESULT IN LIABILITY FOR MEDICAL EXPENSES
FOR ANY PERSON WHO "CONTRIBUTED" TO THE RELEASE.
STATEMENT ON SUPERFUND LEGISLATION
790907
790828
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 012 OF 39
FRIEDMAN F B
GARRETT T L
CHEMICAL MANUFACTURERS ASSOCIATION 1825 CONNECTICUT AVENUE, N.W.
WASHINGTON, D.C. 20009
U.S. SENATE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS SUBCOMMITTEES
ON ENVIRONMENTAL POLLUTION AND RESOURCE PROTECTION
COVINGTON AND BURLING 888 SIXTEENTH STREET N.W. WASHINGTON, D.C.
20006
104683
HEARING
CORRESPONDENCE
SENATE HEARING
4. THE SCOPE OF LIABILITY IS EXCESSIVE. IT WOULD PERMIT RECOVERY
FOR BROADLY DEFINED CATEGORIES OF DAMAGES ASSOCIATED WITH THE DISCHARGE,
RELEASE, OR DISPOSAL OF A HAZARDOUS SUBSTANCE. LIABILITY FOR CLEAN-UP
COSTS WOULD APPARENTLY NOT REQUIRE ANY SHOWING OF CAUSATION; WHATEVER
COSTS ARE CLAIMED TO BE ASSOCIATED WITH THE DISCHARGE, RELEASE, OR
DISPOSAL COULD BE RECOVERED. DAMAGES FOR ECONOMIC LOSSES WOULD BE
AVAILABLE FOR ANY LOSSES "RESULTING FROM" THE DISCHARGE, RELEASE, OR
DISPOSAL -- A CAUSATION STANDARD THAT IS NOT FURTHER DEFINED.
IN ADDITION, THE SCOPE OF DAMAGES TO BE COVERED IS TOO BROAD AND THE
FINANCIAL AND INSURANCE ASPECT OF SUCH A SCOPE ARE UNCERTAIN. STANDARDS
AND GUIDANCE FOR GOVERNMENT CONTAINMENT AND EMERGENCY RESPONSE ARE SO
LOOSE AS TO BE ALMOST NONEXISTANT. S.1480 COULD LEAD TO MASSIVE AWARDS
OF DAMAGES BECAUSE OF ITS BROAD DEFINITIONS OF COMPENSABLE LOSSES. AS
STATED EARLIER, ANY MEDICAL EXPENSES "REASONABLY RELATED" TO A
DISCHARGE, RELEASE, OR DISPOSAL OF A HAZARDOUS SUBSTANCE MAY BE
RECOVERED, AS MAY "REHABILITATION COSTS." CLEAN-UP AND REMOVAL COSTS ARE
BROADLY DEFINED, AND THEIR AMOUNT IS ENTIRELY DEPENDENT ON DISCRETIONARY
ACTIONS TAKEN UNILATERALLY BY THE GOVERNMENT OR BY A SELF-APPOINTED
VOLUNTEER. THERE IS NO INCENTIVE IN THE BILL FOR EITHER THE GOVERNMENT
OR A PRIVATE PARTY TO LIMIT THE COSTS OF REMOVAL, CONTAINMENT, OR
EMERGENCY RESPONSE TO REASONABLE AMOUNTS ONCE A SOLVENT PARTY HAS BEEN
IDENTIFIED.
STATEMENT ON SUPERFUND LEGISLATION
790907
790828
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 013 OF 39
FRIEDMAN F B
GARRETT T L
CHEMICAL MANUFACTURERS ASSOCIATION 1825 CONNECTICUT AVENUE, N.W.
WASHINGTON, D.C. 20009
U.S. SENATE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS SUBCOMMITTEES
ON ENVIRONMENTAL POLLUTION AND RESOURCE PROTECTION
COVINGTON AND BURLING 888 SIXTEENTH STREET N.W. WASHINGTON, D.C.
20006
104684
HEARING
CORRESPONDENCE
SENATE HEARING
5. THE CONCEPT OF UNLIMITED LIABILITY IN THE CONTEXT OF THIS BILL IS
EXTRAORDINARY. AS PREVIOUSLY DISCUSSED JOINT AND SEVERAL LIABILITY
UNDER THIS BILL CAN RESULT IN EXTENSIVE LIABILITY FOR VERY LIMITED
WRONGDOING WITH ALMOST NO CONSIDERATION OF CAUSE. COMBINING THIS WITH
THE INCREDIBLE BROAD SCOPE OF DAMAGES THAT CAN BE COLLECTED UNDER THIS
BILL, UNLIMITED LIABILITY BECOMES A HEAVY BURDEN FOR EVEN THE LARGEST
COMPANIES.
C. THIRD, THE BILL RAISES MAJOR CONSTITUTIONAL ISSUES. OUR PREVIOUS
COMMENTS ON THE SERIOUS CONSTITUTIONAL ISSUES RAISED BY S.1341 ALSO
APPLY TO S.1480. THESE ISSUES ARE DISCUSSED IN DETAIL STARTING ON PAGE
33 OF OUR JULY 19 TESTIMONY.
FIRST, THE FEE PROVISIONS OF S.1480 ARE CONSTITUTIONALLY INFIRM.
ALTHOUGH THE CHEMICAL INDUSTRY IS NOT QUITE SO CLEARLY SINGLED OUT AS
THE PARTY RESPONSIBLE FOR OLD DUMPSITE PROBLEMS AS IS TRUE IN S.1341,
NEVERTHELESS THERE IS STILL A QUESTION OF WHETHER S.1480 IS AN ILLEGAL
BILL OF ATTAINDER. MOREOVER THE FEE PROVISIONS MAY WELL BE
UNCONSTITUTIONAL IN THAT THEY LEVY FEES WITHOUT REGARD TO FAIRNESS OR
BENEFITS DERIVED FROM THE FUND.
STATEMENT ON SUPERFUND LEGISLATION
790907
790828
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 014 OF 39
FRIEDMAN F B
GARRETT T L
CHEMICAL MANUFACTURERS ASSOCIATION 1825 CONNECTICUT AVENUE, N.W.
WASHINGTON, D.C. 20009
U.S. SENATE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS SUBCOMMITTEES
ON ENVIRONMENTAL POLLUTION AND RESOURCE PROTECTION
COVINGTON AND BURLING 888 SIXTEENTH STREET N.W. WASHINGTON, D.C.
20006
104685
HEARING
CORRESPONDENCE
SENATE HEARING
SECOND, THE IMPOSITION OF JOINT STRICT LIABILITY FOR OLD DUMPSITE
CONTAINMENT COSTS WITHOUT ALLOWING TRADITIONAL DEFENSES BASED ON PROPER
AND REASONABLE CONDUCT REQUIRES AN INNOCENT AND MINOR PARTICIPANT TO
UNFAIRLY BEAR THE WHOLE LIABILITY. THIS RETROACTIVE CHANGE IN LIABILITY
PRINCIPLES AMOUNTS TO EX POST FACTO DENIAL OF DUE PROCESS.
IN ADDITION, CRITICAL TERMS SUCH AS "RELEASE" AND "HAZARDOUS
SUBSTANCE" ARE MOST BROADLY DEFINED. THE TERM "ENVIRONMENT" IS NOT
DEFINED AT ALL AND IS SUBJECT TO UNCERTAIN CONJECTURE. SINCE CIVIL AND
CRIMINAL LIABILITIES CAN RESULT FROM THIS PROPOSED STATUTE, SUCH
VAGUENESS WOULD VIOLATE CONSTITUTIONAL PRINCIPLES OF DUE PROCESS.
INSTEAD OF A MASSIVE REWRITING OF EXISTING ENVIRONMENTAL STATUTES,
CMA URGES CONGRESS TO FOCUS ITS ATTENTION ON THE VERY REAL PROBLEM OF
"ORPHAN" HAZARDOUS WASTE DISPOSAL SITES. THESE ARE SITES WHICH PRESENT
AN IMMINENT HAZARD TO HUMAN HEALTH OR THE ENVIRONMENT AND NO ACTION IS
BEING TAKEN EITHER BECAUSE THERE IS NO KNOWN RESPONSIBLE PARTY OR THE
RESPONSIBLE PARTY IS UNABLE OR UNWILLING TO RESPOND.
WE BELIEVE EXISTING LAW IN THIS AREA IS NOT ADEQUATE AND THAT NEW
LEGISLATION IS NEEDED TO ADDRESS THE "ORPHAN" SITE PROBLEM.
STATEMENT ON SUPERFUND LEGISLATION
790907
790828
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 015 OF 39
FRIEDMAN F B
GARRETT T L
CHEMICAL MANUFACTURERS ASSOCIATION 1825 CONNECTICUT AVENUE, N.W.
WASHINGTON, D.C. 20009
U.S. SENATE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS SUBCOMMITTEES
ON ENVIRONMENTAL POLLUTION AND RESOURCE PROTECTION
COVINGTON AND BURLING 888 SIXTEENTH STREET N.W. WASHINGTON, D.C.
20006
104686
HEARING
CORRESPONDENCE
SENATE HEARING
WE PROPOSE CREATION OF A FEDERAL FUND TO PROVIDE FOR EMERGENCY
ASSISTANCE AND CONTAINMENT OF SUCH SITES. THIS FUND WOULD BE DERIVED
FROM FEDERAL APPROPRIATIONS, MATCHING FUNDS CONTRIBUTED BY THE STATES
AND WRONGFUL DUMPER.
WE THANK YOU FOR THE TIME TO PRESENT THE CHEMICAL INDUSTRY'S
POSITION. WE LOOK FORWARD TO WORKING WITH YOUR COMMITTEE OVER THE
COMING MONTHS. I WILL BE HAPPY TO ANSWER ANY QUESTIONS.
STATEMENT ON SUPERFUND LEGISLATION
790907
790828
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 016 OF 39
FRIEDMAN F B
GARRETT T L
CHEMICAL MANUFACTURERS ASSOCIATION 1825 CONNECTICUT AVENUE, N.W.
WASHINGTON, D.C. 20009
U.S. SENATE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS SUBCOMMITTEES
ON ENVIRONMENTAL POLLUTION AND RESOURCE PROTECTION
COVINGTON AND BURLING 888 SIXTEENTH STREET N.W. WASHINGTON, D.C.
20006
104687
HEARING
CORRESPONDENCE
SENATE HEARING
THE MAGNITUDE AND SCOPE OF THE PROBLEMS ASSOCIATED WITH SPILLS OF
HAZARDOUS SUBSTANCES HAS NOT YET BEEN ADEQUATELY DEFINED. ANALYSIS OF
THE DATA THAT IS AVAILABLE FAILS TO SHOW THE NEED FOR A HAZARDOUS
MATERIALS SPILLS SUPERFUND.
THE RESULTS OBTAINED FROM TWO STATE AGENCIES, THE ENVIRONMENTAL
PROTECTION AGENCY (EPA), AND THE CHEMICAL TRANSPORTATION EMERGENCY
CENTER (CHEMTREC), AN ORGANIZATION SPECIALLY DESIGNED TO DEAL WITH
CHEMICAL EMERGENCIES, FOLLOW:
I. TOTAL HAZARDOUS CHEMICAL SPILLS REPORTED TO EPA
TABLE OMITTED
STATEMENT ON SUPERFUND LEGISLATION
790907
790828
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 017 OF 39
FRIEDMAN F B
GARRETT T L
CHEMICAL MANUFACTURERS ASSOCIATION 1825 CONNECTICUT AVENUE, N.W.
WASHINGTON, D.C. 20009
U.S. SENATE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS SUBCOMMITTEES
ON ENVIRONMENTAL POLLUTION AND RESOURCE PROTECTION
COVINGTON AND BURLING 888 SIXTEENTH STREET N.W. WASHINGTON, D.C.
20006
104688
HEARING
CORRESPONDENCE
SENATE HEARING
THE CHEMICAL TRANSPORTATION EMERGENCY (CHEMTREC) SYSTEM, WHICH IS
TOTALLY INDUSTRY FUNDED, HAS PROVIDED HAZARDOUS MATERIAL SPILLS
ASSISTANCE SINCE 1971. CHEMTREC PROVIDES AUTHORITATIVE INFORMATION TO
PUBLIC AGENCIES AND TRANSPORTATION COMPANIES FACED WITH EMERGENCIES
INVOLVING CHEMICAL SHIPMENTS. MANNING A TOLL-FREE NUMBER
AROUND-THE-CLOCK, CHEMTREC'S COMMUNICATORS WORK WITH FILES ON MORE THAN
3,600 CHEMICALS AND 14,000 TRADE NAMES TO ADVISE THOSE ON THE SCENE WHAT
TO DO -- AND WHAT NOT TO DO -- TO CONTROL THE DEPARTMENT OF
TRANSPORTATION'S OWN EMERGENCY SYSTEM.
OF THE 1091 INCIDENTS REVIEWED, 45, OR 4.1 PERCENT, WERE CONSIDERED
REPORTABLE UNDER THE CRITERIA OF BULK SHIPMENTS.
TABLE OMITTED
III. SUMMARY: ILLINOIS ENVIRONMENTAL PROTECTION AGENCY'S (IEPA)
EMERGENCY ACTION CENTER INCIDENTS LOG BOOK
TABLE OMITTED
STATEMENT ON SUPERFUND LEGISLATION
790907
790828
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 018 OF 39
FRIEDMAN F B
GARRETT T L
CHEMICAL MANUFACTURERS ASSOCIATION 1825 CONNECTICUT AVENUE, N.W.
WASHINGTON, D.C. 20009
U.S. SENATE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS SUBCOMMITTEES
ON ENVIRONMENTAL POLLUTION AND RESOURCE PROTECTION
COVINGTON AND BURLING 888 SIXTEENTH STREET N.W. WASHINGTON, D.C.
20006
104689
HEARING
CORRESPONDENCE
SENATE HEARING
TABLE OMITTED
STATEMENT ON SUPERFUND LEGISLATION
790907
790828
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 019 OF 39
FRIEDMAN F B
GARRETT T L
CHEMICAL MANUFACTURERS ASSOCIATION 1825 CONNECTICUT AVENUE, N.W.
WASHINGTON, D.C. 20009
U.S. SENATE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS SUBCOMMITTEES
ON ENVIRONMENTAL POLLUTION AND RESOURCE PROTECTION
COVINGTON AND BURLING 888 SIXTEENTH STREET N.W. WASHINGTON, D.C.
20006
104690
HEARING
CORRESPONDENCE
SENATE HEARING
TABLE OMITTED
A. SPILLS OF HAZARDOUS CHEMICALS OR EXPLOSIONS -- DEPARTMENT OF
PUBLIC SAFETY/STATE POLICE RESPONSE --
1976 SIX MAJOR INCIDENTS; TWO INVOLVED RAILROAD DERAILMENTS.
1977 TWELVE MAJOR INCIDENTS; A NUMBER WERE TRANSPORTATION ACCIDENTS:
(A) FOUR INVOLVED RAILROAD INCIDENTS; AND (B) ONE TRUCK OVERTURNING
(FIRE AND EXPLOSION).
1978 TWENTY-EIGHT MAJOR INCIDENTS; THIRTEEN WERE TRANSPORTATION
ACCIDENTS, INCLUDING TRUCKS.
B. SPILLS INTO RECEIVING WATER -- NOT DETAINED ON SITE -- FROM WATER
POLLUTION CONTROL AGENCY --
1977 THREE MAJOR SPILLS; INVOLVING CHEMICAL PLANTS INTO RECEIVING
WATERS.
1978 FOUR MAJOR SPILLS; INVOLVING CHEMICAL PLANTS INTO RECEIVING
WATERS.
STATEMENT ON SUPERFUND LEGISLATION
790907
790828
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 020 OF 39
FRIEDMAN F B
GARRETT T L
CHEMICAL MANUFACTURERS ASSOCIATION 1825 CONNECTICUT AVENUE, N.W.
WASHINGTON, D.C. 20009
U.S. SENATE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS SUBCOMMITTEES
ON ENVIRONMENTAL POLLUTION AND RESOURCE PROTECTION
COVINGTON AND BURLING 888 SIXTEENTH STREET N.W. WASHINGTON, D.C.
20006
104691
HEARING
CORRESPONDENCE
SENATE HEARING
THE "RELEASE" CONCEPT OF S.1480 IS A FUNDAMENTAL DEPARTURE FROM THE
TECHNOLOGY-BASED REGULATION APPROACH OF THE CLEAN AIR ACT, CLEAN WATER
ACT, AND RCRA WHICH CALLS FOR DISCHARGE LIMITS AND TECHNOLOGICAL
STANDARDS. TECHNOLOGY-BASED REGULATION HAS BEEN DIFFICULT TO IMPLEMENT
AND THE PROCESS HAS TAKEN MUCH LONGER THAN CONGRESS HAD HOPED. MANY
DIFFICULT TECHNICAL AND REGULATORY PROBLEMS LIE AHEAD, BUT THE CLEAN AIR
ACT AND CLEAN WATER ACT ARE WELL ALONG IN THE PROCESS OF IMPLEMENTATION.
INDUSTRY HAS INVESTED, AND PLANS TO INVEST, BILLIONS OF DOLLARS IN
COMPLIANCE WITH SPECIFIC REQUIREMENTS OF THESE ACTS.
THE RELEASE CONCEPT OF S.1480 WOULD ADOPT A WHOLLY DIFFERENT APPROACH
TO ENVIRONMENTAL LEGISLATION. NO DISCHARGE IS PERMITTED. ANY DISCHARGE
CAN BE SUBJECTED TO WIDE-RANGING AND OPEN-ENDED LIABILITY. NO
APPLICATION OF TECHNOLOGY CAN BE A DEFENSE. SCIENCE, TECHNOLOGY, AND
RATIONALITY NO LONGER FORM THE BASIS OF THE REGULATORY PRINCIPLE.
INSTEAD, THE REGULATORY PRINCIPLE BECOMES THE THREAT OF THE ASSESSMENT
OF MASSIVE DAMAGES WITHOUT REGARD TO FAULT OR ACTUAL CAUSATION.
NO CASE HAS BEEN MADE TO JUSTIFY A RADICAL LEGISLATIVE DEPARTURE FROM
TECHNOLOGY-BASED REGULATION. NONETHELESS, TECHNOLOGY-BASED REGULATIONS
HAVE OFTEN BEEN MORE DIFFICULT TO IMPLEMENT THAN CONGRESS ENVISIONED:
FOR INSTANCE, THE REGULATORY PROCESS OFTEN RUNS BEYOND CONGRESSIONAL
DEADLINES, AND REGULATORY PROGRAMS ARE OCCASIONALLY DELAYED OR
OVERTURNED BY THE COURTS.
STATEMENT ON SUPERFUND LEGISLATION
790907
790828
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 021 OF 39
FRIEDMAN F B
GARRETT T L
CHEMICAL MANUFACTURERS ASSOCIATION 1825 CONNECTICUT AVENUE, N.W.
WASHINGTON, D.C. 20009
U.S. SENATE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS SUBCOMMITTEES
ON ENVIRONMENTAL POLLUTION AND RESOURCE PROTECTION
COVINGTON AND BURLING 888 SIXTEENTH STREET N.W. WASHINGTON, D.C.
20006
104692
HEARING
CORRESPONDENCE
SENATE HEARING
FRUSTRATION IN THIS REGARD DOES NOT JUSTIFY ANY RADICAL NEW
DEPARTURE. RATHER, MUCH IMPROVEMENT CAN BE MADE BY UPGRADING THE
TECHNOLOGICAL CAPACITY OF RESPONSIBLE BUREAUCRACIES AND IMPROVING THE
QUALITY OF GOVERNMENT SCIENCE AND TECHNOLOGY.
IN ADDITION, SOME AREAS ARE NOT SUSCEPTIBLE TO TECHNOLOGY-BASED
REGULATION, AND A DIFFERENT APPROACH IN THIS NARROW AREA IS WARRANTED.
ONE EXAMPLE IS THE ABANDONED OR "ORPHAN" DUMP SITE PROBLEM. HERE THE
DUMPING HAS ALREADY OCCURRED. TECHNOLOGICAL REGULATION OF THIS DUMPING
IS TOO LATE. ACCORDINGLY, CMA HAS URGED A LIMITED AND SPECIFIC NEW
PROGRAM TO CONTAIN OLD DUMPSITES.
ANOTHER CATEGORY WHICH FALLS OUTSIDE THE COMPETENCE OF
TECHNOLOGY-BASED REGULATION IS THE CATEGORY OF EXCEPTIONAL DISCHARGES
WHICH ARE WITHOUT THE STANDARD REGULATORY SCHEME OF SECTION 402 OF THE
CLEAN WATER ACT, BUT ARE COVERED BY SECTION 311 OF THE CLEAN WATER ACT.
HERE EPA PUBLISHED IMPLEMENTING REGULATIONS IN 1978, BUT THESE
REGULATIONS WERE OVERTURNED BECAUSE EPA FAILED TO SET FORTH THE "TIMES,
CURCUMSTANCES AND CONDITIONS" UNDER WHICH PARTICULAR DISCHARGES WOULD BE
HARMFUL AS REQUIRED BY THE STATUTE.
AFTER THE SECTION 311 COURT VICTORY, THE CHEMICAL INDUSTRY NEGOTIATED
A NUMBER OF CHANGES IN SECTION 311 WHICH MADE SECTION 311 EASIER AND
MORE SENSIBLE TO IMPLEMENT AND EXPEDITED THE IMPLEMENTATION PROCESS.
THE TWO PRINCIPAL CHANGES IN SECTION 311 WERE: (1) TO ALLOW THE EPA TO
REGULATE ON THE BASIS OF DISCHARGES IN QUANTITIES WHICH MAY BE HARMFUL
WHILE DROPPING THE TOO DIFFICULT REQUIREMENT OF SPECIFYING IN ADVANCE
THE TIMES, CIRCUMSTANCES, AND LOCATIONS OF DISCHARGE; AND (2) TO DRAW
BY MEANS OF DEFINITIONAL EXCLUSION A MORE PRECISE BOUNDARY BETWEEN
EXCEPTIONAL SECTION 311 SPILL REGULATION AND STANDARD TECHNOLOGY-BASED
REGULATION UNDER SECTION 402 OF THE CLEAN WATER ACT.
STATEMENT ON SUPERFUND LEGISLATION
790907
790828
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 022 OF 39
FRIEDMAN F B
GARRETT T L
CHEMICAL MANUFACTURERS ASSOCIATION 1825 CONNECTICUT AVENUE, N.W.
WASHINGTON, D.C. 20009
U.S. SENATE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS SUBCOMMITTEES
ON ENVIRONMENTAL POLLUTION AND RESOURCE PROTECTION
COVINGTON AND BURLING 888 SIXTEENTH STREET N.W. WASHINGTON, D.C.
20006
104693
HEARING
CORRESPONDENCE
SENATE HEARING
AFTER THE 1978 SECTION 311 AMENDMENTS WERE WORKED OUT BETWEEN EPA AND
INDUSTRY, THEY WERE SPONSORED BY THE ADMINISTRATION AND PRESENTED IN
DETAIL TO BOTH THE SENATE AND THE HOUSE. WITH THE BLESSING OF
INTERESTED ENVIRONMENTAL GROUPS, THE AMENDMENTS WERE PASSED IN THE
CLOSING DAYS OF CONGRESS.
THREE THINGS ARE OF PARTICULAR IMPORTANCE REGARDING THE 1978 SECTION
311 AMENDMENTS:
FIRST, THEY GREATLY SPEEDED UP THE IMPLEMENTATION OF THE SECTION 311
HAZARDOUS CHEMICAL SPILL PROGRAM (FINAL IMPLEMENTING REGULATIONS WERE
JUST PROMULGATED ON AUGUST 27, 1979);
SECOND, THE SPEED UP AND RATIONALIZATION WAS ACCOMPLISHED IN LARGE
PART BY DEFINING SECTION 311 SPILL INCIDENTS SO THAT THERE WAS NO
OVERLAP WITH STANDARD TECHNOLOGY-BASED REGULATION UNDER SECTION 402;
AND
THIRD, THE AMENDMENTS WERE DRAFTED AND IMPLEMENTED THROUGH A UNIQUE
COOPERATION BETWEEN INDUSTRY AND THE EPA WHICH WAS APPROVED BY
ENVIRONMENTAL GROUPS AND IMPLEMENTED BY CONGRESS.
STATEMENT ON SUPERFUND LEGISLATION
790907
790828
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 023 OF 39
FRIEDMAN F B
GARRETT T L
CHEMICAL MANUFACTURERS ASSOCIATION 1825 CONNECTICUT AVENUE, N.W.
WASHINGTON, D.C. 20009
U.S. SENATE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS SUBCOMMITTEES
ON ENVIRONMENTAL POLLUTION AND RESOURCE PROTECTION
COVINGTON AND BURLING 888 SIXTEENTH STREET N.W. WASHINGTON, D.C.
20006
104694
HEARING
CORRESPONDENCE
SENATE HEARING
S.1480 IS A RADICAL DEPARTURE FROM THE 1978 SECTION 311 AMENDMENTS.
IT ABROGATES THE SECTION 311 SETTLEMENT WITHOUT EVEN GIVING THE NEW
PROGRAM A CHANCE TO WORK, AND WITHOUT WAITING FOR THE STUDY CALLED FOR
IN THE SECTION 311 AMENDMENTS THEMSELVES. WE DO NOT AT ALL SUGGEST THAT
CONGRESS LEGALLY OR CONSTITUTIONALLY IS BOUND TO ADHERE TO A PROGRAM AND
COMPROMISE IT PREVIOUSLY ADOPTED. NONETHELESS, TO REJECT AND OVERTURN
THE SECTION 311 AMENDMENTS WITHOUT EVEN GIVING THE PROGRAM A CHANCE,
WOULD SECURELY CHILL FUTURE EXERCISES OF MUTUAL COOPERATION AND
CONFIDENCE. MORE IMPORTANTLY, THE SECTION 311 AMENDMENTS PRESERVE AND
SEPARATE THE SECTION 311 EMERGENCY SPILL PROVISION FROM SECTION 402
PERMIT REGULATIONS SO THAT BOTH PROGRAMS CAN GO FORWARD TOWARDS
EFFECTIVE IMPLEMENTATION.
S.1480 WOULD NOT ONLY ABROGATE THE SECTION 311 AMENDMENTS, IT WOULD
ALSO OVERLAP AND NULLIFY ALMOST ALL PERMITS UNDER SECTION 402. IN
ADDITION, IT WOULD UNDERCUT ALL OTHER TECHNOLOGY-BASED ENVIRONMENTAL
REGULATION. CLEARLY NO SUCH STEP IS WARRANTED ON THE SPARSE RECORD
BEFORE THIS COMMITTEE. THE COMMITTEE'S ATTENTION SHOULD BE DIRECTED
TOWARDS THE PROBLEM WHICH NEEDS FEDERAL LEGISLATION -- THAT OF ORPHAN
DUMPSITES.
STATEMENT ON SUPERFUND LEGISLATION
790907
790828
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 024 OF 39
FRIEDMAN F B
GARRETT T L
CHEMICAL MANUFACTURERS ASSOCIATION 1825 CONNECTICUT AVENUE, N.W.
WASHINGTON, D.C. 20009
U.S. SENATE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS SUBCOMMITTEES
ON ENVIRONMENTAL POLLUTION AND RESOURCE PROTECTION
COVINGTON AND BURLING 888 SIXTEENTH STREET N.W. WASHINGTON, D.C.
20006
104695
HEARING
CORRESPONDENCE
SENATE HEARING
EDMUND B. FROST, ESQ. VICE PRESIDENT & GENERAL COUNSEL CHEMICAL
MANUFACTURERS ASSOCIATION 1825 CONNECTICUT AVENUE, N.W. WASHINGTON,
D.C. 20009
SUBSTANCES INTO THE ENVIRONMENT UNDER
THE MUSKIE-CULVER BILL (S.1480).
IN RESPONSE TO YOUR REQUEST, WE HAVE REVIEWED THE PROVISIONS OF THE
RECENTLY PROPOSED MUSKIE-CULVER BILL (S.1480) THAT WOULD PROHIBIT THE
RELEASE OF HAZARDOUS SUBSTANCES INTO THE ENVIRONMENT UNDER ANY
CIRCUMSTANCES. WE ARE SERIOUSLY CONCERNED THAT THE PROPOSED AMENDMENT
WOULD UNDERMINE THE SCHEME ESTABLISHED UNDER CURRENT FEDERAL
ENVIRONMENTAL LAWS, UNDER WHICH SPECIFIC LIMITS ARE PLACED UPON RELEASES
INTO THE ENVIRONMENT BASED UPON A CAREFUL ASSESSMENT OF THE DANGER TO
PUBLIC HEALTH AND WELFARE, THE AVAILABILITY OF CONTROL TECHNOLOGY, AND
OTHER FACTORS.
THE ZERO-DISCHARGE CONCEPT EMBODIED IN THE MUSKIE-CULVER BILL WOULD
UNDERMINE THE PREMISE OF EXISTING ENVIRONMENTAL LAWS, WOULD RENDER
UNLAWFUL CONDUCT THAT IS NOW EXPRESSLY PERMITTED UNDER FEDERAL AND STATE
PROGRAMS, WOULD REPEAL LIMITS ON EMISSIONS AND DISCHARGES THAT EPA HAS
FOUND TO BE ADEQUATE TO PROTECT THE PUBLIC HEALTH AND WELFARE, AND WOULD
MEAN THAT BILLIONS OF DOLLARS INVESTED BY INDUSTRY TO COMPLY WITH THEIR
EXISTING REQUIREMENTS WILL HAVE BEEN WASTED.
STATEMENT ON SUPERFUND LEGISLATION
790907
790828
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 025 OF 39
FRIEDMAN F B
GARRETT T L
CHEMICAL MANUFACTURERS ASSOCIATION 1825 CONNECTICUT AVENUE, N.W.
WASHINGTON, D.C. 20009
U.S. SENATE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS SUBCOMMITTEES
ON ENVIRONMENTAL POLLUTION AND RESOURCE PROTECTION
COVINGTON AND BURLING 888 SIXTEENTH STREET N.W. WASHINGTON, D.C.
20006
104696
HEARING
CORRESPONDENCE
SENATE HEARING
THE FOLLOWING MEMORANDUM ANALYZES THIS PROHIBITION IN THE BILL, AND
DISCUSSES THE INCONSISTENCIES BETWEEN THIS PROHIBITION AND THE EXISTING
ENVIRONMENTAL LAWS.
SECTION 3(A)(2) OF THE BILL (S.1480) PROVIDES THAT:
"THE DISCHARGE OF ANY HAZARDOUS SUBSTANCE IN VIOLATION OF SECTION
311(B)(3) OF THE CLEAN WATER ACT OR THE RELEASE OR DISPOSAL OF ANY
HAZARDOUS SUBSTANCE, INCLUDING ANY RELEASE INTO OR UPON GROUNDWATER,
AIR, LAND, THE NAVIGABLE WATERS, OR THE WATERS OF THE CONTIGUOUS ZONE,
OR WHICH MAY AFFECT NATURAL RESOURCES BELONGING TO, OR UNDER THE
EXCLUSIVE MANAGEMENT AUTHORITY OF THE UNITED STATES (INCLUDING,
RESOURCES UNDER THE FISHERY CONSERVATION AND MANAGEMENT ACT OF 1976), IS
PROHIBITED."
SECTION 2 OF THE BILL DEFINES "RELEASE" TO MEAN:
"(A) ANY SPILLING, LEAKING, PUMPING, POURING, EMITTING, EMPTYING,
DISCHARGING, ESCAPING, LEACHING, OR DUMPING, OR (B) ANY OTHER RELEASE
INTO THE ENVIRONMENT WHICH PRESENTS OR MAY PRESENT A SUBSTANTIAL DANGER
TO THE PUBLIC HEALTH OR THE ENVIRONMENT. . ."
SECTION 2(3) WOULD DEFINE "DISPOSAL" IN THE SAME MANNER IN WHICH IT
IS DEFINED UNDER THE RESOURCE CONSERVATION AND RECOVERY ACT WHICH
DEFINES "DISPOSAL" IN 42 U.S.C. SECTION 6903(3) TO INCLUDE:
"THE DISCHARGE, DEPOSIT, INJECTION, DUMPING, SPILLING, LEAKING, OR
PLACING OF ANY SOLID WASTE OR HAZARDOUS WASTE INTO OR ON ANY LAND OR
WATER SO THAT SUCH SOLID WASTE OR HAZARDOUS WASTE OR ANY CONSTITUENT
THEREOF MAY ENTER THE ENVIRONMENT OR BE ADMITTED INTO THE AIR OR
DISCHARGED INTO ANY WATERS, INCLUDING GROUNDWATERS."
STATEMENT ON SUPERFUND LEGISLATION
790907
790828
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 026 OF 39
FRIEDMAN F B
GARRETT T L
CHEMICAL MANUFACTURERS ASSOCIATION 1825 CONNECTICUT AVENUE, N.W.
WASHINGTON, D.C. 20009
U.S. SENATE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS SUBCOMMITTEES
ON ENVIRONMENTAL POLLUTION AND RESOURCE PROTECTION
COVINGTON AND BURLING 888 SIXTEENTH STREET N.W. WASHINGTON, D.C.
20006
104697
HEARING
CORRESPONDENCE
SENATE HEARING
SECTION 2(13) DEFINES THE TERM "HAZARDOUS SUBSTANCE" VERY BROADLY TO
INCLUDE: (1) ANY SUBSTANCE DESIGNATED AS HAZARDOUS UNDER SECTION 311(B)
OF THE CLEAN WATER ACT; (2) ANY WASTE HAVING THE CHARACTERISTICS OF
HAZARD IDENTIFIED UNDER OR LISTED PURSUANT TO SECTION 3001 OF THE
RESOURCE CONSERVATION AND RECOVERY ACT; (3) ANY TOXIC POLLUTANT LISTED
UNDER SECTION 307(A) OF THE CLEAN WATER ACT; (4) ANY HAZARDOUS AIR
POLLUTANT LISTED UNDER SECTION 112 OF THE CLEAN AIR ACT; (5) ANY
IMMINENTLY HAZARDOUS CHEMICAL SUBSTANCE OR MIXTURE AS THAT TERM IS
DEFINED IN SECTION 7 OF THE TOXIC SUBSTANCES CONTROL ACT; (6) ANY
SUBSTANCE OR MIXTURE WHICH MAY BE DESIGNATED UNDER SECTION 3(A)(I) OF
THE BILL (S.1480); AND (7):
"ANY ELEMENT, SUBSTANCE, COMPOUND, OR MIXTURE, INCLUDING
DISEASE-CAUSING AGENTS, WHICH AFTER RELEASE INTO THE ENVIRONMENT AND
UPON EXPOSURE, INGESTION, INHALATION, OR ASSIMILATION INTO ANY ORGANISM,
EITHER DIRECTLY FROM THE ENVIRONMENT OR INDIRECTLY BY INGESTION THROUGH
FOOD CHAINS, WILL OR MAY REASONABLY BE ANTICIPATED TO CAUSE DEATH,
DISEASE, BEHAVIORAL ABNORMALITIES, CANCER, GENETIC MUTATION,
PHYSIOLOGICAL MALFUNCTIONS (INCLUDING MALFUNCTIONS IN REPRODUCTION) OR
PHYSICAL DEFORMATIONS, IN SUCH ORGANISMS OF THEIR OFFSPRING. . ."
THIS SWEEPING PROHIBITION OF THE RELEASE OR DISPOSAL OF ANY HAZARDOUS
SUBSTANCE AS DEFINED UNDER ANY OF THE REFERENCED ENVIRONMENTAL LAWS, OR
UNDER THE BROAD HAZARDOUS SUBSTANCE DEFINITION OF THE BILL, WOULD HAVE
THE INEVITABLE EFFECT OF OVERTURNING THE ENTIRE BASIS OF ENVIRONMENTAL
REGULATION IN THIS COUNTRY.
STATEMENT ON SUPERFUND LEGISLATION
790907
790828
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 027 OF 39
FRIEDMAN F B
GARRETT T L
CHEMICAL MANUFACTURERS ASSOCIATION 1825 CONNECTICUT AVENUE, N.W.
WASHINGTON, D.C. 20009
U.S. SENATE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS SUBCOMMITTEES
ON ENVIRONMENTAL POLLUTION AND RESOURCE PROTECTION
COVINGTON AND BURLING 888 SIXTEENTH STREET N.W. WASHINGTON, D.C.
20006
104698
HEARING
CORRESPONDENCE
SENATE HEARING
THE CLEAN AIR ACT (CAA) REGULATES EMISSIONS OF POLLUTANTS IN TWO
PRINCIPAL WAYS: (1) BY THE ESTABLISHMENT AND IMPLEMENTATION OF NATIONAL
AMBIENT AIR QUALITY STANDARDS FOR PARTICULAR POLLUTANTS AND (2) BY THE
ESTABLISHMENT OF NATIONAL STANDARDS FOR NEW OR MODIFIED STATIONARY
SOURCES AND FOR HAZARDOUS AIR POLLUTANTS. UNDER THE ACT, THESE SYSTEMS
OF REGULATIONS OPERATE SELECTIVELY AS TO THE SUBSTANCES AND SOURCES
COVERED, BASED UPON A CAREFUL EVALUATION OF THE NATURE OF THE POLLUTION
PROBLEM AND THE FEASIBILITY OF COMPLIANCE.
THE HEART OF THE CAA CONSISTS OF FEDERAL NATIONAL AMBIENT STANDARDS
FOR PARTICULAR POLLUTANTS THAT EPA DETERMINES "MAY REASONABLY BE
ANTICIPATED TO ENDANGER PUBLIC HEALTH OR WELFARE." 42 U.S.C. SECTIONS
7408(A)(1)(A). 7409(B). UNDER SECTION 110 OF THE ACT, EACH STATE MUST
ADOPT AND SUBMIT TO EPA A PLAN FOR THE IMPLEMENTATION, MAINTENANCE AND
ENFORCEMENT OF THE NATIONAL STANDARDS. 42 U.S.C. SECTION 7410(A)(1).
IN PROVIDING FOR SUCH ATTAINMENT, A STATE PLAN MUST PROVIDE FOR EMISSION
LIMITATIONS AND SCHEDULES OF COMPLIANCE FOR PARTICULAR EXISTING SOURCES,
AND A PERMIT SYSTEM FOR PRECONSTRUCTION REVIEW OF NEW OR MODIFIED
SOURCES OF POLLUTION. 42 U.S.C. SECTION 7410(A)(2)(A), (A)(2)(D).
STATEMENT ON SUPERFUND LEGISLATION
790907
790828
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 028 OF 39
FRIEDMAN F B
GARRETT T L
CHEMICAL MANUFACTURERS ASSOCIATION 1825 CONNECTICUT AVENUE, N.W.
WASHINGTON, D.C. 20009
U.S. SENATE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS SUBCOMMITTEES
ON ENVIRONMENTAL POLLUTION AND RESOURCE PROTECTION
COVINGTON AND BURLING 888 SIXTEENTH STREET N.W. WASHINGTON, D.C.
20006
104699
HEARING
CORRESPONDENCE
SENATE HEARING
PERMITS MAY BE ISSUED IN NONATTAINMENT AREAS ONLY IF, INTER ALIA,
THERE IS A SUFFICIENT OFFSET FROM EMISSIONS OF EXISTING SOURCES ALLOWED
UNDER THE APPLICABLE STATE PLAN SO AS TO REPRESENT "REASONABLE FURTHER
PROGRESS" TOWARD ATTAINMENT BY THE STATUTORY DEADLINE, AND THE PROPOSED
NEW SOURCE COMPLIES WITH THE "LOWEST ACHIEVABLE EMISSION RATE." 42
U.S.C. SECTION 7603. MAJOR NEW STATIONARY SOURCES OR MODIFICATIONS TO
BE LOCATED IN CLEAN AIR AREAS ARE SUBJECT TO ANALAGOUS PERMIT
REQUIREMENTS FOR THE "PREVENTION OF SIGNIFICANT DETERIORATION." A
PERMITTEE IN A PSD AREA MUST SHOW, INTER ALIA, THAT THE SOURCE WILL MEET
LIMITS BASED UPON THE "BEST AVAILABLE CONTROL TECHNOLOGY," AND THAT
EMISSIONS FROM THE SOURCE WILL NOT CAUSE INCREASED EMISSIONS IN EXCESS
OF NUMERICAL "INCREMENTS" OVER A BASELINE AIR QUALITY. 42 U.S.C.
SECTION 7475(A). EPA HAS ISSUED COMPREHENSIVE REGULATIONS GOVERNING THE
IMPLEMENTATION OF THESE REQUIREMENTS. 40 C.F.R. PARTS 51 AND 52.
UNDER SECTION 111 OF THE CLEAN AIR ACT, EPA MAY ALSO ADOPT STANDARDS
FOR CATEGORIES OF SOURCES THAT EMIT POLLUTANTS THAT MAY ENDANGER THE
PUBLIC HEALTH OR WELFARE. THESE STANDARDS ARE BASED UPON THE "BEST
TECHNOLOGICAL SYSTEM OF CONTINUOUS EMISSION REDUCTION" WHICH (TAKING
INTO CONSIDERATION COSTS AND OTHER FACTORS) EPA DETERMINES HAS BEEN
"ADEQUATELY DEMONSTRATED." 42 U.S.C. SECTION 7411.
FINALLY UNDER SECTION 112 OF THE ACT, EPA MAY ESTABLISH EMISSION
STANDARDS FOR HAZARDOUS AIR POLLUTANTS. THESE ARE POLLUTANTS THAT MAY
RESULT IN AN INCREASE IN MORTALITY OR SERIOUS IRREVERSIBLE
INCAPACITATING ILLNESS, AND EPA IS OBLIGATED TO ESTABLISH STANDARDS THAT
PROVIDE "AN AMPLE MARGIN OF SAFETY" TO PROTECT THE PUBLIC. 42 U.S.C.
SECTION 7411(A)(1),(B)(1)(B).
STATEMENT ON SUPERFUND LEGISLATION
790907
790828
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 029 OF 39
FRIEDMAN F B
GARRETT T L
CHEMICAL MANUFACTURERS ASSOCIATION 1825 CONNECTICUT AVENUE, N.W.
WASHINGTON, D.C. 20009
U.S. SENATE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS SUBCOMMITTEES
ON ENVIRONMENTAL POLLUTION AND RESOURCE PROTECTION
COVINGTON AND BURLING 888 SIXTEENTH STREET N.W. WASHINGTON, D.C.
20006
104700
HEARING
CORRESPONDENCE
SENATE HEARING
THUS UNDER THE CLEAN AIR ACT, THE NATURE AND AMOUNT OF REGULATION ARE
CAREFULLY TAILORED TO INSURE THAT THE PUBLIC HEALTH IS PROTECTED, AND
THAT AVAILABLE POLLUTION CONTROL TECHNOLOGY IS UTILIZED. IT WOULD BE
TOTALLY INCONSISTENT WITH THE STATUTORY SCHEME EMBODIED IN THE CAA TO
PROHIBIT THE EMISSION OF ANY HAZARDOUS SUBSTANCE -- EVEN THOUGH SUCH
EMISSIONS CANNOT BE REDUCED BY AVAILABLE CONTROL TECHNOLOGY, AND NEED
NOT BE FURTHER REDUCED IN ORDER TO PROTECT THE PUBLIC HEALTH AND
WELFARE.
THE CLEAN WATER ACT (CWA) CONTAINS SIMILAR PROVISIONS DESIGNED TO
PROTECT THE PUBLIC HEALTH AND WELFARE AND TO FORCE THE UTILIZATION OF
AVAILABLE CONTROL TECHNOLOGY.
SECTION 303 OF THE CWA PROVIDES FOR THE ADOPTION AND REVISION OF
WATER QUALITY STANDARDS, WHICH DESCRIBE THE PERMISSIBLE AMOUNTS OF
POLLUTANTS IN DEFINED BODIES OF WATER. THESE STANDARDS MUST BE ADOPTED
BY THE STATES (SUBJECT TO EPA REVIEW), AND ARE TO "PROTECT THE PUBLIC
HEALTH AND WELFARE" TAKING INTO ACCOUNT THE NATURE OF THE WATERS IN
QUESTION, "THEIR USE AND VALUE FOR PUBLIC WATER SUPPLIES, PROPAGATION OF
FISH AND WILDLIFE, RECREATIONAL PURPOSES, AND AGRICULTURAL, INDUSTRIAL
AND OTHER PURPOSES." 33 U.S.C. SECTION 1313(C)(2).
STATEMENT ON SUPERFUND LEGISLATION
790907
790828
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 030 OF 39
FRIEDMAN F B
GARRETT T L
CHEMICAL MANUFACTURERS ASSOCIATION 1825 CONNECTICUT AVENUE, N.W.
WASHINGTON, D.C. 20009
U.S. SENATE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS SUBCOMMITTEES
ON ENVIRONMENTAL POLLUTION AND RESOURCE PROTECTION
COVINGTON AND BURLING 888 SIXTEENTH STREET N.W. WASHINGTON, D.C.
20006
104701
HEARING
CORRESPONDENCE
SENATE HEARING
PURSUANT TO SECTION 301(B)(2)(C) OF THE CWA, DISCHARGES OF SO CALLED
"TOXIC POLLUTANTS" MUST BY JULY 1, 1984, ACHIEVE EFFLUENT LIMITS BASED
UPON THE APPLICATION OF THE "BEST AVAILABLE CONTROL TECHNOLOGY
ECONOMICALLY ACHIEVABLE." 33 U.S.C. SECTION 311(B)(2)(C). EPA MAY ALSO
IMPOSE MORE STRINGENT REQUIREMENTS UNDER SECTION 307(A)(2) OF THE CWA,
TAKING INTO ACCOUNT, INTER ALIA, THE TOXICITY OF THE POLLUTANT, AND THE
EXTENT TO WHICH EFFECTIVE CONTROL MAY BE ACHIEVED UNDER OTHER AUTHORITY.
33 U.S.C. SECTION 1317(A)(2).
DISCHARGES OF POLLUTANTS WERE REQUIRED BY JULY 1, 1977 TO HAVE
ACHIEVED EFFLUENT UNITS BASED UPON THE "BEST PRACTICABLE CONTROL
TECHNOLOGY CURRENTLY AVAILABLE." 33 U.S.C. SECTIONS 1311(B)(1)(A). IN
ADDITION, NEW SOURCES OF DISCHARGES ARE SUBJECT TO EPA "NATIONAL
STANDARDS OF PERFORMANCE." THESE STANDARDS ARE REQUIRED TO REFLECT "THE
GREATEST DEGREE OF EFFLUENT REDUCTION WHICH THE ADMINISTRATOR DETERMINES
TO BE ACHIEVABLE" BY APPLICATION OF THE "BEST AVAILABLE DEMONSTRATED
CONTROL TECHNOLOGY, PROCESSES, OPERATING METHODS OR OTHER ALTERNATIVES."
33 U.S.C. SECTION 1316(A)(1). EPA HAS ISSUED A COMPREHENSIVE SET OF
1977 BPT AND NEW SOURCE REGULATIONS. SEE 40 C.F.R. PART 400.
STATEMENT ON SUPERFUND LEGISLATION
790907
790828
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 031 OF 39
FRIEDMAN F B
GARRETT T L
CHEMICAL MANUFACTURERS ASSOCIATION 1825 CONNECTICUT AVENUE, N.W.
WASHINGTON, D.C. 20009
U.S. SENATE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS SUBCOMMITTEES
ON ENVIRONMENTAL POLLUTION AND RESOURCE PROTECTION
COVINGTON AND BURLING 888 SIXTEENTH STREET N.W. WASHINGTON, D.C.
20006
104702
HEARING
CORRESPONDENCE
SENATE HEARING
ALL OF THE FOREGOING PROVISIONS ARE IMPLEMENTED IN THE NPDES PERMIT
PROGRAM. PURSUANT TO SECTIONS 301 AND 402 OF THE CWA, ALL DISCHARGERS
TO NAVIGABLE WATERS MUST APPLY FOR AND RECEIVE AN NPDES PERMIT SETTING
FORTH THE AMOUNTS OF SUBSTANCES THAT MAY PERMISSIBLY BE DISCHARGED. 42
U.S.C. SECTIONS 1311(A), 1342. PURSUANT TO SECTION 402 OF THE ACT, THE
NPDES PERMIT PROGRAM HAS BEEN TRANSFERRED TO A MAJORITY OF THE STATES,
SUBJECT TO CERTAIN EPA SUPERVISION.
IN SECTION 311 OF THE ACT, CONGRESS EXPRESSLY DEALT WITH THE PROBLEM
OF SPILLS OF HAZARDOUS SUBSTANCES. SECTION 311(B)(3) OF THE ACT
PROHIBITS THE DISCHARGE OF HAZARDOUS SUBSTANCES "IN SUCH QUANTITIES AS
MAY BE HARMFUL" TO PUBLIC HEALTH AND WELFARE -- NOT IN ANY AMOUNT. 33
U.S.C. SECTION 1321(B)(3). FURTHER, THIS PROVISION EXCLUDES DISCHARGES
FROM INDUSTRIAL FACILITIES SUBJECT TO THE NPDES PERMIT PROGRAM. 33
U.S.C. SECTION 1311(A)(12).
THE REGULATORY REGIME ESTABLISHED BY THE CWA DOES NOT BAN THE
DISCHARGE OF POLLUTANTS. INSTEAD, IT ESTABLISHES A CAREFUL SYSTEM OF
CONTROLS DESIGNED TO ASSURE THAT DISCHARGES OF POLLUTANTS WILL NOT
EXCEED LEVELS THAT MAY BE HARMFUL TO PUBLIC HEALTH AND WELFARE, AND THAT
AVAILABLE CONTROL TECHNOLOGY IS USED TO REDUCE ALL INDUSTRIAL
DISCHARGES. INDUSTRY HAS ALREADY SPENT BILLIONS OF DOLLARS TO INSTALL
CONTROL SYSTEMS NEEDED TO COMPLY WITH EXISTING EPA REGULATIONS TO DATE.
A BAN ON THE DISCHARGE OF ANY HAZARDOUS SU0STANCE WOULD BE INCONSISTENT
WITH THIS STATUTORY SCHEME, AND WOULD MEAN THAT VIRTUALLY ALL OF THESE
EXPENDITURES FOR POLLUTION CONTROL WOULD HAVE BEEN WASTED.
STATEMENT ON SUPERFUND LEGISLATION
790907
790828
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 032 OF 39
FRIEDMAN F B
GARRETT T L
CHEMICAL MANUFACTURERS ASSOCIATION 1825 CONNECTICUT AVENUE, N.W.
WASHINGTON, D.C. 20009
U.S. SENATE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS SUBCOMMITTEES
ON ENVIRONMENTAL POLLUTION AND RESOURCE PROTECTION
COVINGTON AND BURLING 888 SIXTEENTH STREET N.W. WASHINGTON, D.C.
20006
104703
HEARING
CORRESPONDENCE
SENATE HEARING
AND SANCTUARIES ACT
UNDER THE MARINE PROTECTION, RESEARCH AND SANCTUARIES ACT OF 1972
(MPRSA"), CONGRESS EXPRESSLY CHOSE "TO REGULATE THE DUMPING OF ALL TYPES
OF MATERIALS INTO OCEAN WATERS" (EMPHASIS ADDED) AND NOT TO IMPOSE AN
ABSOLUTE PROHIBITION ON THE DUMPING OF MATERIALS WHICH MIGHT BE DEEMED
TO BE HAZARDOUS SUBSTANCES. 33 U.S.C. SECTION 1401(B). SECTION 101 OF
MPRSA PROHIBITS THE TRANSPORT FROM THE UNITED STATES OF ANY MATERIAL FOR
THE PURPOSE OF DUMPING IT INTO OCEAN WATERS "(E)XCEPT AS MAY BE
AUTHORIZED BY A PERMIT ISSUED PURSUANT TO SECTION 102 OR SECTION 103 OF
THIS TITLE, AND SUBJECT TO REGULATIONS ISSUED PURSUANT TO SECTION 108 OF
THIS TITLE. . ." 33 U.S.C. SECTION 1411. MPRSA SECTION 102(A) PROVIDES
FOR EPA-ISSUED PERMITS FOR THE DUMPING OF MATERIALS INTO OCEAN WATERS
"WHERE THE ADMINISTRATOR DETERMINES THAT SUCH DUMPING WILL NOT
UNREASONABLY DEGRADE OR ENDANGER HUMAN HEALTH, WELFARE, OR AMENITIES, OR
THE MARINE ENVIRONMENT, ECOLOGICAL SYSTEMS, OR ECONOMIC POTENTIALITIES."
33 U.S.C. SECTION 1412(A). EPA HAS ISSUED COMPREHENSIVE REGULATIONS
IMPLEMENTING THIS PERMIT SYSTEM AND PRESCRIBING THE TERMS AND CONDITIONS
UNDER WHICH VARIOUS SUBSTANCES MAY BE DISPOSED OF BY MEANS OF OCEAN
DUMPING. SEE 40 C.F.R. PARTS 220-230 (1978).
STATEMENT ON SUPERFUND LEGISLATION
790907
790828
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 033 OF 39
FRIEDMAN F B
GARRETT T L
CHEMICAL MANUFACTURERS ASSOCIATION 1825 CONNECTICUT AVENUE, N.W.
WASHINGTON, D.C. 20009
U.S. SENATE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS SUBCOMMITTEES
ON ENVIRONMENTAL POLLUTION AND RESOURCE PROTECTION
COVINGTON AND BURLING 888 SIXTEENTH STREET N.W. WASHINGTON, D.C.
20006
104704
HEARING
CORRESPONDENCE
SENATE HEARING
IT WAS OBVIOUSLY NOT THE INTENT OF MPRSA TO PROHI0IT THE DUMPING OF
ALL "HAZARDOUS SUBSTANCES" AS DEFINED UNDER THE MUSKIE-CULVER BILL
(S.1480). INSTEAD, MPRSA ESTABLISHES A COMPREHENSIVE PERMIT SYSTEM
WHICH REGULATES SUCH DISPOSAL. SECTION 3 OF S.1480 WOULD HAVE THE
EFFECT OF OVERTURNING MPRSA AND REPEALING ITS CAREFULLY STRUCTURED
PERMIT REGULATORY PROCESS.
THE RESOURCE CONSERVATION AND RECOVERY ACT ("RCRA") SEEKS TO PROTECT
THE ENVIRONMENT BY "REGULATING THE TREATMENT, STORAGE, TRANSPORTATION,
AND DISPOSAL OF HAZARDOUS WASTES WHICH HAVE ADVERSE EFFECTS ON HEALTH
AND THE ENVIRONMENT. . ." 12 U.S.C. SECTION 6902(4) (EMPHASIS ADDED).
RCRA PURSUES THIS OBJECTIVE, NOT BY PROHIBITING THE RELEASE OR DISPOSAL
OF ALL HAZARDOUS WASTES, BUT BY IDENTIFYING HAZARDOUS WASTES THROUGH
CHARACTERISTICS AND LISTS (42 U.S.C. SECTION 6921) AND BY REQUIRING EPA
TO PROMULGATE "REGULATIONS ESTABLISHING SUCH PERFORMANCE STANDARDS. .
.AS MAY BE NECESSARY TO PROTECT HUMAN HEALTH AND THE ENVIRONMENT." 42
U.S.C. SECTION 6924. THESE STANDARDS INCLUDE REQUIREMENTS WITH RESPECT
TO THE "TREATMENT, STORAGE OR DISPOSAL OF ALL SUCH WASTE RECEIVED BY THE
FACILITY" PURSUANT TO "OPERATING METHODS, TECHNIQUES AND PRACTICES"
ESTABLISHED BY EPA. 42 U.S.C. SECTION 6924(3).
STATEMENT ON SUPERFUND LEGISLATION
790907
790828
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 034 OF 39
FRIEDMAN F B
GARRETT T L
CHEMICAL MANUFACTURERS ASSOCIATION 1825 CONNECTICUT AVENUE, N.W.
WASHINGTON, D.C. 20009
U.S. SENATE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS SUBCOMMITTEES
ON ENVIRONMENTAL POLLUTION AND RESOURCE PROTECTION
COVINGTON AND BURLING 888 SIXTEENTH STREET N.W. WASHINGTON, D.C.
20006
104705
HEARING
CORRESPONDENCE
SENATE HEARING
THROUGH A COMPREHENSIVE PERMIT PROGRAM UNDER RCRA SECTION 3005, THE
TREATMENT, STORAGE, OR DISPOSAL OF HAZARDOUS WASTES IS PROHIBITED
"EXCEPT IN ACCORDANCE WITH SUCH A PERMIT" AND IN ACCORDANCE WITH THE
PERFORMANCE STANDARDS OF SECTION 3004. SEE 42 U.S.C. SECTION 6925.
LIKE THE OTHER ENVIRONMENTAL LAWS BEFORE IT, RCRA ESTABLISHES A
PERMIT SYSTEM TO REGULATE THE TREATMENT, STORAGE AND DISPOSAL OF
HAZARDOUS WASTES. THERE IS NO PROHIBITION ON SUCH DISPOSAL IN RCRA AND
THE OBVIOUS EFFECT OF SECTION 3(A)(2) OF S.1480 WOULD BE TO CONTRADICT
THE LEGISLATIVE PURPOSES OF RCRA AND TO OVERTURN ITS COMPLEX PERMIT
SYSTEM BASED UPON PERFORMANCE STANDARDS TO REGULATE TREATMENT, STORAGE
AND DISPOSAL OF HAZARDOUS WASTES.
THE TOXIC SUBSTANCES CONTROL ACT ("TSCA") WAS DESIGNED 0Y CONGRESS
FOR THE PURPOSE OF DEVELOPING DATA WITH RESPECT TO THE HEALTH AND
ENVIRONMENTAL EFFECTS OF CHEMICAL SUBSTANCES. 15 U.S.C. SECTION
2601(B)(1). MOREOVER, TSCA DECLARES THAT:
"IT IS THE POLICY OF THE UNITED STATES THAT -- . . .
"(2) ADEQUATE AUTHORITY SHOULD EXIST TO REGULATE CHEMICAL SUBSTANCES
AND MIXTURES WHICH PRESENT AN UNREASONABLE RISK OF INJURY TO HEALTH OR
THE ENVIRONMENT, AND TO TAKE ACTION WITH RESPECT TO CHEMICAL SUBSTANCES
AND MIXTURES WHICH ARE IMMINENT HAZARDS; AND
"(3) AUTHORITY OVER CHEMICAL SUBSTANCES AND MIXTURES SHOULD BE
EXERCISED IN SUCH A MANNER AS NOT TO IMPEDE UNDULY OR CREATE UNNECESSARY
ECONOMIC BARRIERS TO TECHNOLOGICAL INNOVATION WHILE FULFILLING THE
PRIMARY PURPOSE OF THIS CHAPTER TO ASSURE THAT SUCH INNOVATION AND
COMMERCE IN SUCH CHEMICAL SUBSTANCES AND MIXTURES DO NOT PRESENT AN
UNREASONABLE RISK OF INJURY TO HEALTH OR THE ENVIRONMENT."
STATEMENT ON SUPERFUND LEGISLATION
790907
790828
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 035 OF 39
FRIEDMAN F B
GARRETT T L
CHEMICAL MANUFACTURERS ASSOCIATION 1825 CONNECTICUT AVENUE, N.W.
WASHINGTON, D.C. 20009
U.S. SENATE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS SUBCOMMITTEES
ON ENVIRONMENTAL POLLUTION AND RESOURCE PROTECTION
COVINGTON AND BURLING 888 SIXTEENTH STREET N.W. WASHINGTON, D.C.
20006
104706
HEARING
CORRESPONDENCE
SENATE HEARING
A FLAT BAN ON ALL RELEASES OF CHEMICALS WHICH MAY BE DEEMED TO BE
HAZARDOUS UNDER THE MUSKIE-CULVER BILL WOULD BE TOTALLY INCONSISTENT
WITH THE OBJECTIVES OF TSCA. TSCA WAS INTENDED TO REGULATE, NOT TO
PROHIBIT, CHEMICAL SUBSTANCES ONLY WHEN THEY WERE FOUND TO POSE AN
UNREASONABLE RISK. THE INTENT OF CONGRESS IN ADOPTING THIS STANDARD
COULD HARDLY BE CLEARER. SECTION 2(C) TO TSCA EXPRESSLY STATES:
"(C) INTENT OF CONGRESS -- IT IS THE INTENT OF CONGRESS THAT THE
ADMINISTRATOR SHALL CARRY OUT THIS CHAPTER IN A REASONABLE AND PRUDENT
MANNER, AND THAT THE ADMINISTRATOR SHALL CONSIDER THE ENVIRONMENTAL,
ECONOMIC, AND SOCIAL IMPACT OF ANY ACTION THE ADMINISTRATOR TAKES OR
PROPOSES TO TAKE UNDER THIS CHAPTER." (EMPHASIS ADDED.) 15 U.S.C.
SECTION 2601(C).
TSCA SECTION 6 PROVIDES EPA WITH A FULL ASSORTMENT OF REGULATORY
OPTIONS IN ANY CASE WHERE IT FINDS AN "UNREASONABLE RISK OF INJURY TO
HEALTH OR THE ENVIRONMENT." 15 U.S.C. SECTION 2605. THE REGULATORY
OPTION SELECTED MUST BE FINELY TUNED TO CAUSE THE MINIMUM OF ECONOMIC
AND SOCIAL DISRUPTION. OBVIOUSLY, A GENERIC PROHIBITION LIKE THAT SET
FORTH IN SECTION 3(A)(2) OF THE MUSKIE-CULVER BILL (S.1480) WOULD
CONTRADICT THIS BALANCED REGULATION UNDER TSCA.
STATEMENT ON SUPERFUND LEGISLATION
790907
790828
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 036 OF 39
FRIEDMAN F B
GARRETT T L
CHEMICAL MANUFACTURERS ASSOCIATION 1825 CONNECTICUT AVENUE, N.W.
WASHINGTON, D.C. 20009
U.S. SENATE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS SUBCOMMITTEES
ON ENVIRONMENTAL POLLUTION AND RESOURCE PROTECTION
COVINGTON AND BURLING 888 SIXTEENTH STREET N.W. WASHINGTON, D.C.
20006
104707
HEARING
CORRESPONDENCE
SENATE HEARING
THE HOUSE COMMITTEE REPORT ACCOMPANYING TSCA CAREFULLY EXPLAINED THAT
A DETERMINATION UNDER SECTION 6 OF "UNREASONABLE RISK" IS TO BE MADE FOR
A PARTICULAR CHEMICAL -- NOT ALL CHEMICALS AS A CLASS -- AND
"(I)NVOLVES BALANCING THE PROBABILITY THAT HARM WILL OCCUR AND THE
MAGNITUDE AND SEVERITY OF THAT HARM AGAINST THE EFFECT OF PROPOSED
REGULATORY ACTION ON THE AVAILABILITY TO SOCIETY OF THE BENEFITS OF THE
SUBSTANCE OR MIXTURE, TAKING INTO ACCOUNT THE AVAILABILITY OF
SUBSTITUTES FOR THE SUBSTANCE OR MIXTURE WHICH DO NOT REQUIRE A
REQUISITION, AND OTHER ADVERSE EFFECTS WHICH SUCH PROPOSED ACTION MAY
HAVE ON SOCIETY." H.R. REP. NO. 94-1341, 94TH CONG., 2D SESS. 13-14
(1976).
THE BROAD SWEEP OF SECTION 3(A)(2) OF THE MUSKIE-CULVER BILL (S.1480)
WOULD, IN EFFECT, REPEAL THIS COMPREHENSIVE AND BALANCED REGULATORY
SYSTEM UNDER TSCA.
BEGINNING WITH THE ENACTMENT OF THE CLEAN AIR ACT IN 1970, CONGRESS
IN A SERIES OF STATUTES HAS ESTABLISHED A COMPREHENSIVE SYSTEM FOR THE
CONTROL OF SUBSTANCES THAT MAY POSE ENVIRONMENTAL PROBLEMS. THESE
STATUTES GOVERN THE PRODUCTION, TRANSPORTATION, SALE AND DISPOSAL OF
TOXIC AND HAZARDOUS SUBSTANCES QUITE LITERALLY FROM CRADLE TO GRAVE.
THE FOREGOING DISCUSSION INCLUDES ONLY THE PRINCIPAL EPA PROGRAMS, AND
DOES NOT COVER THE RELATED PROGRAMS ENFORCED BY THE FOOD AND DRUG
ADMINISTRATION, THE DEPARTMENT OF AGRICULTURE, THE CONSUMER PRODUCT
SAFETY COMMISSION, THE OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION AND
THE DEPARTMENT OF TRANSPORTATION.
STATEMENT ON SUPERFUND LEGISLATION
790907
790828
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 037 OF 39
FRIEDMAN F B
GARRETT T L
CHEMICAL MANUFACTURERS ASSOCIATION 1825 CONNECTICUT AVENUE, N.W.
WASHINGTON, D.C. 20009
U.S. SENATE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS SUBCOMMITTEES
ON ENVIRONMENTAL POLLUTION AND RESOURCE PROTECTION
COVINGTON AND BURLING 888 SIXTEENTH STREET N.W. WASHINGTON, D.C.
20006
104708
HEARING
CORRESPONDENCE
SENATE HEARING
THE ATTACHED CHARTS RECENTLY PUBLISHED BY EPA GRAPHICALLY DEMONSTRATE
THE EXTENT OF FEDERAL REGULATORY CONTROL OVER TOXIC SUBSTANCES.
THE SWEEPING PROHIBITION OF THE RELEASE OR DISPOSAL OF ANY HAZARDOUS
SUBSTANCE IN THE MUSKIE-CULVER BILL WOULD IN EFFECT OVERTURN THIS
EXISTING SYSTEM OF FEDERAL LAWS AND THEIR IMPLEMENTING REGULATIONS. IT
WOULD RENDER UNLAWFUL CONDUCT THAT IS NOW PERMITTED AND SUBJECT TO
STRICT REGULATIONS DESIGNED TO PROTECT THE PUBLIC HEALTH AND WELFARE.
IT IS DIFFICULT TO BELIEVE THIS RESULT IS ONE THAT CONGRESS WOULD SEEK
TO IMPLEMENT AS CONSISTENT WITH THE PUBLIC INTEREST AND NATIONAL
ENVIRONMENTAL POLICY.
THEODORE L. GARRETT
STATEMENT ON SUPERFUND LEGISLATION
790907
790828
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 038 OF 39
FRIEDMAN F B
GARRETT T L
CHEMICAL MANUFACTURERS ASSOCIATION 1825 CONNECTICUT AVENUE, N.W.
WASHINGTON, D.C. 20009
U.S. SENATE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS SUBCOMMITTEES
ON ENVIRONMENTAL POLLUTION AND RESOURCE PROTECTION
COVINGTON AND BURLING 888 SIXTEENTH STREET N.W. WASHINGTON, D.C.
20006
104709
HEARING
CORRESPONDENCE
SENATE HEARING
LEGISLATIVE AUTHORITIES AFFECTING THE LIFE CYCLE OF A CHEMICAL
DIAGRAM OMITTED
STATEMENT ON SUPERFUND LEGISLATION
790907
790828
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 039 OF 39
FRIEDMAN F B
GARRETT T L
CHEMICAL MANUFACTURERS ASSOCIATION 1825 CONNECTICUT AVENUE, N.W.
WASHINGTON, D.C. 20009
U.S. SENATE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS SUBCOMMITTEES
ON ENVIRONMENTAL POLLUTION AND RESOURCE PROTECTION
COVINGTON AND BURLING 888 SIXTEENTH STREET N.W. WASHINGTON, D.C.
20006
104710
HEARING
CORRESPONDENCE
SENATE HEARING
FEDERAL LAWS DEALING WITH TOXIC SUBSTANCES
TABLE OMITTED.
STATEMENT ON THE NEED FOR COMPENSATION AND LIABILITY LEGISLATION FOR RELEASES
790907
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 001 OF 21
KAMLET KS
NATIONAL WILDLIFE FEDERATION
U.S. SENATE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS SUBCOMMITTEE ON
ENVIRONMENTAL POLLUTION AND RESOURCE PROTECTION
104711
HEARING
SENATE
I AM KENNETH S. KAMLET, A LAWYER AND BIOLOGIST, APPEARING ON BEHALF
OF THE NATIONAL WILDLIFE FEDERATION -- THE NATION'S LARGEST PRIVATE
CONSERVATION ORGANIZATION, WITH OVER 4 MILLION MEMBERS AND SUPPORTERS
NATIONWIDE. WE VERY MUCH APPRECIATE THIS OPPORTUNITY TO PRESENT OUR
VIEWS ON THE NEED FOR COMPENSATION AND LIABILITY LEGISLATION FOR
RELEASES OF TOXIC OR HAZARDOUS SUBSTANCES, AND SPECIFICALLY ON TWO
PENDING BILLS: S. 1480 AND S. 1341.
MY TESTIMONY WILL ADDRESS THE ELEVEN ISSUES RAISED IN THE COMMITTEE'S
TELEGRAM, BUT WILL EMPHASIZE THE FEDERATION'S CONCERN IN THE AREAS OF
COMPENSATION AND LIABILITY FOR DAMAGE TO NATURAL RESOURCES, NOTABLY FISH
AND WILDLIFE.
NEW LEGISLATION IN THIS AREA IS NEEDED BECAUSE OF SEVERAL CRITICAL
DEFICIENCIES IN EXISTING LEGAL REGIMES FOR COMPENSATION OF CLEAN UP AND
DAMAGE COSTS. AMONG THE MOST NOTABLE OF THESE DEFICIENCIES ARE THE
FOLLOWING:
A) THERE IS NO PROVISION IN CURRENT LAW FOR THIRD-PARTY DAMAGE
RECOVERY IN CONNECTION WITH HAZARDOUS SPILLS UNDER SECTION 311 OF THE
CLEAN WATER ACT ("CWA"). MEDICAL EXPENSES AND RELATED DAMAGE CLAIMS,
PERSONAL PROPERTY LOSSES, AND LOSSES TO NATURAL RESOURCES ARE ALL
NON-COMPENSABLE UNDER EXISTING STATUTORY LAW.
STATEMENT ON THE NEED FOR COMPENSATION AND LIABILITY LEGISLATION FOR RELEASES
790907
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 002 OF 21
KAMLET KS
NATIONAL WILDLIFE FEDERATION
U.S. SENATE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS SUBCOMMITTEE ON
ENVIRONMENTAL POLLUTION AND RESOURCE PROTECTION
104712
HEARING
SENATE
ALTHOUGH COMMON LAW TORT AND NUISANCE ACTIONS ARE THEORETICALLY
AVAILABLE FOR RECOVERY OF HEALTH AND PROPERTY DAMAGES, IN
B) EXISTING LAW LIMITS THE 311 PROGRAM TO SPECIFICALLY LISTED
HAZARDOUS SUBSTANCES. IN CONTRAST, ALL THAT SHOULD MATTER FOR LIABILITY
AND COMPENSATION PURPOSES IS THAT A DISCHARGE OR RELEASE ADVERSELY
IMPACTS MAN OR THE ENVIRONMENT. A COMPENSATION, LIABILITY, AND
EMERGENCY RESPONSE MECHANISM WHICH REQUIRES THE ADVANCE LISTING OF ALL
HAZARDOUS SUBSTANCES WHICH COULD CONCEIVABLY BE OF CONCERN SIMPLY CANNOT
DO THE JOB.
C) UNDER EXISTING LAW THE 311 PRO-RAM IS LIMITED TO SPILLS INTO
NAVIGABLE WATERS OF THE UNITED STATES. THE RESOURCE CONSERVATION AND
RECOVERY ACT ("RCRA") IS SIMILARLY LIMITED TO DISPOSAL IN DESIGNATED
HAZARDOUS WASTE LANDFILLS (AND OTHER LANDFILLS). MANY SERIOUS HAZARDOUS
SUBSTANCE PROBLEMS CROSS MEDIA LINES, AND AN EQUALLY COMPREHENSIVE
REMEDIAL PROGRAM IS REQUIRED TO ADDRESS IT.
D) EXISTING LAW LACKS A MANDATORY OR UNIFORM REPORTING SYSTEM FOR
HAZARDOUS SPILLS ( 311 REQUIRES ONLY THAT SPILLS OF LISTED HAZARDOUS
SUBSTANCES INTO US WATERS BE REPORTED TO THE COAST GUARD). THE DESIGN
OF AN ADEQUATE REMEDIAL PROGRAM IS SEVERELY HAMPERED BY THE LACK OF THE
DETAILED INFORMATION THAT ONLY A COMPREHENSIVE REPORTING SYSTEM CAN
GENERATE.
E) EMERGENCY CONTAINMENT AND CLEANUP ACTION IS OFTEN BEYOND THE
CAPABILITY OF STATE AGENCIES. EXISTING STATE LAWS CONCERNING
COMPENSATION AND LIABILITY ARE COMPLETELY INADEQUATE. FOR EXAMPLE, ONLY
11 STATES HAVE ANY LAWS GOVERNING COMPENSATION AND LIABILITY.
STATEMENT ON THE NEED FOR COMPENSATION AND LIABILITY LEGISLATION FOR RELEASES
790907
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 003 OF 21
KAMLET KS
NATIONAL WILDLIFE FEDERATION
U.S. SENATE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS SUBCOMMITTEE ON
ENVIRONMENTAL POLLUTION AND RESOURCE PROTECTION
104713
HEARING
SENATE
OF THESE, ONLY 3 MAKE PROVISION FOR COMPENSATING FOR DAMAGES TO REAL
OR PERSONAL PROPERTY; NONE EXPLICITLY PROVIDE FOR COMPENSATION FOR
PERSONAL INJURY; AND THE REST IMPOSE LIABILITY ONLY FOR CLEANUP AND
REMEDIAL COSTS (ALTHOUGH A FEW DO PROVIDE FOR RESTOCKING AND
REPLENISHING DEPLETED FISH AND WILDLIFE RESOURCES). ONLY 5 STATES HAVE
A PROVISION FOR STRICT LIABILITY FOR HAZARDOUS SUBSTANCES DISCHARGES,
AND NONE PROVIDE FOR MODIFYING THE CLAIMANT'S BURDEN OR PROVING
CAUSATION. FINALLY, STATES HAVE AN EVEN MORE LIMITED DEFINITION OF
COVERED HAZARDOUS SUBSTANCES REMEDYING DAMAGES CAUSED BY INACTIVE OR
ABANDONED HAZARDOUS WASTE LANDFILLS. SUCH DUMPS, AND THERE ARE WIDELY
DIFFERING ESTIMATES OF THEIR NUMBERS AND HAZARD POTENTIALS, HAVE BEEN
LIKENED TO "TIME BOMBS" WAITING TO EXPLODE. EVEN THE MOST VEHEMENT
INDUSTRY CRITICS OF SUPERFUND LEGISLATION HAVE ACKNOWLEDGED THAT NEW
FEDERAL LAW IS NEEDED TO PROTECT THE INTERESTS OF THE VICTIMS OF SUCH
ABANDONED HAZARDOUS WASTE DUMPS.
G) THE DAMAGES CAUSED BY HAZARDOUS SUBSTANCE RELEASED INTO THE
ENVIRONMENT FREQUENTLY EXCEED THE RESOURCES OF THOSE RESPONSIBLE; ONLY
THROUGH A FUND MECHANISM, WHICH CUMULATES THE RESOURCES OF A LARGE GROUP
OF GENERATORS OR RELEASORS (OR TAXPAYERS), CAN FULL COMPENSATION AND
DAMAGE REPAIR BE ACCOMPLISHED.
WE BELIEVE THAT A STRICT LIABILITY STANDARD IS ESSENTIAL IN ANY
HAZARDOUS SUBSTANCE LIABILITY AND COMPENSATION SCHEME BECAUSE OF THE
EXTREME PROOF PROBLEMS ASSOCIATED WITH CONVENTIONAL TORT LAW STANDARDS.
A STRICT LIABILITY STANDARD IS NECESSARY BOTH TO FULLY COMPENSATE
VICTIMS (AND REPAIR NATURAL RESOURCE DAMAGES) AND TO SERVE AS AN
ADEQUATE DETERRENT TO THOSE WHO WOULD ENGAGE IN HIGHLY RISKY ACTIVITIES
WITHOUT ADEQUATE SAFEGUARDS (UNDER PRESENT LAW, THE RISKS OF BEING HELD
ACCOUNTABLE FOR OTHER THAN INITIAL CLEANUP COSTS ARE VERY REMOTE).
STATEMENT ON THE NEED FOR COMPENSATION AND LIABILITY LEGISLATION FOR RELEASES
790907
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 004 OF 21
KAMLET KS
NATIONAL WILDLIFE FEDERATION
U.S. SENATE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS SUBCOMMITTEE ON
ENVIRONMENTAL POLLUTION AND RESOURCE PROTECTION
104714
HEARING
SENATE
/1/ 3 HURL. & COLT 774 (1865); L.R. 1 EXCH. 265 (1866); L.R 3 H.L.
330 (1868).
IMPOSING STRICT LIABILITY ON THE GENERATORS, HANDLERS, AND DISPOSERS
OF HAZARDOUS SUBSTANCES MAKES SENSE IN TERMS OF COUNTERPARTS -- IN ORDER
TO FULLY REFLECT THEIR COST TO SOCIETY. IF THAT PLACES SOME GOODS AND
SERVICES AT A COMPETITIVE DISADVANTAGE RELATIVE TO LESS COSTLY
SUBSTITUTES, THEN THOSE GOODS AND SERVICES DON'T DESERVE TO SURVIVE
(BECAUSE THE RETURNS THEY ARE YIELDING TO SOCIETY DON'T OUTWEIGH THEIR
SOCIETAL COSTS). EXAMPLE, THE MID-NINETEENTH CENTURY CASE OF RYLANDS V.
FLETCHER /1/ INVOLVED A MILL OWNER WHO CONSTRUCTED A DAM TO GET WATER
POWER. THE RESULTING RESERVOIR WAS LOCATED OVER ANCIENT ABANDONED COAL
MINES. ALTHOUGH THE MILL OWNER HAD NO REASON TO SUSPECT THAT THE OLD
MINE SHAFTS LED INTO AN OPERATING COAL MINE, THE MILL OWNER WAS HELD
LIABLE FOR THE DAMAGE TO THE OPERATING MINE WHEN THE DAM WAS CLOSED AND
WATER SEEPED INTO AND FLOODED THE MINE. THE GOVERNING RULE OF LAW WAS
STATED BY MR. JUSTICE BLACKBURN IN THE COURT OF EXCHEQUER CHAMBER:
"(I)T SEEMS BUT REASONABLE AND JUST THAT THE NEIGHBOR, WHO HAS
BROUGHT SOMETHING ON HIS OWN PROPERTY WHICH WAS NOT NATURALLY THERE,
HARMLESS TO OTHERS SO LONG AS IT IS CONFINED TO HIS OWN PROPERTY, BUT
WHICH HE KNOWS TO BE MISCHIEVOUS IF IT GETS ON HIS NEIGHBOR'S, SHOULD BE
OBLIGED TO MAKE GOOD THE DAMAGE WHICH ENSUES IF HE DOES NOT SUCCEED IN
CONFINING IT TO HIS OWN PROPERTY.
STATEMENT ON THE NEED FOR COMPENSATION AND LIABILITY LEGISLATION FOR RELEASES
790907
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 005 OF 21
KAMLET KS
NATIONAL WILDLIFE FEDERATION
U.S. SENATE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS SUBCOMMITTEE ON
ENVIRONMENTAL POLLUTION AND RESOURCE PROTECTION
104715
HEARING
SENATE
BUT FOR HIS ACT IN BRINGING IT THERE NO MISCHIEF COULD HAVE ACCRUED,
AND IT SEEMS BUT JUST THAT HE SHOULD AT HIS PERIL KEEP IT THERE, SO THAT
NO MISCHIEF MAY ACCRUE, OR ANSWER FOR THE NATURAL AND ANTICIPATED
CONSEQUENCES. AND UPON AUTHORITY, THIS WE THINK IS ESTABLISHED TO BE
THE LAW, WHETHER THE THINGS SO BROUGHT BE BEASTS, OR WATER, OR FILTH, OR
STENCHES."
APPLYING THIS RULE AS A MATTER OF FEDERAL LAW TO HANDLERS OF
HAZARDOUS SUBSTANCES IS BUT A NATURAL AND NECESSARY USE OF AN
ESTABLISHED DOCTRINE.
WE SUPPORT THE IMPOSITION OF JOINT, SEVERAL, AND STRICT LIABILITY AS
FOUND IN 4 OF THE COMMITTEE BILL (S. 1480) AND 604 OF THE ADMINISTRATION
BILL (S. 1341). HOWEVER, WE PREFER THE APPROACH OF THE COMMITTEE BILL,
WHICH EXTENDS SUCH LIABILITY TO "LOSS DUE TO PERSONAL INJURY" IN
ADDITION TO THE LIABILITY PROVIDED FOR OF EARNING CAPACITY RESULTING
FROM INJURY TO OR DESTRUCTION OF CERTAIN NATURAL RESOURCES (LIMITED TO
LOSS OF OPPORTUNITY TO HARVEST MARINE LIFE IN S. 1341). S. 1480 IS
PREFERABLE TO US AS WELL BECAUSE OF ITS COVERAGE OF LOSSES OF USE OF
NATURAL RESOURCES.
WE SUPPORT THE APPROACH OF 4(C) OF THE COMMITTEE BILL, WHICH PROVIDES
-- AT LEAST IN CONNECTION WITH LIABILITY FOR MEDICAL EXPENSES -- THAT
THE ORDINARY REQUIREMENTS FOR PROOF OF CAUSE IN FACT BE RELAXED IN FAVOR
OF A "REASONABLY RELATED" TEST, UNDER WHICH STATISTICAL CORRELATION
WOULD SUFFICE TO DEMONSTRATE CAUSALITY.
STATEMENT ON THE NEED FOR COMPENSATION AND LIABILITY LEGISLATION FOR RELEASES
790907
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 006 OF 21
KAMLET KS
NATIONAL WILDLIFE FEDERATION
U.S. SENATE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS SUBCOMMITTEE ON
ENVIRONMENTAL POLLUTION AND RESOURCE PROTECTION
104716
HEARING
SENATE
BECAUSE TOXIC SUBSTANCES ARE DIFFICULT TO TRACE AND ARE OFTEN SLOW TO
MANIFEST THEIR EFFECTS ON THE ENVIRONMENT, IT IS FREQUENTLY VIRTUALLY
IMPOSSIBLE TO RELATE SPECIFIC CAUSES TO SPECIFIC EFFECTS. THE COMMITTEE
BILL REFLECTS A DESIRABLE COMMON-SENSE APPROACH TO CAUSALITY, UNDER
WHICH IT IS SUFFICIENT TO DEMONSTRATE THAT A GIVEN INJURY IS MORE
PROBABLY THAN NOT RELATED TO A GIVEN RELEASE. OUR ONLY QUARREL WITH THE
COMMITTEE'S PROPOSAL IN THIS REGARD IS ITS FAILURE TO ENCOMPASS
DEMONSTRABLE INJURIES TO NATURAL RESOURCES IN ADDITION TO MEDICAL
EXPENSES. SPECIFICALLY, WE BELIEVE THAT RULES OF CAUSATION SHOULD BE
ALTERED TO PERMIT THE USE OF STATISTICAL EVIDENCE IN ASSESSING LIABILITY
FOR NATURAL RESOURCE DAMAGES. INDEED, SUCH AN ALTERATION OF CAUSATION
RULES IS PROBABLY EVEN MORE NECESSARY IN THE NATURAL RESOURCES AREA THAN
IN THE MEDICAL EXPENSES SITUATION -- BECAUSE OF THE ADDITIONAL SEVERE
DIFFICULTIES IN PROVIDING MONETARY ASSESSMENTS OF THE IMPACTS OF NATURAL
RESOURCE IMPAIRMENTS. THE DOUBLE BURDEN OF QUANTIFYING THE IMPACTS AND
DEMONSTRATING ORDINARY PROXIMATE CUASE WOULD PLACE CRIPPLING OBSTACLES
IN THE WAY OF MOST RECOVERIES.
WE SUPPORT THE APPROACH OF THE COMMITTEE BILL IN 8 OF ALLOWING
STATE ( PERHAPS THE TERM "RELEASE" WHICH IS DEFINED IN THE BILL
WOULD BE PREFERABLE TO THE TERM "DISCHARGE" WHICH IS NOT).
STATEMENT ON THE NEED FOR COMPENSATION AND LIABILITY LEGISLATION FOR RELEASES
790907
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 007 OF 21
KAMLET KS
NATIONAL WILDLIFE FEDERATION
U.S. SENATE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS SUBCOMMITTEE ON
ENVIRONMENTAL POLLUTION AND RESOURCE PROTECTION
104717
HEARING
SENATE
THE ADMINSTRATION BILL TAKES THE LESS DESIRABLE APPRAOCH (IN 612
(B)) OF PROVIDING PARTIAL PREEMPTION OF STATE INVOLVEMENT (I.E.,
THE STATES' ROLE IS LIMITED TO LOSSES NOT COMPENSATED UNDER THE
BILL AND TO THOSE ASSOCIATED WITH UNCONTROLLED HAZARDOUS WASTE
DISPOSAL SITES). A COEQUAL STATE ROLE IS ESSENTIAL SINCE MOST
HAZARDOUS SUBSTANCE RELEASES ARE PROBABLY BEST HANDLED AT THE
STATE AND LOCAL LEVEL. WE DOUBT IF THERE IS MUCH RISK OF A STATE
UNILATERALLY IMPOSING UNDULY ONEROUS BURDENS ON INDUSTRY BEYOND
THE REQUIREMENTS OF FEDERAL LAW, ABSENT THE EXISTENCE OF
OVERRIDINGLY SERIOUS STATE-LEVEL PROBLEMS. THE PRESSURES OF
MAINTAINING A COMPETITIVE POSITION RELATIVE TO OTHER STATES
IN ATTRACTING INDUSTRY WOULD ENSURE THIS.
WE ARE NOT EQUIPPED TO RESPOND TO SPECIFIC FINANCIAL RESPONSIBILITY
REQUIREMENTS. WE BELIEVE, HOWEVER, THAT SUFFICIENT FINANCIAL
RESPONSIBILITY SHOULD HAVE TO BE DEMONSTRATED TO MEET ALL POTENTIAL
LIABILITIES ASSOCIATED WITH HAZARDOUS SUBSTANCE RELEASES. WE DO NOT
FAVOR THE IMPOSITION OF ARTIFICIAL LIABILITY LIMITS -- EXCEPT POSSIBLY
AS A REWARD FOR PARTICULARLY CONSCIENTIOUS EFFORTS TO AVOID AND CONTAIN
UNCONTROLLED ENVIRONMENTAL RELEASES.
IN LIGHT OF THE RECENT MEXICAN OIL RIG BLOWOUT (PEMEX SPILL) WHICH
NOW JEOPARDIZES MUCH OF THE US GULF COAST, THE FEDERATION IS ESPECIALLY
INTERESTED IN FINANCIAL RESPONSIBILITY REQUIREMENTS APPLICABLE TO THOSE
CONNECTED WITH OFFSHORE FACILITIES, SUCH AS OIL RIGS. ALTHOUGH IT HAS
NOT YET BEEN DETERMINED IN CONNECTION WITH THE MEXICAN SPILL WHETHER
FAULTY EQUIPMENT WAS A FACTOR IN THE ENSUING DISASTER, IT SEEMS CLEAR
THAT THE US COMPANY (SEDCO) THAT OWNED THE RIG (AND EVIDENTLY LEASED IT
TO MEXICO FOR THREE YEARS) SHOULD BE ACCOUNTABLE -- IF FAULTY EQUIPMENT
IN FACT WAS INVOLVED -- FOR DAMAGES CAUSED TO US CITIZENS AND RESOURCES.
(APART FROM ITS NON-APPLICATION TO OIL SPILLS AT ALL) TO ENCOMPASS THE
MEXICAN SPILL SITUATION -- AT LEAST FROM A FINANCIAL RESPONSIBILITY
STANDPOINT. IT IS UNCLEAR, HOWEVER, WHETHER ITS PROHIBITIONS EXTEND TO
RELEASES INTO INTERNATIONAL WATERS WHICH ARE TRANSPORTED BY CURRENTS
INTO US WATERS (I.E., DOES A 'RELEASE OR DISPOSAL . . . INTO . . . THE
NAVIGABLE WATERS, OR THE WATERS OF THE CONTIGUOUS ZONE, OR WHICH MAY
AFFECT NATURAL RESOURCES BELONGING TO, APPERTAINING TO OR UNDER THE
EXCLUSIVE MANAGEMENT AUTHORITY OF THE UNITED STATES . . .," ENCOMPASS
RELEASES INTO INTERNATIONAL WATERS WHICH SUBSEQUENTLY ENTER THESE
AREAS?).
THE ADMINISTRATION BILL, BY CONTRAST, ALTHOUGH IT CLEARLY COVERS OIL
SPILLS, LIMITS FINANCIAL RESPONSIBILITY AND OTHER REQUIREMENTS FOR
OFFSHORE OIL DRILLING AND PROCESSING ACTIVITIES TO FACILITIES "SUBJECT
TO THE JURISDICTION OF THE UNITED STATES" ( 601(T), 605(B))). IT IS FAR
FROM CLEAR THAT AN OIL RIG LEASED TO A FOREIGN COMPANY AND OPERATING IN
INTERNATIONAL WATERS WOULD BE SUBJECT TO US JURISDICTION SOLELY BECAUSE
OF ITS US OWNERSHIP.
THE NATIONAL WILDLIFE FEDERATION FAVORS A LIABILITY AND COMPENSATION
SCHEME WHICH APPLIES TO OIL AS WELL AS HAZARDOUS CHEMICALS, AND WHICH
MAKES CLEAR THE LIABILITY AND RESPONSIBILITY OF US COMPANIES FOR
RELEASES FROM OFFSHORE FACILITIES WHICH THEY OWN, OPERATE, OR
MANUFACTURE, EVEN WHEN OPERATING IN INTERNATIONAL WATERS -- AT LEAST
WHERE THE RELEASES ARE ATTRIBUTABLE IN WHOLE OR IN PART TO EQUIPMENT
DEFECTS (OR OPERATOR? ERROR ON THE PART OF US OPERATORS).
STATEMENT ON THE NEED FOR COMPENSATION AND LIABILITY LEGISLATION FOR RELEASES
790907
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 008 OF 21
KAMLET KS
NATIONAL WILDLIFE FEDERATION
U.S. SENATE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS SUBCOMMITTEE ON
ENVIRONMENTAL POLLUTION AND RESOURCE PROTECTION
104718
HEARING
SENATE
WE SUPPORT THE TRUST FUND CONCEPT, BUT BELIEVE THAT THE FUND SHOULD
BE SUPPORTED BY ASSESSMENTS ON THE INDUSTRIAL OPERATIONS GIVING RISE TO
OIL AND HAZARDOUS SUBSTANCE RELEASES (RATHER THAN PAID FOR BY THE
TAXPAYER).
THE FUND AS APPLY TO RECOVERIES FROM PRIVATE PARTIES.
WE BELIEVE THAT THE FUND SHOULD CONSIST OF INDUSTRY RATHER THAN
TAXPAYER MONEY. THIS IS APPROPRIATE BECAUSE THOSE WHO BENEFIT FROM THE
GENERATION, HANDLING, AND DISPOSAL OF OIL AND HAZARDOUS SUBSTANCES
SHOULD BE THE ONES WHO PAY THE COSTS OF CLEANUP AND COMPENSATION. TO
THE EXTENT THESE COSTS ARE PASSED ON TO CONSUMERS IN THE FORM OF HIGHER
PRICES FOR GOODS AND SERVICES, THIS TOO IS AS IT SHOULD BE. HAZARDOUS
ACTIVITIES SHOULD HAVE A MARKET PRICE THAT REFLECTS THE TRUE SOCIETAL
COSTS OF SUCH ACTIVITIES.
THE FEDERATION IS NOT IN A POSITION TO COMMENT ON SPECIFIC FEE
LEVELS. IDEALLY, HOWEVER, THE FEES IMPOSED SHOULD BE ADEQUATE TO
GENERATE A FUND LARGE ENOUGH TO MEET ALL OF THE DEMANDS ON THE FUND.
IDEALLY AS WELL, THE FECS SHOULD BE EQUITABLY DISTRIBUTED AMONG THE
GENERATORS OF THE HAZARDS GIVING RISE TO CLAIMS AGAINST THE FUND,
PREFERABLY IN PROPORTION TO THE DEGREE OF HAZARD POSED BY EACH
GENERATOR.
STATEMENT ON THE NEED FOR COMPENSATION AND LIABILITY LEGISLATION FOR RELEASES
790907
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 009 OF 21
KAMLET KS
NATIONAL WILDLIFE FEDERATION
U.S. SENATE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS SUBCOMMITTEE ON
ENVIRONMENTAL POLLUTION AND RESOURCE PROTECTION
104719
HEARING
SENATE
THE OPTIMUM APPROACH WOULD INVOLVE AN ACTUARIAL ASSESSMENT OF RISKS,
WITH PREMIUMS FOR EACH HAZARDOUS SUBSTANCE GENERATOR, HANDLER, AND
DISPOSER, BASED UPON SUCH ASSESSMENTS FOR THE PARTICULAR ACTIVITY
INVOLVED. THIS IS THE APPROACH TAKEN BY THE PRIVATE INSURANCE INDUSTRY
IN INSURING AGAINST THE RISKS ASSOCIATED WITH MORE CONVENTIONAL
ACTIVITIES. PRESUMABLY, THE MAIN FACTOR KEEPING THE PRIVATE INSURANCE
INDUSTRY OUT OF A MORE EXTENSIVE ROLE IN HAZARDOUS SUBSTANCES ACTIVITIES
AND IN ASSOCIATED LIABILITY AND COMPENSATION SCHEMES IS THE LACK OF
SUFFICIENT ACTUARIAL EXPERIENCE WITH THE ATTENDANT RISKS AND THE
RELUCTANCE OF INSURERS TO ASSUME LIABILITY FOR POTENTIALLY CATASTROPHIC
DISASTERS WITH LARGE AND GENERALLY UNKNOWN PRICE TAGS. AN APPROACH
WHICH MAY BE WORTH CONSIDERING AS A MEANS OF ATTRACTING MORE ACTIVE
INSURANCE INDUSTRY INVOLVEMENT WOULD
THE ADVANTAGES TO SUCH A PRIVATE INSURANCE SCHEME, APART FROM
MINIMIZING THE MAJOR FEDERAL ROLE INHERENT IN ANY TRUST FUND APPROACH
INCLUDE:
A) A MORE EQUITABLE ALLOCATION OF THE ASSESSMENT BURDEN THROUGHOUT
THE HAZARDOUS SUBSTANCES INDUSTRY BASED UPON IMPARTIAL ACTUARIAL
COMPUTATIONS;
B) ADJUSTMENT OF PREMIUMS TO REWARD CONSCIENTIOUS EFFORTS TO MINIMIZE
RISKS AND TO PENALIZE UNDULY RISKY ACTIVITIES; AND
C) MINIMIZATION OF CONCERNS BY THE HAZARDOUS SUBSTANCES INDUSTRY
REGARDING THE UNKNOWNS INHERENT IN A NEW GOVERNMENT RUN TRUST FUND.
STATEMENT ON THE NEED FOR COMPENSATION AND LIABILITY LEGISLATION FOR RELEASES
790907
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 010 OF 21
KAMLET KS
NATIONAL WILDLIFE FEDERATION
U.S. SENATE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS SUBCOMMITTEE ON
ENVIRONMENTAL POLLUTION AND RESOURCE PROTECTION
104720
HEARING
SENATE
THE NATIONAL WILDLIFE FEDERATION DOES NOT NECESSARILY ADVOCATE SUCH A
PRIVATE INSURANCE SCHEME AT THIS TIME, PENDING FURTHER STUDY AND
ANALYSIS. IT DOES, HOWEVER, SEEM TO BE SOMETHING WORTH AIMING FOR AS A
DESIRABLE ULTIMATE OBJECTIVE.
WE HAVE NO STRONG VIEWS ON THE PRECISE FEE ASSESSMENT MECHANISM.
HOWEVER, IN THE INTEREST OF MAXIMIZING THE EXTENT TO WHICH THE PRICE OF
HAZARDOUS GOODS AND SERVICES REFLECTS THE SOCIETAL COSTS INHERENT IN
THOSE ACTIVITIES, IT IS DESIRABLE THAT THE FEE STRUCTURE CONCENTRATE ON
THOSE GOODS AND SERVICES WITH THE GREATEST HAZARD POTENTIAL TO SOCIETY.
POSSIBLE ALTERNATIVES WHICH THE COMMITTEE MAY WISH TO CONSIDER -- IN
PLACE OF OR IN ADDITION TO THE APPROACHES OF S. 1480 AND S. 1341 --
WOULD BE:
A) ASSESSING FEES ON PCRA HAZARDOUS WASTE PERMITTEES; AND
B) ASSESSING THE MAJOR FEE BURDEN ON THE PRIORITY INDUSTRIES
DESIGNATED BY EPA (ON THE BASIS OF THE TOXICITY OF THEIR WATER
DISCHARGES).
THE NATIONAL WILDLIFE FEDERATION REGARDS THE MAIN FUNCTION OF THE FEE
SYSTEM AND OF THE TRUST FUND WHICH IT SUPPORTS AS BEING: (A)
INTERNALIZING THE COSTS TO SOCIETY OF ENGAGING IN RISKY ENVIRONMENTAL
DAMAGE. IT WOULD CERTAINLY BE DESIRABLE, ALTHOUGH WE DO NOT VIEW IT AS
ESSENTIAL TO THE OPERATION OF THE FEE SYSTEM, IF IT COULD BE USED TO
REWARD DESIRABLE CONDUCT AND PENALIZE UNDESIRABLE CONDUCT.
STATEMENT ON THE NEED FOR COMPENSATION AND LIABILITY LEGISLATION FOR RELEASES
790907
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 011 OF 21
KAMLET KS
NATIONAL WILDLIFE FEDERATION
U.S. SENATE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS SUBCOMMITTEE ON
ENVIRONMENTAL POLLUTION AND RESOURCE PROTECTION
104721
HEARING
SENATE
THE PRIVATE INSURANCE SYSTEM DISCUSSED ABOVE, THROUGH ADJUSTMENTS IN
PREMIUMS TO REFLECT ACTUAL RISKS, WOULD BE ONE WAY OF PROVIDING
INCENTIVES TO SAFE OPERATION.
WITHIN THE CONTEXT OF THE PRESENT BILLS, A LIABILITY LIMITATION
SYSTCM COULD BE USED TO ACCOMPLISH A SIMILAR RESULT. INSTEAD OF
SPECIFYING LIABILITY LIMITS IN ALL CASES EXCEPT WHERE THE HAZARDOUS
SUBSTANCE RELEASOR IS GUILTY OF GROSS NEGLIGENCE OR WILLFULL MISCONDUCT,
LIABILITY LIMITATIONS MIGHT APPROPRIATELY BE CONFINED TO THOSE
FACILITIES CERTIFIED BY THE ENVIRONMENTAL PROTECTION AGENCY AND THE
RELEVANT STATE AGENCY TO BE IN FULL COMPLIANCE WITH ALL APPLICABLE
REGULATORY REQUIREMENTS AND TO BE MAKING A GOOD FAITH EFFORT TOWARD A
MAXIMUM REDUCTION IN THE RISK OF HAZARDOUS SUBSTANCES RELEASED TO THE
ENVIRONMENT.
STATEMENT ON THE NEED FOR COMPENSATION AND LIABILITY LEGISLATION FOR RELEASES
790907
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 012 OF 21
KAMLET KS
NATIONAL WILDLIFE FEDERATION
U.S. SENATE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS SUBCOMMITTEE ON
ENVIRONMENTAL POLLUTION AND RESOURCE PROTECTION
104722
HEARING
SENATE
LIABILITY MECHANISM
THE NATIONAL WILDLIFE FEDERATION COMMENDS THESE SUBCOMMITTEES (AND
SENATOR CHAFEE, IN PARTICULAR) FOR INCLUDING NATURAL RESOURCEIMPACTS IN
THE LIABILITY AND COMPENSATION SCHEME OF S. 1480.
OIL AND HAZARDOUS SUBSTANCE SPILLS HAVE HAD A MAJOR IMPACT ON FISH
AND WILDLIFE RESOURCES THROUGHOUT THE NATION. THE NEW YORK BIGHT OFF
THE NEW YORK AND JEW JERSEY COASTS, AND THE HOUSTON SHIP CHANNEL AND
MOBILE BAY ON THE GULF COAST ARE EXAMPLES OF AREAS IN WHICH POLLUTANT
DISCHARGES AND SPILLS HAVE HAD MAJOR ADVERSE IMPACTS ON RESIDENT FISH
AND WILDLIFE SPECIES. (NOT ONLY HAS THIS HAD IMPORTANT ECONOMIC
IMPLICATIONS FOR HUMAN FISH AND SHELLFISH).
DATA COMPILED BY THE ENVIRONMENTAL PROTECTION AGENCY ON FISH KILLS
CAUSED BY POLLUTION INDICATES A GENERALLY INCREASING RATE OF REPORTED
FISH KILLS IN RECENT YEARS. FOR EXAMPLE, BETWEEN 1961 AND 1971,
ESTIMATED FISH KILLS REPORTED INCREASED FROM ABOUT 20 MILLION IN 1961 TO
235 MILLION IN 1971. NEARLY 74 MILLION FISH WERE REPORTED KILLED IN
1971 AS A DIRECT RESULT OF POLLUTION, INCLUDING ONE MILLION OR MORE FISH
KILLED BY POLLUTION IN EACH OF 28 INCIDENTS. IN THE 641 OF THE 860
REPORTED INCIDENTS FOR WHICH SOURCES OFPOLLUTION WERE IDENTIFIED
MUNICIPAL, INDUSTRIAL, AND AGRICULTURAL OPERATIONS WERE SHOWN TO BE THE
MAJOR CONTRIBUTING SOURCES.
ALTHOUGH WE DON'T MEAN TO SUGGEST THAT ALL FISH KILLS IN THE US ARE
THE RESULT OF HAZARDOUS SUBSTANCE RELEASES OF THE SORT DEALT WITH IN THE
TWO SUPERFUND BILLS PRESENTLY BEING CONSIDERED, IT IS QUITE CLEAR THAT,
AT A MINIMUM, TENS OF MILLIONS OF FISH ARE KILLED EACH YEAR AS A DIRECT
RESULT OF INDUSTRIAL POLLUTION.
STATEMENT ON THE NEED FOR COMPENSATION AND LIABILITY LEGISLATION FOR RELEASES
790907
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 013 OF 21
KAMLET KS
NATIONAL WILDLIFE FEDERATION
U.S. SENATE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS SUBCOMMITTEE ON
ENVIRONMENTAL POLLUTION AND RESOURCE PROTECTION
104723
HEARING
SENATE
ADDITIONAL TENS OF MILLIONS OF FISH ARE DOUBTLESS CONTAMINATED WITH
TOXIC SUBSTANCES WHICH BOTH IMPAIR THEIR OWN ABILITY TO SURVIVE AND ALSO
REPRESENT A DANGER TO THE PREDATORS THAT CONSUME THEM (INCLUDING MAN).
OTHER IMPORTANT SPECIES OF WILDLIFE ARE LIKEWISE UNDER CONSTANT
ASSAULT THROUGHOUT THE NATION AS A RESULT OF OIL AND HAZARDOUS SUBSTANCE
ACTIVITY. A STRONG INDICATION OF THIS CAN BE OBTAINED FROM A COMPARISON
OF SOME OF THE STATES RICHEST IN ECOLOGICALLY IMPORTANT WETLANDS --
WHICH ARE SPAWNING AND NUTURING GROUNDS FOR AN UNTOLD ARRAY AND NUMBER
OF FISH, WATERFOWL, AND OTHER WILDLIFE SPECIES -- WITH A LISTING OF THE
TOP TWENTY STATES FROM A HAZARDOUS WASTE GENERATION STANDPOINT. AMONG
THE STATES APPEARING ON BOTH LISTS ARE CALIFORNIA, TEXAS, LOUISIANA,
FLORIDA, WISCONSIN, AND GEORGIA. A RECENTLY COMPLETED NWF SURVEY OF
STATE AND TERRITORIAL TOXIC SUBSTANCES PROGRAMS (WHICH QUERIED STATE
THAT, OF THE SIX LISTED STATES, ALL BUT CALIFORNIA AND FLORIDA RANKED IN
THE BOTTOM HALF OF THE SURVEYED STATES. (CALIFORNIA RANKED 23RD AND
FLORIDA 18TH OUT OF 51). TWO OF THE SIX STATES (GEORGIA AND WISCONSIN)
RANKED IN THE BOTTOM TEN, WITH GEORGIA COMING IN DEAD LAST.
WHAT THIS INDICATES -- AND IT WAS NOT POSSIBLE TO COMPILE MORE DIRECT
STATISTICS ON SHORT NOTICE -- IS THAT HAZARDOUS CHEMICAL HANDLING
ACTIVITIES IN THE UNITED STATES TEND TO BE LARGELY CONCENTRATED IN AREAS
WHICH ARE AMONG THE MOST ECOLOGICALLY SENSITIVE AND PRODUCTIVE THIS
NATION HAS TO OFFER.
STATEMENT ON THE NEED FOR COMPENSATION AND LIABILITY LEGISLATION FOR RELEASES
790907
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 014 OF 21
KAMLET KS
NATIONAL WILDLIFE FEDERATION
U.S. SENATE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS SUBCOMMITTEE ON
ENVIRONMENTAL POLLUTION AND RESOURCE PROTECTION
104724
HEARING
SENATE
THIS UNHOLY LINKAGE IS EVEN MORE DIRE IN ITS IMPLICATIONS WHEN
CONSIDERED IN CONJUNCTION WITH THE GENERALLY INADEQUATE LEVEL OF STATE
TOXICS REGULATION ASSOCIATED WITH IT. THE INEVITABLE CONSEQUENCY:
MAJOR WETLAND AND WILDLIFE IMPACTS DUE TO HAZARDOUS SUBSTANCE RELEASES
IN AND AROUND SENSITIVE WETLANDS.
FINALLY, WE MIGHT POINT OUT THAT OIL SPILLS -- PARTICULARLY WHEN THEY
WASH UP ON BEACHES OR ENTER SENSITIVE WETLAND AND ESTUARINE AREAS -- CAN
HAVE CATASTROPHIC ADVERSE IMPACTS, PARTICULARLY ON SHOREBIRD, WATERFOWL,
AND SHELLFISH POPULATIONS. PARTICULARLY WHERE BIRDS AND MAMMALS ARE
AFFECTED, RECOVERIES OF IMPACTED POPULATIONS IF THEY OCCUR AT ALL WILL
REQUIRE LONG PERIODS OF RECUPERATION -- OWING TO THE RELATIVELY LONG
REPRODUCTIVE CYCLES OF HIGHER VERTEBRATE SPECIES. THE INFAMOUS SANTA
BARBARA AND AMOCO CADIZ OIL SPILLS ARE ONLY TWO OF MANY GRAPHIC EXAMPLES
ONE COULD GIVE OF THE MAJOR IMPACTS THAT INDIVIDUAL TANKER, PIPELINE,
AND OIL RIG SPILLS CAN AND DO HAVE ON FISH AND WILDLIFE SPECIES. ONE
CAN ONLY HOPE THAT THE RECENT PEMEX SPILL, WHICH STILL IMPERILS OUR GULF
COAST, DOES NOT GO DOWN IN THE HISTORY BOOKS AS SURPASSING THESE SPILLS
IN THE DEVASTATION CAUSED TO SHELLFISH AND WILDLIFE POPULATIONS.
THE SERIOUSNESS OF OIL SPILL IMPACTS ON IMPORTANT NATURAL RESOURCE
VALUES IS A STRONG ARGUMENT FOR SUPERFUND LEGISLATION WHICH ADDRESSES
RELEASES OF BOTH OIL AND HAZARDOUS SUBSTANCES. SUBSTANCERELEASES,
DEMONSTRATES THAT SUCH RELEASES -- UNLESS CONTROLLED AND BROUGHT UNDER A
COMPREHENSIVE LIABILITY AND COMPENSATION MECHANISM, WHICH ENCOMPASSES
RESTITUTION OF NATURAL RESOURCE DAMAGES -- REPRESENT A SERIOUS AND
GROWING THREAT TO ONE OF THIS NATION'S MOST IMPORTANT NATURAL RESOURCES:
ITS FISH AND WILDLIFE.
STATEMENT ON THE NEED FOR COMPENSATION AND LIABILITY LEGISLATION FOR RELEASES
790907
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 015 OF 21
KAMLET KS
NATIONAL WILDLIFE FEDERATION
U.S. SENATE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS SUBCOMMITTEE ON
ENVIRONMENTAL POLLUTION AND RESOURCE PROTECTION
104725
HEARING
SENATE
CONSERVATION IS WHAT IT'S ALL ABOUT. A WISE MAN ONCE PUT IT THIS
WAY:
"CONSERVATION TEACHES THE PRINCIPLES OF WISE STEWARDSHIP. IT
COUNSELS FORESIGHT IN PLACE OF SELFISHNESS; VISION IN PLACE OF GREED;
REVERENCE IN PLACE OF DESTRUCTIVENESS. CONSERVATION INVOLVES CONCERN
FOR OTHER GENERATIONS . . . CONSERVATION IS DESIGNED TO PRESERVE THE
RICHES OF THE EARTH . . .(F)OR HUMAN HAPPINESS AND WELFARE TILL THE END
OF TIME."
THE NATURAL RESOURCE DAMAGE PROVISIONS OF THE COMMITTEE BILL ARE
FAITHFUL TO THESE IMPORTANT PRINCIPLES AND THEY HAVE OUR SUPPORT AND OUR
GRATITUDE.
THE COMMITTEE BILL PRESENTLY RELIES TOTALLY ON LEGAL ACTION BY THE
PRESIDENT AND THE STATES, AS TRUSTEES OF THE COUNTRY'S NATURAL
RESOURCES, TO RECOVER FOR DAMAGES TO NATURAL RESOURCES.
WE ARE CONCERNED THAT, UNLESS THE LEGISLATION ENABLES INTERESTED AND
AFFECTED PRIVATE CITIZENS TO INITIATE SUCH DAMAGE RECEOVERY ACTIONS ON
THEIR OWN -- IN INSTANCES WHERE THE PRESIDENT AND THE STATES DO NOT
ADEQUATELY DISCHARGE THEIR TRUSTEESHIP RESPONSIBILITIES -- POLITICAL
EXPEDIENCY, TIMIDITY, BUDGETARY CONSTRAINTS, PROSECUTORIAL DISCRETION,
AND HIGHER PRIORITY CONCERNS WILL ALL ENSURE THAT THE HIGHLY DESIRABLE
OBJECTIVES OF THE COMMITTEE'S BILL WILL BEAR ONLY VERY LIMITED FRUIT.
FOR THIS REASON, THE FEDERATION STRONGLY RECOMMENDS INCORPORATION OF A
CITIZEN SUIT PROVISION OF THE SORT CONTAINED IN THE CLEAN WATER ACT,
RCRA, AND DOZENS OF OTHER ENVIRONMENTAL AND OTHER STATUTES ENACTED
WITHIN THE PAST DECADE. WITHIN TWO YEARS OF THE ENACTMENT OF SUPERFUND
LEGISLATION, REGULATIONS FOR THE ASSESSMENT OF DAMAGES.
STATEMENT ON THE NEED FOR COMPENSATION AND LIABILITY LEGISLATION FOR RELEASES
790907
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 016 OF 21
KAMLET KS
NATIONAL WILDLIFE FEDERATION
U.S. SENATE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS SUBCOMMITTEE ON
ENVIRONMENTAL POLLUTION AND RESOURCE PROTECTION
104726
HEARING
SENATE
"FOR INJURY TO, DESTRUCTION OF, OR LOSS OF NATURAL RESOURCES
RESULTING FROM A DISCHARGE OR RELEASE OF A HAZARDOUS SUBSTANCE . . ."
SECTION 6(E)(1)(A). THESE REGULATIONS ARE TO SPECIFY: "(1) STANDARD
PROCEDURES FOR SIMPLIFIED ASSESSMENTS REQUIRING MINIMAL FIELD
OBSERVATION, INCLUDING ESTABLISHING MEASURES OF DAMAGES BASED ON UNITS
OF DISCHARGE OR RELEASE OR UNITS OF AFFECTED AREA, AND (II) ALTERNATIVE
PROTOCOLS FOR CONDUCTING ASSESSMENTS IN INDIVIDUAL CASES TO DETERMINE
THE TYPE AND EXTENT OF SHORT AND LONG TERM INJURY, DESTRUCTION, OR
LOSS." SECTION 6(E)(1)(B).
WE BELIEVE THESE PROVISIONS CAN BE GREATLY STRENGTHENED BY THE
ADOPTION OF THREE MODIFICATIONS TO THE APPROACH PROPOSED BY THE
COMMITTEE: (A) ESTABLISH AN INTERIM DAMAGE ASSESSMENT MECHANISM PENDING
PROMULGATION OF FORMAL REGULATIONS; (B) ESTABLISH A LIQUIDATED DAMAGES
SCHEDULE, SETTING STATUTORY VALUES ON LOST FISH, BIRD, AND MAMMAL
SPECIES, TO BE USED IN THE ABSENCE OF A SCIENTIFICALLY ESTABLISHED
REGULATORY SCHEME; AND (C) REQUIRE DAMAGE ASSESSMENTS, ESPECIA-LY WHERE
ECOLOGICAL IMPACTS ARE GREAT, TO BE BASED ON THE EXTENT OF THE NATURAL
RESOURCE DAMAGE RATHER THAN UPON THE SIZE OF EITHER THE RESPONSIBLE
RELEASE OR THE AREA AFFECTED.
THE APPROACH OF THE PRESENT BILL IS TO DEFER DAMAGE ASSESSMENTS FOR
NATURAL RESOURCE INJURY FOR AT LEAST TWO YEARS, UNTIL FORMAL DAMAGE
ASSESSMENT REGULATIONS CAN BE PROMULGATED BY THE PRESIDENT. WE VIEW
THIS DELAY AS NEITHER NECESSARY NOR DESIRABLE. IT IS UNNECESSARY,
BECAUSE A NUMBER OF STATES HAVE WELL-DESIGNED DAMAGE ASSESSMENT SCHEMES
AVAILABLE TO THEM, AND IN WIDESPREAD USE, UNDER THEIR RESPECTIVE
STATUTORY AND COMMON LAW.
STATEMENT ON THE NEED FOR COMPENSATION AND LIABILITY LEGISLATION FOR RELEASES
790907
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 017 OF 21
KAMLET KS
NATIONAL WILDLIFE FEDERATION
U.S. SENATE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS SUBCOMMITTEE ON
ENVIRONMENTAL POLLUTION AND RESOURCE PROTECTION
104727
HEARING
SENATE
IT IS UNDESIRABLE, BECAUSE IF DAMAGE ASSESSMENT SCHEMES EXIST,
NO SENSE TO DEFER THE OPERATION OF SUCH A MECHANISM ANY LONGER THAN
ABSOLUTELY NECESSARY.
ACCORDINGLY, WE PROPOSE THAT THE COMMITTEE CONSIDER ADOPTING A
FURTHER PROVISION WITHIN SECTION 6(E) OF S. 1480, WHICH WOULD ENABLE
STATE OFFICIALS AND TEH PRESIDENT TO TAKE ACTION UNDER SECTION 4(B), IN
THEIR ROLES AS TRUSTEES FOR THE PUBLIC, TO RECOVER DAMAGES FOR INJURY TO
NATURAL RESOURCES -- EVEN WITHIN THE INTERVAL PRIOR TO FORMAL
PROMULGATION OF DAMAGE ASSESSMENT REGULATIONS UNDER SECTION 6(E)(1)(A)
-- BASED ON THE USE OF ANY DAMAGE ASSESSMENT VALUATION APPROACH (OR
COMBINATION OF APPROACHES) AVAILABLE OR IN USE UNDER THE STATUTORY OR
COMMON LAW OF ANY OF THE SEVERAL STATES. IN ESSENCE, THE CONGRESS WOULD
BE ADOPTING FOR FEDERAL LAW PURPOSES, ON AN INTERIM BASIS, THE STATE LAW
APPROACHES (WHERE WELL-DEVELOPED) FOR NATURAL RESOURCE DAMAGE
ASSESSMENT. THIS WOULD ALLOW, FOR EXAMPLE, FEDERAL PROSECUTORS IN
GEORGIA TO TAKE ACTION IN FEDERAL COURT TO RECOVER DAMAGES FOR INJURIES
TO NATURAL RESOURCES IN THAT STATE ON THE BASIS OF VALUATION APPROACHES
FOR FISH ESTABLISHED IN PENNSYLVANIA, FOR WATERFOWL AS ESTABLISHED IN
MENNESOTA, AND FOR OTHER WILDLIFE AS ESTABLISHED IN CALIFORNIA (THESE
ARE HYPOTHETICAL EXAMPLES).
AS SOON AS FINAL FEDERAL DAMAGE ASSESSMENT REGULATIONS WERE ADOPTED,
PURSUANT TO SECTION 6(E)(1)(A) -- HOPEFULLY WITHIN 2 YEARS -- SUCH
REGULATIONS WOULD THEREAFTER SUPERSEDE AND REPLACE ANY STATE APPROACHES
UTILIZED DURING THE INTERIM PERIOD.
STATEMENT ON THE NEED FOR COMPENSATION AND LIABILITY LEGISLATION FOR RELEASES
790907
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 018 OF 21
KAMLET KS
NATIONAL WILDLIFE FEDERATION
U.S. SENATE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS SUBCOMMITTEE ON
ENVIRONMENTAL POLLUTION AND RESOURCE PROTECTION
104728
HEARING
SENATE
CERTAIN NATURAL RESOURCE LOSSES, PARTICULARLY FOR LIVING RESOURCES,
WILL BE EXTREMELY DIFFICULT TO QUANTIFY IN DAMAGE ASSESSMENT REGULATIONS
(PLACING ECONOMIC VALUES ON THEM WILL BE ESPECIALLY DIFFICULT). THERE
WILL BE A STRONG TEMPTATION ON THE PART OF THE REGULATION WRITERS TO
ADOPT SIMPLE AND LIMITED DAMAGE ASSESSMENT APPROACHES, AT LEAST
INITIALLY -- APPROACHES WHICH FAIL TO FULLY COMPENSATE FOR HABITAT AND
LIVING RESOURCE FROM TWO STANDPOINTS. ONE, IT WOULD REDUCE THE
DETERRENT EFFECT OF THIS LEGISLATION ON RISKY INDUSTRIAL PRACTICES WHICH
LACK ADEQUATE SAFEGUARDS. AND TWO, IT WOULD LIMITE THE AVAILABILITY OF
FUND RESOURCES TO FULLY RESTORE INJURED NATURAL RESOURCES.
WE BELIEVE THIS TEMPTATION CAN BE LESSENED (AS WELL AS THE
CONSEQUENCES OF YIELDING TO IT) BY THE SIMPLE (IN PRINCIPLE) EXPEDIENT
OF STATUTORILY ESTABLISHING A LIQUIDATED DAMAGES FEE SCHEDULE FRAMEWORK
TO BE USED IN MAKING DAMAGE ASSESSMENTS WHERE MORE REFINED DAMAGE
ASSESSMENT REGULATIONS ARE LACKING OR ARE INCOMPLETE. THE FUNCTION OF
LIQUIDATED DAMAGE PROVISIONS IS TO ACHIEVE DETERRENCE, PLAIN AND SIMPLE.
A PRECISE SCIENTIFIC CORRELATION BETWEEN FEES ASSESSED AND THE VALUE OF
THE RESOURCES IMPACTED NEED NOT BE ESTABLISHED.
A FEE SCHEDULE ESTABLISHED ON THIS BASIS MIGHT LOOK LIKE THE
FOLLOWING, FOR EXAMPLE:
STATEMENT ON THE NEED FOR COMPENSATION AND LIABILITY LEGISLATION FOR RELEASES
790907
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 019 OF 21
KAMLET KS
NATIONAL WILDLIFE FEDERATION
U.S. SENATE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS SUBCOMMITTEE ON
ENVIRONMENTAL POLLUTION AND RESOURCE PROTECTION
104729
HEARING
SENATE
SPECIES IMPACTED ASSESSMENT PER AFFECTED INDIVIDUAL
FISH . . . . . . . . . . . . . . . . . .$1
BIRD . . . . . . . . . . . . . . . . . . 10
MAMMAL. . . . . . . . . . . . . . . . . 100
ENDANGERED BIRD OR MAMMAL SPECIES . .10,000
ONE VIRTUE OF THIS APPROACH IS THE LIKELIHOOD THAT IT WOULD GENERATE
INDUSTRY PRESSURE ON THE REGULATION-WRITERS TO COME UP WITH A MORE
PRECISE, COMPREHENSIVE DAMAGE ASSESSMENT SCHEME (WHICH IN MANY CASES
WOULD GIVE RISE TO LESS OVERALL LIABILITY THAN UNDER A LIQUIDATED
DAMAGES APPROACH). IN THE ABSENCE OFA LIQUIDATED DAMAGES APPROACH, ON
THE OTHER HAND, INDUSTRY CAN BE EXPECTED TO COUNSEL DELAY AND RESTRICTED
ACTION.
SECTION 6(E)(1)(B) OF THE COMMITTEE BILL, AS CURRENTLY WORDED, IS
UNCLEAR AND PERHAPS ILL-ADVISED. ALTHOUGH CLAUSES (I) AND (II) OF THIS
PROVISION ARE SET FORTH AS ALTERNATIVE APPROACHES, THE IMPLICATION IS
GIVEN THAT, FOR LARGE SPILLS, MORE SPECIFIC PROTOCOLS ARE TO BE
ESTABLISHED FOR MAKING ASSESSMENTS BASED ON THE TYPE AND EXTENT OF SHORT
AND LONG-TERM NATURAL RESOURCE IMPAIRMENTS.
IN OUR VIEW, THE ONLY RATIONAL APPROACH -- AT LEAST WHERE SIGNIFICANT
ECOLOGICAL DAMAGE HAS OCCURRED -- IS TO BASE THE DAMAGE ASSESSMENT ON
THE DEGREE OF HARM DONE (CONSIDERING REPLACEMENT VALUE, USE VALUE, AND
THE ABILITY OF THE ECOSYSTEM TO RECOVER).
STATEMENT ON THE NEED FOR COMPENSATION AND LIABILITY LEGISLATION FOR RELEASES
790907
HAZARDOUS AND TOXIC WASTE DISPOSAL
PART 020 OF 21
KAMLET KS
NATIONAL WILDLIFE FEDERATION
U.S. SENATE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS SUBCOMMITTEE ON
ENVIRONMENTAL POLLUTION AND RESOURCE PROTECTION
104730
HEARING
SENATE
SIMPLIFIED ASSESSMENTS, BASED ON SPILL SIZE AND AFFECTED AREA MAKE
SENSE ONLY WHERE THE EXTENT OF ECOLOGICAL DAMAGE IS LIKELY TO BE SMALL
(OR IS DIFFICULT TO ESTABLISH, BASED ON THE SUBTLETY OF THE IMPACTS OR
THE ELUSIVENESS OF THE IMPACTED SPECIES).
WE HOPE THE COMMITTEE WILL RECONSIDER THE WORDING OF SECTION
6(E)(1)(B) IN THIS LIGHT.
IN CONCLUSION, WE GREATLY APPRECIATE THIS OPPORTUNITY TO PRESENT OU
VIEWS ON THIS IMPORTANT LEGISLATION AND COMMEND THE TWO SUBCOMMITTEES
AND THEIR CHAIRMAN FOR THEIR GOOD WORK IN DEVELOPING SUPERFUND
LEGISLATION IN WHICH WE CAN ALL TAKE PRIDE AND COMFORT.
TESTIMONY
790907
SWAN D VICE PRESIDENT, ENVIRONMENTAL AFFAIRS
KENNECOTT COPPER CORPORATION
AMERICAN MINING CONGRESS
U.S. SENATE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS SUBCOMMITTEE ON
ENVIRONMENTAL POLLUTION AND RESOURCE PROTECTION
104732
HEARING
SENATE
MR. CHAIRMAN, MEMBERS OF THE SUBCOMMITTEES ON ENVIRONMENTAL POLLUTION
AND RESOURCE PROTECTION . . . MY NAME IS DAVID SWAN. I AM VICE
PRESIDENT OF ENVIRONMENTAL AFFAIRS FOR KENNECOTT COPPER CORPORATION.
I AM APPEARING TODAY ON BEHALF -F THE AMERICAN MINING CONGRESS, AN
INDUSTRY TRADE ASSOCIATIN OF OVER 500 COMPANIES. THE ASSOCIATION'S
MEMBERSHIP INCLUDES THE PRODUCERS OF MOST OF AMERICA'S METALS, COAL AND
INDUSTRIAL AND AGRICULTURAL MINERALS; THE MANUFACTURERS OF MINING AND
MINERALS PROCESSING MACHINERY AND SUPPLIES; AND THE FINANCIAL
INSTITUTIONS WHICH SERVE THE MINING INDUSTRY.
THE AMERICAN MINING CONGRESS APPRECIATES THE OPPORTUNITY TO COMMENT
ON THE PROPOSALS BEFORE THE SUBCOMMITTEES TO CLEAN UP OIL AND HAZARDOUS
SUBSTANCE SPILLS AND ABANDONED HAZARDOUS WASTE SITES. WE RECOGNIZE AND
APPRECIATE THE GENUINE NEED FOR A PROGRAM TO PROVIDE PROMPT, EFFECTIVE
CLEANUP OF HAZARDOUS WASTES IN THE ENVIRONMENT -- WHETHER THROUGH SPILLS
OR INADEQUATE WASTE DISPOSAL PRACTICES -- AND COMPENSATION FOR THOSE
PERSONS WHO HAVE BEEN INJURED AS A RESULT.
WE ARE PERSUADED, HOWEVER, THAT THE TWO PROPOSALS BEFORE THE
SUBCOMMITTEES DO NOT REPRESENT THE PROPER APPROACH FOR ACCOMPLISHING
THESE OBJECTIVES.
TESTIMONY
790907
SWAN D VICE PRESIDENT, ENVIRONMENTAL AFFAIRS
KENNECOTT COPPER CORPORATION
AMERICAN MINING CONGRESS
U.S. SENATE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS SUBCOMMITTEE ON
ENVIRONMENTAL POLLUTION AND RESOURCE PROTECTION
104733
HEARING
SENATE
THE ADMINISTRATION'S BILL, S. 1341, PROPOSED TO FINANCE THE COST OF
CLEANUP THROUGH FEES ON THE PRODUCERS OF CERTAIN AND RECOVERY ACT. THE
WHOLE THRUST OF RCRA IS TO REDUCE THE PRODUCTION OF HAZARDOUS WASTES --
IT IS AN INCENTIVE TO NEUTRALIZE. THE APPROACH OF PLACING A FEE ON THE
PRODUCTION OF HEAVY METALS AND OIL AND FEEDSTOCK CHEMICALS REPRESENTS
ADMINISTRATIVE SIMPLICITY -- A CONVENIENCE, IF YOU WILL -- AND RESULTS
IN AN INORDINATELY UNEQUAL EFFECT ON THE VARIOUS INDUSTRIES CONCERNED,
PARTICULARLY THE MINING INDUSTRY. IT IS PARTICULARLY IRONIC THAT THE
ADMINISTRATION PROPOSED TO LEVY A TAX OF $2 A TON, NOT TO EXCEED 2
PERCENT OF SALES, ON SULFURIC ACID, A THROW-AWAY OF POLLUTION CONTROL IN
THE PROCESSING OF COPPER.
S. 1480, AS PROPOSED BY MEMBERS OF THE ENVIRONMENT AND PUBLIC WORKS
COMMITTEE, PROPOSED TO FINANCE CLEANUP THROUGH A "SUPER POLLUTION TAX."
THIS LEGISLATION WOULD COVER ALL TOXIC AND HAZARDOUS SUBSTANCES AS
DEFINED IN THE CLEAN AIR, CLEAN WATER, TOXIC SUBSTANCES AND SOLID WASTE
DISPOSAL ACTS. IT IS NOT A TAX APPROPRIATELY ON THE WASTE STREAM
ENTERING THE ENVIRONMENT, BUT ON THE MANUFACTURE AND PRODUCTION OF TOXIC
AND HAZARDOUS SUBSTANCES. THE SUBCOMMITTEES WILL RECALL THAT CONGRESS
HAS CONSIDERED SUCH TAX APPROACHES TO POLLUTION IN THE PAST AND HAS
CONSISTENTLY REJECTED THEM.
THE FOCUS OF CONGRESSIONAL ATTENTION IN CLEANING UP HAZARDOUS WASTES
IN THE ENVIRONMENT HAS CONCENTRATED ON THE OIL AND CHEMICAL INDUSTRIES.
THIS IS UNDERSTANDABLE IN LIGHT OF THE DEVASTATING EVENTS REPORTED IN
THE MEDIA.
TESTIMONY
790907
SWAN D VICE PRESIDENT, ENVIRONMENTAL AFFAIRS
KENNECOTT COPPER CORPORATION
AMERICAN MINING CONGRESS
U.S. SENATE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS SUBCOMMITTEE ON
ENVIRONMENTAL POLLUTION AND RESOURCE PROTECTION
104734
HEARING
SENATE
YET, FEW HAVE REALIZED THE IMPACT THIS LEGISLATION WOULD HAVE ON THE
MINING INDUSTRY.
WASTES ASSOCIATED WITH THE MINING AND EXTRACTION OF MINERALS ARE
CHARACTERIZED BY BOTH VOLUME AND LOW TOXICITY. CONGRESS, IN ENACTING
THE RESOURCE CONSERVATION AND RECOVERY ACT, RECOGNIZED THIS UNIQUENESS
OF MINING WASTES AND PROVIDED FOR A STUDY OF THESE WASTES BEFORE
INITIATING A PROGRAM OF REGULATION.
I AM MOST FAMILIAR WITH THE WASTES ASSOCIATED WITH THE MINING AND
PROCESSING OF COPPER. IT IS CORRECT, I BELIEVE, THAT THERE VALUE IS
ONE-HALF OF ONE PERCENT -- APPROXIMATELY 99.5 PERCENT OF THE CONTAINED
ORE IS WASTE. THIS WOULD COMPARE TO ABOUT A 50 PERCENT METAL VALUE FOR
IRON ORE, FOR EXAMPLE. ONLY 2 1/2 TO 3 1/2 POUNDS OF COPPER ARE DERIVED
FROM A TONOF ORE. THIS IA A TREMENDOUS VOLUME WHEN CONSIDERING THAT
KENNECOTT COPPER CORPORATION PRODUCES 400,000 TONS OF COPPER ANNUALLY.
AND THIS 99.5 PERCENT WASTE IS LITTLE MORE THAN DIRT AND ROCK -- HARDLY
HAZARDOUS.
IN THE PROCESSING O COPPER, WASTES ARE LOW INTOXICITY. THE TAILINGS
POND AT KENNECOTT'S BINGHAM, UTAL, OPERATION EXTENDS OVER 6,000 ACRES.
IF WE EXCLUDE WATER, 98 PERCENT OF THE TAILINGS ARE INERT SOLIDS OR ROCK
(CLAY, SAND, SILICATE). TWO PERCENT ARE PYRITES. AS SUCH, THE WASTES
INCIDENT TO MINING OPERATIONS ARE VASTLY DIFFERENT FROM CONCENTRATED
CHEMICAL RESIDUES OR EVEN MUNICIPAL WASTE DISPOSAL SITES. WE CONSIDER
THIS DISTINCTION OF WASTES OF CRITICAL IMPORTANCE TO THE SUBCOMMITTEES'
DISCUSSIONS.
TESTIMONY
790907
SWAN D VICE PRESIDENT, ENVIRONMENTAL AFFAIRS
KENNECOTT COPPER CORPORATION
AMERICAN MINING CONGRESS
U.S. SENATE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS SUBCOMMITTEE ON
ENVIRONMENTAL POLLUTION AND RESOURCE PROTECTION
104735
HEARING
SENATE
WE ARE PERSUADED THAT THE CONGRESS NEED LEGISLATE IN ONLY TWO AREAS:
TO PROVIDE FOR THE CLEANUP OF ABANDONED AND ORPHANED WASTE DISPOSAL
SITES AND TO PROVIDE SOME MECHANISM FOR FUTURE CLEANUP COSTS AND
LIABILITIES ARISING AFTER THE RESPONSIBILITY OF AN OWNER OR OPERATOR OF
A HAZARDOUS WASTE DISPOSAL SITE HAS ENDED UNDER RCRA.
ALL OF US HERE SHARE A CONCERN FOR THE IMMEDIATE CLEANUP AND
STABILIZATION OF THE IMMINENT HAZARDS TO PUBLIC HEALTH WHICH HAVE
RESULTED FROM PAST INADEQUATE WASTE DISPOSAL PRACTICES. AS A POINT OF
CLARIFICATION WE ARE ADDRESSING ONLY THOSE SITUATIONS WHEN THE OWNERS OR
OPERATORS CANNOT BE IDENTIFIED OR LACK THE NECESSARY FINANCIAL RESOURCES
FOR CLEANUP. WHERE THE OWNERS OR OPERATORS CAN BE IDENTIFIED, ADEQUATE
AND APPROPRIATE REMEDIES EXIST FOR PRESSING CLAIMS AGAINST THESE
COMPANIES. APPROPRIATELY, WE SHOULD LEAVE THE DETERMINATION OF FAULT OR
BLAME TO THE COURTS. MINING CONGRESS URGES THAT THE COST OF CLEANUP OF
THESE ABANDONED AND ORPHANED SITES BE FINANCED BY PUBLIC FUNDS, PERHAPS
IN THE FASHION AS A RED CROSS DISASTER RELIEF FUND. THIS IS AN ACCEPTED
PRACTICE IN THE TREATMENT OF OTHER BROAD PUBLIC HEALTH PROBLEMS. THE
PROBLEM IS TWO-FOLD: FIRST, THE IMMEDIATE CLEANUP OF ANY HAZARDS
AFFECTING, OR THREATENING TO AFFE-T, PUBLIC HEALTH, AND SECOND, TO
PROVIDE JUST AND REASONABLE COMPENSATION FOR THOSE INDIVIDUALS WHO HAVE
SUFFERED AS A RESULT OF PAST INADEQUATE PRACTICES. TO TAX EXISTING
COMPANIES, WHO ARE IN NO WAY ASSOCIATED WITH THE CREATION OF PAST
HAZARDS, IS, IN OUR VIEW, DISCRIMINATORY AND POSSIBLY UNCONSTITUTIONAL.
TESTIMONY
790907
SWAN D VICE PRESIDENT, ENVIRONMENTAL AFFAIRS
KENNECOTT COPPER CORPORATION
AMERICAN MINING CONGRESS
U.S. SENATE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS SUBCOMMITTEE ON
ENVIRONMENTAL POLLUTION AND RESOURCE PROTECTION
104736
HEARING
SENATE
THE PROGRAM ESTABLISHED THROUGH THE RESOURCE CONSERVATION AND
RECOVERY ACT WILL, WE BELIEVE, HELP PREVENT THE RECURRENCE OF THESE
HAZARDS IN THE FUTURE. HOWEVER, THE AMERICAN MINING CONGRESS SUPPORTS
THE CREATION OF A FEDERALLY-ADMINISTERED TRUST FUND TO SERVE AS A TYPE
OF CATASTROPHIC INSURANCE POLICY AGAINST FUTURE CLEANUP COSTS AND
LIABILITIES ARISING AFTER THE RESPONSIBILITY OF AN OWNER OR OPERATOR OF
HAZARDOUS WASTE DISPOSAL SITES HAS ENDED UNDER RCRA. WE SUGGEST, THAT
IN ADDITION TO RESPONSIBILITY FOR FUTURE CLAIMS, THE FUND COULD
APPROPRIATELY BE USED TO LIMIT THE LIABILITY OF AN OWNER OR OPERATOR
DURING THE PERIOD OF RESPONSIBILITY.
WE URGE, HOWEVER, THAT ANY FEES ASSESSED FOR THE TRUST FUND, NOT BE
UNIFORM, BUT BASED SPECIFICALLY ON THE AMOUNT OF HAZARDOUS WASTES
RECEIVED FOR DISPOSAL, THE TOXICITY OF THE WASTE, THE POTENTIAL FOR
DAMAGES, INCLUDING THE LIKELIHOOD OF EXPOSURE, AND THE COST OF
TECHNOLOGY NECESSARY TO TREAT, STORE OR DISPOSE OF A PARTICULAR
HAZARDOUS MATERIAL.
WE APPRECIATE THAT THE SUBCOMMITTEES ARE EXAMINING THE CLEANUP OF OIL
AND HAZARDOUS SUBSTANCE SPILLS, IN ADDITION TO WASTE DISPOSAL SITES.
THE AMERICAN MINING CONGRESS AGREES THAT SUCH FUNDS ARE NECESSARY WHEN
THE PARTY RESPONSIBLE CANNOT READILY BE IDENTIFIED OR LACKS ADEQUATE
FINANCIAL RESOURCES. IN THE ACT. WHAT IS LACKING IS OPERATING
EXPERIENCE. UNTIL SUCH EXPERIENCE HAS BEEN OBTAINED, WE SUGGEST THERE
ARE ONLY TWO CHANGES THE SUBCOMMITTEES MAY WISH TO CONSIDER:
CONSOLIDATING THE TWO FUNDS AND REMOVING THE REQUIREMENT THAT DISCHARGES
MUST REACH NAVIGABLE WATERS.
TESTIMONY
790907
SWAN D VICE PRESIDENT, ENVIRONMENTAL AFFAIRS
KENNECOTT COPPER CORPORATION
AMERICAN MINING CONGRESS
U.S. SENATE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS SUBCOMMITTEE ON
ENVIRONMENTAL POLLUTION AND RESOURCE PROTECTION
104737
HEARING
SENATE
SIMILAR FUNDING FOR THE CLEANUP OF OIL SPILLS IS PROVIDED IN H.R. 85,
WHICH HAS BEEN APPROVED BY THE HOUSE OF REPRESENTATIVES AND IS AWAITING
ACTION IN THE SENATE. THE SEPARABILITY OF THESE TWO FUNDS IS DESIRABLE,
CONSIDERING THE VAST DIFFERENCES IN THE VOLUMES INVOLVED AND CLEANUP
METHODS.
THE AMERICAN MINING CONGRESS REALIZES THE DIFFICULTIES INVOLVED IN
LEGISLATING AN EQUITABLE PROGRAM WHICH WILL ACCOMPLISH THE OBJECTIVES OF
HAZARDOUS WASTE CLEANUP AND REASONABLE COMPENSATION FOR THOSE WHO HAVE
SUFFERED. WE HAVE APPRECIATED THE OPPORTUNITY TO PRESENT OUR CONCERNS.
I WILL BE HAPPY TO ANSWER ANY QUESTIONS MEMBERS OF THE SUBCOMMITTEES MAY
HAVE.
TESTIMONY ON HAZARDOUS SUBSTANCES LIABILITY FUNDS
HANNEMAN R L DIRECTOR, GOVERNMENT AND PUBLIC AFFAIRS
NATIONAL SOLID WASTES MANAGEMENT ASSOCIATION
U.S. SENATE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS SUBCOMMITTEE ON
RESOURCE PROTECTION AND SUBCOMMITTEE ON ENVIRONMENTAL POLLUTION
104738
HEARING
SENATE
TITLE PAGE OMMITTED
TESTIMONY ON HAZARDOUS SUBSTANCES LIABILITY FUNDS
HANNEMAN R L DIRECTOR, GOVERNMENT AND PUBLIC AFFAIRS
NATIONAL SOLID WASTES MANAGEMENT ASSOCIATION
U.S. SENATE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS SUBCOMMITTEE ON
RESOURCE PROTECTION AND SUBCOMMITTEE ON ENVIRONMENTAL POLLUTION
104739
HEARING
SENATE
MR. CHAIRMAN AND MEMBERS OF THE COMMITTEE, MY NAME IS RICHARD L.
HANNERMAN AND I AM DIRECTOR OF GOVERNMENT AND PUBLIC AFFAIRS FOR THE
NATIONAL SOLID WASTES MANAGEMENT ASSOCIATION, THE PROFESSIONAL AND TRADE
ASSOCIATION FOR THE WASTE MANAGEMENT INDUSTRY. OUR PARTICULAR INTERESTS
IN THE MATTERS BEFORE THE COMMITTEE TODAY ARE THOSE OF THE PRIVATE
OFF-SITE HAZARDOUS WASTE DISPOSAL FACILITY OPERATORS WHO WILL BE
OPERATING FACILITIES WHICH WILL BE LICENSED UNDER SUBTITLE C OF THE
RESOURCE CONSERVATION AND RECOVERY ACT. WE ALSO REPRESENT MORE THAN
2,000 COMPANIES ENGAGED IN THE COLLECTION, PROCESSING AND DISPOSAL OF
SOLID WASTES INCLUDING FIRMS ENGAGED IN RESOURCE RECOVERY.
YOU MAY RECALL THAT AT THE COMMITTEE'S JULY 20 HEARINGS, JEFFREY
R.DIVER OF ONE OF OUR MEMBER FIRMS OUTLINED THE NEED FOR THE COMMITTEE
TO ADDRESS LIABILITY QUESTIONS ARISING FROM HAZARDOUS WASTE DISPOSAL
PRACTICES IN A COMPREHENSIVE MANNER, NOT ONLY PROVIDING SOME MEASURE OF
ENCOURAGEMENT FOR THE CLEAN UP OF PAST MIS-MANAGEMENT, BUT PROVIDING A
FRAMEWORK FOR MANAGING LIABILITY QUESTIONS ARISING FROM THE FACILITIES
WHICH WILL BEGIN TO BE LICENSED UNDER RCRA IN MID-1980.
WE URGE THE COMMITTEE TO APPEND S. 1325, THE HAZARDOUS WASTES
POST-CLOSURE LIABILITY ACT, TO THE LEGISLATION THE COMMITTEE INTENDS TO
REPORT PROVIDING FOR A FUND TO ADDRESS PROBLEMS ASSOCIATED WITH
DISCHARGES AND DISPOSAL OF TOXIC SUBSTANCES. LEGISLATION CAN BE
COMBINED WITH S. 1325. I WILL PROVIDE THE STAFF WITH THE DETAILED WORD
CHANGES WHICH WILL EMBODY THIS MARRIAGE AND CONFINE MYSELF TODAY TO
EXPLAINING THE LOGIC AND THE PARTICULARS OF THOSE MODIFICATIONS. SHOULD
THE COMMITTEE SELECT A DIFFERENT MARK-UP VEHICLE, WE WOULD BE MOST HAPPY
TO WORK WITH THE STAFF IN PREPARING THE TECHNICAL LANGUAGE TO COMBEINE
THE CONCERNS OF THESE TWO BILLS.
TESTIMONY ON HAZARDOUS SUBSTANCES LIABILITY FUNDS
HANNEMAN R L DIRECTOR, GOVERNMENT AND PUBLIC AFFAIRS
NATIONAL SOLID WASTES MANAGEMENT ASSOCIATION
U.S. SENATE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS SUBCOMMITTEE ON
RESOURCE PROTECTION AND SUBCOMMITTEE ON ENVIRONMENTAL POLLUTION
104740
HEARING
SENATE
BOTH S. 1480 AND S. 1325 ADDRESS THE QUESTION OF HOW SOCIETY WILL PAY
FOR DISCHARGES OF TOXIC MATERIALS INTO THE ENVIRONMENT. S. 1480 IS MUCH
BROADER, PROVIDING A RE-WRITE OF THE LAW REGARDING THE BASIS OF
LIABILITY AS WELL AS PROVIDING A FUNDING MECHANISM TO ASSURE THAT MONEY
WILL BE AVAILABLE TO CLEAN UP PROBLEM FACILITIES AND PAY DAMAGES WHICH
THEY MAY CAUSE. S. 1325 IS LIMITED IN COVERAGE ONLY TO THOSE FACILITIES
WHICH WILL BE PERMITTED UNDER THE NEW REGULATORY PROGRAM UNDER SUBTITLE
C OF RCRA AND FURTHER LIMITED TO PROVIDING A MECHANISM TO ASSURE THAT
FUNDS WILL BE AVAILABLE TO PAY FOR CLEAN UP AND FOR PERSONAL OR PROPERTY
DAMAGES. IT DOES NOT ALTER IN ANY WAY STATUTORY OR COMMON LAW STANDARDS
OF LIABILITY.
THE BASIC DIFFERENCE BETWEEN THE TWO BILLS LIES IN THE DIFFERENCES
BETWEEN THE FUNDS WHICH THEY CREATE. THE FUND CREATED BY S. 1480 WOULD
COVER THE COSTS OF HAZARDOUS SUBSTANCE INCIDENTS WHERE THOSE PARTIES
RESPONSIBLE CANNOT BE FOUND OR DO NOT HAVE NECESSARY FUNDS. IT WOULD BE
USED PRINCIPALLY TO CORRECT PAST PROBLEMS, MANY OF WHICH WE ALREADY KNOW
AND WHICH WE ARE LED TO UNDERSTAND WILL REQUIRE A SUBSTANTIAL OUTLAY FOR
CORRECTION. THE FUND SHOULD HAVE LITTLE APPLICATION IN THE FUTURE IF
THE BILL'S FINANCIAL RESPONSIBILITY REQUIREMENTS EFFECTIVELY ASSURE THAT
ALL HAZARDOUS SUBSTANCES HANDLERS HAVE ASSETS AVAILABLE TO PAY DAMAGES.
THE FUND CREATED BY S. 1325, ON THE OTHER HAND WOULD GIVE RCRA-PERMITTED
OPERATORS ASSURANCE OF ADEQUATE FUNDS IN THE EXPECTEDLY INFREQUENT AND
UNLIKELY EVENT THAT RCRA-PERMITTED FACILITY CAUSES A PROBLEM AND INCURS
AS THE MEANS TO AGGREGATE THE RELATIVELY LARGE SUMS NECESSARY TO CORRECT
PAST PROBLEMS. ITS PURPOSE IS THAT OF AN INSURANCE POLICY WHERE THERE
IS A LOW LIKELIHOOD OF PAYOUTS.
TESTIMONY ON HAZARDOUS SUBSTANCES LIABILITY FUNDS
HANNEMAN R L DIRECTOR, GOVERNMENT AND PUBLIC AFFAIRS
NATIONAL SOLID WASTES MANAGEMENT ASSOCIATION
U.S. SENATE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS SUBCOMMITTEE ON
RESOURCE PROTECTION AND SUBCOMMITTEE ON ENVIRONMENTAL POLLUTION
104741
HEARING
SENATE
YOU MAY ASK: WHY SHOULD RCRA-PERMITTED FACILITIES BE TREATED ANY
DIFFERENTLY THAN ANY OTHERS? IT'S A GOOD QUESTION, AND THERE IS A GOOD
ANSWER: BECAUSE WITHOUT THE FINANCIAL ASSURANCES PROVIDED BY THE FUND
TO HOST COMMUNITIES, AND WITHOUT THE LIABILITY MANAGING DEVICE OF THE
FUND FOR THE FACILITY OPERATOR, THE PERCEIVED RISKS ARE JUST TOO GREAT
FOR THOSE DIRECTLY INVOLVED -- THOSE OPERATING AND LIVING NEAR THE
FACILITIES. IT WILL BE DIFFICULT TO FIND LOCATIONS FOR NEEDED NEW
FACILITIES.
THE SUCCESS OF THIS NATION'S HAZARDOUS WASTE MANAGEMENT PROGRAM
CANNOT BE ACHIEVED SOLELY BY DRAFTING INTELLIGENT REGULATIONS NOR IN
DEVISING EFFECTIVE ENFORCEMENT SYSTEMS, THOUGH BOTH ARE, OF COURSE,
HIGHLY ESSENTIAL. THE SUCCESS OF THE PROGRAM IS DEPENDENT ON PROVDING
SUFFICIENT CAPACITY IN PROPERLY DESIGNED AND OPERATED FACILITIES TO
ACCOMODATE THE LARGE AND GROWING VOLUMES OF WASTES WHICH REQUIRE THIS
SPECIAL HANDLING.
SUCCESS DEPENDS ON CONVINCING LOCAL COMMUNITIES THAT IT IS SAFE FOR
SUCH FACILITIES HANDLING POTENTIALLY HAZARDOUS MATERIALS TO BE LOCATED
WITHIN THEIR BOUNDARIES AND THAT THE ONLY ALTERNATIVE IS POOR DISPOSAL
PRACTICES WHICH WILL PLAGUE EVERY COMMUNITY WITH ENVIRONMENTAL AND
PUBLIC HEALTH PROBLEMS. CREATION OF A FUND TO PROVIDE SUFFICIENT MONIES
TO CLEAN UP AND RESTORE A FACILITY AND TO PAY ANY DAMAGES SUSTAINED BY
CITIZENS EITHER TO THEIR PERSONS OR THEIR PROPERTY, APPEARS TO BE A
STRONG INCENTIVE FOR COMMUNITIES TO ACCEPT SUCH FACILITIES, THUS HELPING
TO ALLEVIATE THE PROBLEM OF PROVIDING CAPACITY SUFFICIENT TO OUR NEEDS.
THE FUND DEVICE ALSO PROVIDES AN OTHERWISE UNAVAILABLE MECHANISM FOR
THE OPERATOR OF SUCH FACILITIES TO MANAGE THE LIABILITIES
RESPONSIBILITY. COMPANIES UNABLE TO MEET THE FINANCIAL REQUIREMENTS OF
DOING THE JOB RIGHT AND STANDING BEHIND THEIR WORK HAVE NO PLACE IN THE
HAZARDOUS WASTE MANAGEMENT INDUSTRY.
TESTIMONY ON HAZARDOUS SUBSTANCES LIABILITY FUNDS
HANNEMAN R L DIRECTOR, GOVERNMENT AND PUBLIC AFFAIRS
NATIONAL SOLID WASTES MANAGEMENT ASSOCIATION
U.S. SENATE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS SUBCOMMITTEE ON
RESOURCE PROTECTION AND SUBCOMMITTEE ON ENVIRONMENTAL POLLUTION
104742
HEARING
SENATE
ON THE OTHER HAND, COMPANIES WHO STAND READY TO COMMIT THE TENS OF
MILLIONS OF DOLLARS NECESSARY FOR THE PROPER MANAGEMENT OF HAZARDOUS
WASTES, AS CONGRESS INTENDED BY PASSING RCRA, SHOULD HAVE AVAILABLE SOME
MEANS TO MANAGE THEIR POTENTIAL LIABILITIES. NONE EXISTS TODAY.
COMMERCIAL INSURANCE FOR NON-SUDDEN, NON-ACCIDENTAL INCIDENTS IS
UNAVAILABLE EXCEPT ON A CLAIMS-MADE, CANCELABLE BASIS. THIS, CLEARLY,
PROVIDES NO LONG-RANGE PROTECTION EITHER TO THE COMPANY OR TO THE HOST
COMMUNITY. WE HAVE CONSULTED WITH THE INSURANCE INDUSTRY. EPA HAS
CONSULTED WITH TEH INSURANCE INDUSTRY. THE ANSWER IS THE SAME: THIS
TYPE OF PERPETUAL COVERAGE IS UNAVAILABLE.
THE FUND WHICH WOULD BE CREATED UNDER S. 1325 WOULD ACCOMPLISH THE
TWIN OBJECTIVES OF PROVIDING AN INCENTIVE TO COMMUNITIES TO ACCEPT
PERMITTED FACILITIES WHICH PROPERLY MANAGE HAZARDOUS WASTES AND A
MECHANISM FOR COMPANIES TO INSURE THEMSELVES FOR THE POTENTIAL
LIABILITIES OF THESE SITES, PROVIDED THEY OPERATE THEM IN STRICT
CONFORMANCE WITH THE TERMS AND CONDITIONS OF THEIR RCRA PERMITS.
LET US NOW TURN TO HOW THESE BILLS MIGHT BE MODIFIED TO MAKE THEM
MORE CONSISTENT AND EFFECTIVE POLICY INSTRUMENTS.
BASICALLY, WE SUGGEST THAT THE PRESENT BILL S. 1480 BECOME TITLE I OF
THE BILL AND S. 1325 BE ADDED AS TITLE II. AS I SAID, WE WILL PROVIDE
SPECIFIC LANGUAGE TO THE STAFF. THUS, TITLE I WOULD DEAL WITH QUESTIONS
OF LIABILITY AND CAUSATION AND CREATE A FUND TO PAY COSTS OF CLEAN UP
AND PERSONAL AND PROPERTY DAMAGES. THE TITLE II FUND WOULD BE SEPARATE.
IT WOULD PROVIDE A MEANS WHEREBY OPERATORS OF RCRA-PERMITTED FACILITIES
COULD INSURE THEMSELVES AND AGGREGATE THE FUNDS WHICH THEY NEED SHOULD
EVEN THESE TIGHTLY-REGULATED FACILITIES DEVELOP PROBLEMS.
THERE ARE, HOWEVER, SOME SPECIFIC IMPROVEMENTS WHICH WE WOULD
RE-WRITES THE STANDARDS OF EVERY POLLUTION CONTROL ACT IN THE FEDERAL
STATUTES.
TESTIMONY ON HAZARDOUS SUBSTANCES LIABILITY FUNDS
HANNEMAN R L DIRECTOR, GOVERNMENT AND PUBLIC AFFAIRS
NATIONAL SOLID WASTES MANAGEMENT ASSOCIATION
U.S. SENATE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS SUBCOMMITTEE ON
RESOURCE PROTECTION AND SUBCOMMITTEE ON ENVIRONMENTAL POLLUTION
104743
HEARING
SENATE
THE BILL PROHIBITS "THE RELEASE OR DISPOSAL OF ANY HAZARDOUS
SUBSTANCE, INCLUDING ANY RELEASE INTO OR UPON GROUNDWATER, AIR, LAND . .
." ETC. YOU WILL RECOGNIZE THAT THIS ESTABLISHES AN ABSOLUTE
PROHIBITION -- A "ZERO DISCHARGE" IF YOU WILL. IT DOES NOT AUTHORIZE
THE EPA ADMINISTRATOR TO SET ALLOWABLE LEVELS OF SAFE DISCHARGES OR
ABIDE BY STANDARDS ELSEWHERE ESTABLISHED BY CONGRESS AS IN THE CLEAN AIR
ACT, THE CLEAN WASTE ACT, RCRA AND ELSEWHERE. IT APPEARS THAT IF THIS
STATUTE WERE TO BE ENACTED, THEREBY PROHIBITING THE "DISPOSAL OF ANY
HAZARDOUS SUBSTANCE . . . INTO . . . LAND" THAT WE HAVE ALL WASTED A
GREAT DEAL OF TIME TRYING TO DEVISE STANDARDS FOR SECURE LAND BURIAL OF
HAZARDOUS WASTES BECAUSE ALL SUCH LAND DISPOSAL WOULD BE ABSOLUTELY
PROHIBITED. EXISTING STATUTES ARE FULLY SUFFICIENT TO DESCRIBE
LIABILITIES UNDER THE LAW. SECTION 3(A)(2) SHOULD BE DELETED AND
SECTION 3(A)(3) RENUMBERED AS 3(A)(2). THAT SECTION SHOULD THEN BE
AMENDED IN LINE 8 OF PAGE 9 SUBSTITUTING "FEDERAL LAW" FOR THE PHRASE
"PARAGRAPH (2) OF THIS SUBSECTION."
SECOND, S. 1480 SHOULD BE AMENDED TO INCLUDE COVERAGE OF THOSE
FACILITIES WHICH MAY SECURE "INTERIM" STATUS UNDER RCRA BUT WHICH NEVER
QUALIFY FOR A FINAL RCRA PERMIT. SECTION 3(C) ON PAGE 11, LINE 22,
SUGGESTS THAT OPERATORS OF "INTERIM" STATUS FACILITIES ARE NOT COVERED
UNDER S. 1480. SOME FACILITIES THAT RECEIVE "INTERIM" STATUS WILL NOT
RECEIVE RCRA PERMITS. THE CAPACITY OF SOME WILL BE REACHED DURING THE
"INTERIM" PERIOD. OTHERS AWARDED "INTERIM" STATUS MAY NOT QUALIFY FOR
RCRA PERMITS. THE FUND CREATED BY S. 1325 COVERS ONLY FACILITIES WHICH
OBTAIN RCRA PERMITS AND CLOSE IN ACCORDANCE WITH THE STRICT CLOSURE
REQUIREMENTS SPECIFIED BY THE ADMINISTRATOR OF THE U.S. ENVIRONMENTAL
PROTECTION AGENCY.
THIRD, IN THE DISCUSSION OF QUESTIONS OF LIABILITY FOR DAMAGES
AMENDING SECTION 4(A) TO INCLUDE LANGUAGE SPECIFYING THAT "ANY
GENERATOR OR TRANSPORTER OF ANY HAZARDOUS SUBSTANCE WHO KNEW OR
HAD REASON TO KNOW THAT A DISCHARGE, RELEASE, OR DISPOSAL OF SUCH
HAZARDOUS SUBSTANCE TO THE OWNER OR OPERATOR OF THE FACILITY
WHICH WAS THE SOURCE OF A DISCHARGE, RELEASE, OR DISPOSAL SUBJECT
TO LIABILITY UNDER THIS SECTION SHALL BE DEEMED TO BE A PERSON
WHO CAUSED OR CONTRIBUTED TO SUCH DISCHARGE, RELEASE, OR DISPOSAL.
THIS CIRCUMSCRIBES, APPROPRIATELY, THE BROAD LIABILITY OF THOSE
DESCRIBED IN SECTION 4(A) AS "ANY OTHER PERSON WHO CAUSED OR
CONTRIBUTED OR IS CAUSING OR CONTRIBUTING TO SUCH DISCHARGE,
RELEASE, OR DISPOSAL, INCLUDING BUT NOT LIMITED TO PRIOR OWNERS,
LESSEES, AND GENERATORS, TRANSPORTERS, OR DISPOSERS OF SUCH
HAZARDOUS SUBSTANCES . . ." THIS IS VERY IMPORTANT. IF A
TRANSPORTER, FOR EXAMPLE, INNOCENTLY COLLECTS A BARREL HIDDEN BY
A CUSTOMER AMONGST OTHER CONVENTIONAL TRASH, OR, BETTER STILL,
IF THE "SMALL GENERATOR" EXEMPTION PROPOSED BY EPA IS MAINTAINED
IN THE FINAL REGULATIONS AND SUCH GENERATORS PLACE SMALL QUANTITIES
(LESS THAN 100 KILOGRAMS PER MONTH) OF OTHERWISE HAZARDOUS
WASTES OUT WITH THEIR REGULAR REFUSE, THE TRANSPORTER WILL
UNKNOWINGLY DEPOSIT THE LOAD OF TRASH AT A CONVENTIONAL SANITARY
LANDFILL OR A RESOURCE RECEOVERY FACILITY WHICH MAY OR MAY NOT
BE ABLE TO HANDLE THE WASTE PROPERLY. WHILE THE FACILITY OPERATOR
REMAINS LIABLE, IT SEEMS GOSSLY UNFAIR TO SUBJECT THE TRANSPORTER
IN SUCH CIRCUMSTANCES TO LIABILITY -- EVEN IF THE TRANSPORTER IS
THE ONLY PARTY WITH ATTACHABLE ASSETS.
FOURTH, WE RECOGNIZE AND SYMPATHIZE WITH THE INTENT OF SECTION 4(C)
OF S. 1480 TO MAKE IT EASIER FOR INJURED PARTIES TO AVAIL THEMSELVES OF
REMEDIES UNDER THE LAW. WE CERTAINLY WOULD NOT WANT THE
EXTENSIVELY-DEVELOPED TESTS OF THE LAW GOVERNING CAUSATION TO IMPEDE
RECOVERY OF LEGITIMATELY-AGGRIEVED CLAIMANTS FOR INJURIES WHICH THEY MAY
SUFFER. ON THE OTHER HAND, THE COURTS ARE BECOMING EXTREMELY SENSITIVE
TO THIS BURDON ON CLAIMANTS AND THE LAW IS STEADILY EVOLVING THROUGH
JUDICIAL "FINE TUNING" TOWARDS EASIER BURDENS OF PROOF THAT,
NEVERTHELESS RETAIN THE SECTIONS AND RELY, INSTEAD, ON THE CAREFUL
JUDICIAL REMEDIES BEING APPLIED RATHER THAN LEGISLATE IN A BROAD FASHION
AND RISK UPSETTING DELICATE AND ESTABLISHED PRINCIPLES OF LAW.
TESTIMONY ON HAZARDOUS SUBSTANCES LIABILITY FUNDS
HANNEMAN R L DIRECTOR, GOVERNMENT AND PUBLIC AFFAIRS
NATIONAL SOLID WASTES MANAGEMENT ASSOCIATION
U.S. SENATE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS SUBCOMMITTEE ON
RESOURCE PROTECTION AND SUBCOMMITTEE ON ENVIRONMENTAL POLLUTION
104744
HEARING
SENATE
FIFTH, INASMUCH AS S. 1325 PROVIDES FOR LEVELS OF FINANCIAL
RESPONSIBILITY CONSISTENT WITH THOSE PROPOSED BY THE U.S. EPA IN ITS
PROPOSED REGULATIONS, WE WOULD RECOMMEND AHT S. 1480 BE AMENDED TO
EXCLUDE FINANCIAL RESPONSIBILITY REQUIREMENTS FOR RCRA-PERMITTED
FACILITIES AND THAT THESE REQUIREMENTS BE SPECIFIED IN TITLE II, THE
PRESENT S. 1325. THIS CAN BE ACCOMPLISHED BY ADDING THE PHRASE "EXCEPT
A FACILITY LICENSED UNDER SECTION 3005 OF THE SOLID WASTE DISPOSAL ACT
(42 U.S.C. 6901, ET SEQ.)" IMMEDIATELY AFTER THE WORD "FACILITY" ON PAGE
35, LINE 14.
SIXTH, AND FINALLY, THERE IS THE QUESTION OF PRE-EMPTION. BOTH S.
1480 AND S. 1325 PROVIDE A FEDERAL PRE-EMPTION OF THE FORUM IN WHICH
ACTION MAY BE BROUGHT; FEDERAL COURTS ARE SPECIFIED. BOTH S. 1480 AND
S. 1325 SPECIFICALLY DO NOT PRE-EMPT EXISTING OR FUTURE STATE OR LOCAL
LAWS AFFECTING LIABILITY FOR HAZARDOUS SUBSTANCE INCIDENTS, ALTHOUGH S.
1480 GOES BEYOND THAT TO CREATE NEW FEDERAL STANDARDS OF LIABILITY. THE
TWO BILLS, AS PRESENTLY DRAFTED, DIFFER ON PRE-EMPTION OF STATE-LEVEL
FUNDS FOR CLEAN UP AND FOR DAMAGES. WE SUGGEST THAT BOTH BILLS BE
MODIFIED TO PERMIT STATES TO CREATE FUNDS FOR CLEAN UP AND EMERGENCY
RESPONSE AS DESCRIBED IN S. 1480, SECTION 4(A)(1) WHILE PRE-EMPTING AND
RESERVING FOR THE NATIONAL FUND THE RESPONSIBILITY FOR PROVIDING FOR
DAMAGES OR INJURIES AS DESCRIBED IN SECTION 4 (A)(2). THIS COULD BE
ACCOMPLISHED BY ADDING LANGUAGE AT THE END OF SECTION 8 AS FOLLOWS:
"PROVIDED THAT NO PERSON SHALL BE REQUIRED TO CONTRIBUTE TO ANY FUND
WHOSE EXCLUSIVE PURPOSE IS OTHER THAN THAT AUTHORIZED IN SECTION
4(A)(1)." S. 1325 COULD BE AMENDED BY STRIKING SECTION 3(1) AND
REDESIGNATING SECTION 3(2) AS SECTION 3, AMENDING THAT SECTION BY ADDING
AFTER "PERSON" THE WORDS "INCHARGE OR GUARANTOR" AND AT THE CONCLUSION
OF THE
MR. CHAIRMAN, WE HAVE CONDUCTED A VERY CAREFUL REVIEW ALSO OF S. 1325
AND WISH TO SUGGEST SEVERAL TECHNICAL AMENDMENTS TO CLARIFY ITS
PROVISIONS. LET ME REVIEW TEM QUICKLY AND PASS ALONG THE PARTICULARS TO
THE STAFF FOR YOUR CONSIDERATION.
FIRST, THE TERM "CLAIM" IS USED THROUGHOUT THE BILLAND IS DEFINED
DIFFERENTLY FROM THE SAME WORD AS USED IN S. 1480. WE WOULD SUBSTITUTE
THE DEFINITION "ANY JUDGEMENT ENFORCEABLE AT LAW OR A SETTLEMENT
APPROVED BY THE ADMINISTRATOR ARISING OUT OF A HAZARDOUS WASTE INCIDENT"
IN EACH OF THE SEVEN TIMES WHERE THERE IS A VARIANCE IN MEANING FROM THE
S. 1480 DEFINITION.
SECOND, THE SEQUENCY OF CLOSURE PRESCRIBED IN THE BILL NEEDS
CLARIFICATION. WE ENVISION THE SEQUENCE AS FOLLOWS: AT THE TERMINATION
OF THE OPERATING LIFE OF A FACILITY, THE FACILITY OPERATOR CEASES TO
ACCEPT WASTES AND NOTIFIES THE ADMINISTRATOR OF HIS INTENT TO CLOSE THE
FACILITY. HE THEN HAS UP TO THREE YEARS TO COMPLETE HIS CLOSURE
REQUIREMENTS AS SPECIFIED IN HIS PERMIT. HE THEN NOTIFIES THE
ADMINISTRATOR THAT HE CONSIDERS CLOSURE COMPLETE. THE ADMINISTRATOR
THEN HAS AN ADDITIONAL THREE YEARS DURING WHICH TO EXAMINE THE FACILITY
TO DETERMINE TO HIS SATISFACTION WHETHER THE WORK IS COMPLETE AND
SATISFACTORY. THE ADMINISTRATOR THEN GRANTS OR DENIES THE CERTIFICATION
OF PROPER CLOSURE.
THIRD, WE BELIEVE THAT THE FUND SHOULD BE USED TO PAY NOT ONLY
PERSONAL AND PROPERTY DAMAGES BUT CLEAN UP COSTS AS WELL.
FOURTH, THE FEES TO CREATE AND SUSTAIN THE FUND SHOULD BE BASED ON
THE DEGREE OF HAZARD OF THE WASTE STREAM BEING DISPOSED OF IN LINE WITH
THE EXPECTED DEVELOPMENT OF SUCH A CLASSIFICATION SYSTEM BY THE U.S.
EPA.
TESTIMONY ON HAZARDOUS SUBSTANCES LIABILITY FUNDS
HANNEMAN R L DIRECTOR, GOVERNMENT AND PUBLIC AFFAIRS
NATIONAL SOLID WASTES MANAGEMENT ASSOCIATION
U.S. SENATE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS SUBCOMMITTEE ON
RESOURCE PROTECTION AND SUBCOMMITTEE ON ENVIRONMENTAL POLLUTION
104745
HEARING
SENATE
FIFTH, THE FUND SHOULD BE ACCUMULATED DURING THE FIRST FIVE YEARS OF
THE PROGRAM RATHER THAN SPRING FULL-BLOWN INTO BEING DURING THE FIRST
MONTHS FOLLOWING ENACTMENT.
AND, FINALLY, SIXTH, THE ADMINISTRATIVE COSTS TO MANAGE THE FUND
SHOULD BE PAID FROM THE FEES ASSESSED AGAINST DISPOSAL
IN SUMMARY, THE WASTE MANAGEMENT INDUSTRY URGENTLY NEEDS A MECHANISM
TO ALLOW ITSELF TO INSURE AGAINST EVEN THE REMOTE POSSIBILITY OF FUTURE
DAMAGES FROM FACILITIES WHICH WILL BE CONSTRUCTED AND OPERATED UNDER THE
RESOURCE CONSERVATION AND RECOVERY ACT. THE ONLY AVAILABLE AND FEASIBLE
ALTERNATIVE IS TO PROVIDE A NATIONAL FUND CREATED BY FEES LEVIED AGAINST
ALL DISPOSAL SITE OPERATORS AND MANAGED BY THE FEDERAL GOVERNMENT. SUCH
A FUND WOULD ASSURE HOST COMMUNITIES THAT SOCIETY STANDS BEHIND THE
NECESSITY OF THEIR ACCEPTANCE OF HAZARDOUS WASTE FACILITIES AND WILL,
THUS, ENCOURAGE THE SITING OF FACILITIES IN SUFFICIENT NUMBER AND
CAPACITY TO MEET THE GROWING DEMAND FOR MODERN TREATMENT AND DISPOSAL
FACILITIES. WE IN THE WASTE MANAGCMENT INDUSTRY ARE ANXIOUS TO GET ON
WITH THE JOB AND APPRECIATE YOUR CONSIDERATION OF THIS INSTRUMENTALITY
TO HELP BRING THIS ABOUT.
WE DEEPLY APPRECIATE THIS OPPORTUNITY TO SHARE OUR THOUGHTS WITH YOU
AND WOULD BE PLEASED TO TRY TO RESPOND TO ANY QUESTIONS YOU MAY HAVE.
THANK YOU.
REMARKS
HAZARDOUS AND TOXIC WASTE
SENATOR, PA
U.S. SENATE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS
104748
HEARING
SENATE
MR. CHAIRMAN. I AM GRATEFUL FOR THIS OPPORTUNITY TO PRESENT MY VIEWS
ON PROPOSALS TO CREATE A "SUPERFUND" TO FINANCE CLEAN-UP OPERATIONS AND
COMPENSATIONS FOR THOSE VICTIMIZED BY HAZARDOUS WASTE SPILLS. THE
WELL-BEING OF MANY CITIZENS OF PENNSYLVANIA HAS BEEN DIRECTLY AFFECTED
BY SUCH SPILLS, AND I WOULD STRONGLY URGE THE COMMITTEE TO TAKE PROMPT
ACTION TO APPROVE LEGISLATION DEALING WITH THIS VERY IMPORTANT PROBLEM.
I WOULD LIKE TO DIRECT YOUR ATTENTION, IF I MAY, TO A RECENT
HAZARDOUS WASTE SPILL IN THE SUSQUEHANNA RIVER NEAR PITTSTON,
PENNSYLVANIA, AND THE NEED FOR "SUPERFUND."
LESISLATION
THE RECENT DISCHARGE OF OIL AND HIGHLY TOXIC CHEMICALS INTO THE
SUSQUEHANNA RIVER NEAR PITTSTON, PENNSYLVANIA, DRAMATIZES THE NEED FOR A
FEDERAL "SUPERFUND" FOR MONITORING, CONTAINMENT, AND CLEAN-UP OF
HAZARDOUS WASTE SPILLS. THANKS TO THE EFFORTS OF STATE AND FEDERAL
OIFICIALS, THE DAILY DISCHARGE OF TOXIC WASTES--3,000 GALLONS ONE DAY
LAST WEEK--HAS BEEN CONTAINED TO THE POINT WHERE IT NO LONGER PRESENTS
AN IMMEDIATE PUBLIC HEALTH HAZARDS, DESPITE THE BUDGETARY AND LEGAL
CONSTRAINTS IN THE CURRENT HAZARDOUS WASTES LEGISLATION. BUT WITHOUT
THE SORT OF FUNDING AND RESPONSE CAPABILITIES PROVIDED UNDER THE
"SUPERFUND" PROPOSALS, THE NEXT TIME AN INCIDENT SUCH AS THAT AT
PITTSTON OCCURS THE PUBLIC MAY NOT BE SO LUCKY.
ON JULY 30 A WASTE SLICK OF OIL AND TOXIC CHEMICALS WHICH GREW TO 35
MILES IN LENGTH APPEARED ON THE SUSQUEHANNA RIVER NEAR THE TOWN OF
PITTSTON. SUBSEQUENT INVESTIGATION REVEALED THE SOURCE OF THE SLICK:
POISONOUS INDUSTRIAL WASTES HAD BEEN ILLEGALLY DUMPED INTO ABANDONED
COAL MINES AND WERE GUSHING FROM A MINE OUTLET INTO THE RIVER. HAD THE
CHEMICALS NOT BEEN
CRIMINAL INVESTIGATION OF THE DUMPING IS STILL PROCEEDING, ALTHOUGH
THE MAXIMUM FINE FOR ILLEGAL DUMPING OF WASTES IS ONLY $300 UNDER
PENNSYLVANIA LAW. PROVIDING AN INDICATION OF THE EXTENT OF THE ILLEGAL
DUMPING, PRELIMINARY INVESTIGATION HAS SHOWN THAT 13 COMPANIES WERE
INVOLVED OVER A THREE-MONTH PERIOD, AND THAT ONE COMPANY ALONE DUMPED
OVER 300,000 GALLONS PER MONTH.
COORDINATING THE CLEAN-UP AND CONTAINMENT EFFORTS HAVE BEEN THE
PENNSYLVANIA DEPARTMENT OF ENVIRONMENTAL RESOURCES AND THE U.S.
ENVIRONMENTAL PROTECTION AGENCY. EPA IS FUNDING THE CLEAN-UP EFFORT, AS
THE STATE HAS NO FUNDS ALLOCATED FOR SUCH PURPOSES. THROUGH
CONSTRUCTION OF A LIME PIT 95 PERCENT OF THE CONTAMINANTS ARE BEING
CONTAINED; THE 5 PERCENT DISCHARGE MEETS THE STANDARDS OF THE SAFE
DRINKING WATER ACT. VAPOR DISCHARGES AT THE SITE ARE MONITORED DAILY
AND ARE WELL WITHIN ACCEPTABLE LIMITS.
HOWEVER, ACCORDING TO TOM MASSEY, EPA ON-SITE COORDINATOR FOR THE
CLEAN-UP AND CONTAINMENT EFFORT, EXISTING LEGAL AUTHORITY AND FUNDING
HAVE BEEN STRETCHED TO THEIR ABSOLUTE LIMITS. THE AUTHORITY AND FUNDING
FOR FEDERAL ACTION, CONTAINED IN PUBLIC LAW 95-500 SECTION 311, LIMITS
THE ON-SITE COORDINATOR IN HIS USE OF THE FUND TO SURFACE WATER
POLLUTION CAUSED BY A MIXTURE OF OIL AND ANY OF 299 CHEMICALS. WITHOUT
THE PRESENCE OF THE OIL, ACCORDING TO MASSEY, THE FEDERAL GOVERNMENT
WOULD HAVE BEEN POWERLESS TO ACT. IN ADDITION, UNDER SECTION 311
CLEAN-UP EFFORTS CAN ONLY BE DIRECTED AT POLLUTION OF WATER, NOT AIR AND
LAND--BOTH OF WHICH HAVE BEEN CONTAMINATED IN THIS PARTICULAR CASE.
SHOULD THE CHARACTERISTICS OF THE DISCHARGE CHANGE, THE FEDERAL
GOVERNMENT MIGHT BE POWERLESS TO ACT.
STILL ANOTHER SERIOUS OMISSION IN THE CURRENT LEGISLATION IS THE FACT
THAT SECTION 311 DOES NOT AUTHORIZE THE DRILLING OF THE BORE HOLES THAT
WOULD BE NECESSARY TO GET AT AND ELIMINATE PRECLUDED FOR ANOTHER YEAR.
THE TOTAL COST TO ELIMINATE THE SOURCE OF THE DISCHARGE AT PITTSTON
IS ESTIMATED BY EPA TO BE $5 MILLION, WHICH INCLUDES THE COST OF
DRILLING 100 TO 200 300-FOOT DEEP HOLES AT A COST OF $40,000 EACH. THE
CONTAINMENT OPERATION AT PITTSTON HAS ALREADY COST $225,000, AND AN
ADDITIONAL $300,000 HAS BEEN REQUESTED. FOR ALL SUCH EFFORTS
NATIONWIDE, SECTION 311 FUNDING FOR THE CURRENT YEAR TOTALS $35 MILLION,
OF WHICH $9.7 MILLION REMAINS. MOST OF THE REMAINING FUNDS HAVE ALREADY
BEEN COMMITTED. ANOTHER INCIDENT SUCH AS PITTSTON COULD DEPLETE THE
FUND ENTIRELY.
IN SHORT, THE INCIDENT AT PITTSTON COULD NOT HAVE BEEN BETTER-TIMED
TO ILLUSTRATE THE NEED FOR A HAZARDOUS WASTE SUPERFUND. IN CONSIDERING
THE LEGISLATIVE PROPOSALS BEFORD IT--S. 1341, THE ADMINISTRATION
PROPOSAL; AND S.1480, THE CULVER-MUSKIE PROPOSAL--THE ENVIRONMENT AND
PUBLIC WORKS COMMITTEE WOULD BE WELL-ADVISED TO CONSIDER THE FOLLOWING
POINTS:
(1) PROVISIONS OF WHATEVER HAZARDOUS WASTES SUPERFUND BILL THE
COMMITTEE REPORTS OUT SHOULD BE MADE RETROACTIVE TO COVER SPILLS SUCH AS
THAT AT PITTSTON.
(2) ALTHOUGH THE GOVERNMENT RESPONSE TO A CRISIS SUCH AS THAT WHICH
OCCURRED AT PITTSTON WOULD BE IDENTICAL UNDER THE TWO MEASURES, THE
SOURCE OF MONIES FOR THE $500 MILLION FUND WOULD DIFFER. THE
ADMINISTRATION BILL INCLUDES $100 MILLION IN FEDERAL FUNDING--AN
ALLOCATION WHICH MIGHT PROVE CRUCIAL IN DEALING WITH SPILLS WHICH
OCCURRED BEFORD INDUSTRY FEES COULD BE COLLECTED, ESPECIALLY IF THE
IMPOSITION OF THESE FEES WERE TO BE CHALLENGED IN COURT.
(3) HAD ANY INDIVIDUALS SUFFERED DAMAGES SUCH AS MEDICAL COSTS FROM
THE PITTSTON DISCHARGE, UNDER THE ADMINISTRATION BILL THEY COULD NOT
HAVE BEEN COMPENSATED. THE CULVER-MUSKIE BILL WOULD COMPENSATE VICTIMS
OF HAZARDOUS WASTES FROM ABANDONED LEAKING SITES--AS WELL AS FROM OIL
AND CHEMICAL SPILLS. FEEDSTOCKS MAKES NO DISTINCTION BETWEEN COMPANIES
THAT ARE CAREFUL IN HANDLING SUCH WASTES AND THOSE THAT ARE NEGLIGENT.
FINANCING THE FUND VIA FINES LEVIED ON VIOLATORS WOULD DISCOURAGE FUTURE
INFRACTIONS AND IRRESPONSIBLE BEHAVIOR.
(5) UNDER THE MUSKIE-CULVER BILL, STATE MATCHING FUNDS WOULD BE
REQUIRED FOR NON-EMERGENCY OPERATIONS. THIS PROVISION WOULD BE CLEARLY
INAPPROPRIATE IN CASES SUCH AS PITTSTON, WHERE PENNSYLVANIA WAS AN
INNOCENT VICTIM OF DUMPING BY NEW JERSEY FIRMS.
STATEMENT
062079
PELL C SENATOR, RI
U.S. SENATE SUBCOMMITTEE ON RESOURCE PROTECTION SUBCOMMITTEE ON
ENVIRONMENTAL POLLUTION
104751
HEARING
CORRESPONDENCE
SENATE
THE HONORABLE EDMUND S. MUSKIE UNITED STATES SENATE CHAIRMAN
SUBCOMMITTEE ON ENVIRONMENTAL POLLUTION
THE HONORABLE JOHN C. CULVER UNITED STATES SENATE CHAIRMAN
SUBCOMMITTEE ON RESOURCE PROTECTION
I WOULD APPRECIATE IT IF YOU WOULD INCLUDE THE ENCLOSED STATEMENT BY
ME IN THE RECORD OF YOUR JOINT HEARINGS ON THE RELEASE OF HAZARDOUS
SUBSTANCES INTO THE ENVIRONMENT.
CLAIBORNE PELL
STATEMENT
062079
PELL C SENATOR, RI
U.S. SENATE SUBCOMMITTEE ON RESOURCE PROTECTION SUBCOMMITTEE ON
ENVIRONMENTAL POLLUTION
104752
HEARING
CORRESPONDENCE
SENATE
THANK YOU FOR THE OPPORTUNITY TO ADDRESS THIS JOINT HEARING OF THE
SUBCOMMITTEE ON RESOURCE PROTECTION AND THE SUBCOMMITTEE ON
ENVIRONMENTAL POLLUTION. THE SUBJECT BEFORE YOU--THE RELEASE OF
HAZARDOUS SUBSTANCES INTO THE ENVIRONMENT--CONCERNS ME DEEPLY.
AS YOU KNOW, HAZARDOUS SUBSTANCES ARE RELEASED FROM A VARIETY OF
SOURCES. MY REMARKS TODAY WILL FOCUS ON ONE SOURCE IN PARTICULAR THAT
HAS BEEN PUBLICLY IDENTIFIED AS THREATENING COMMUNITIES ACROSS THE
NATION.
THAT SOURCE IS THE NUMEROUS, OUTDATED, INADEQUATELY PREPARED
HAZARDOUS WASTE DISPOSAL SITES.
OBVIOUSLY WE CANNOT ELIMINATE THE SOURCE OF THESE WASTES, "CRADLE TO
GRAVE" CONTROL OF THESE WASTES AND ARE CONSIDERING ADDITIONAL
LEGISLATION TO ADDRESS THE LEGACY OF INADEQUATE DISPOSAL PRACTICES.
THE ENVIRONMENTAL PROTECTION AGENCY RECENTLY RELEASED THE COUNTRY'S
FIRST INVENTORY OF CHEMICALS PRODUCED IN THE UNITED STATE OR IMPORTED
HERE. THIS INVENTORY, REQUIRED BY THE TOXIC SUBSTANCES CONTROL ACT,
GIVES SOME IDEA OF THE INITIAL SCOPE OF ESTABLISHING STRICTER CONTROLS
AND OF AMELIORATING DAMAGE FROM EXISTING DISPOSAL SITES.
STATEMENT
062079
PELL C SENATOR, RI
U.S. SENATE SUBCOMMITTEE ON RESOURCE PROTECTION SUBCOMMITTEE ON
ENVIRONMENTAL POLLUTION
104753
HEARING
CORRESPONDENCE
SENATE
OFFICIALS AT EPA HAVE SAID THIS NATIONAL INVENTORY IS PRETTY MUCH
LIMITED TO CHEMICAL COMPOUNDS USED IN COMMERCE. IT IS NOT INTENDED TO
INCLUDE INDUSTRIAL WASTE PRODUCTS RADIOACTIVE WASTE, OR A VARIETY OF
CHEMICAL BYPRODUCTS THAT ARE COMMERCIALLY USELESS BUT POTENTIALLY
HAZARDOUS.
THIS INVENTORY, WHICH I AM INFORMED IS PRINTED IN FIVE VOLUMES AND
WEIGHS ABOUT 20 POUNDS, IS FAR FROM A CATALOG OF THE CHEMICALS THAT MAN
MAY BE POURING INTO HIS ENVIRONMENT. I HAVE NOT BEEN ABLE TO SECURE AN
OFFICIAL ESTIMATE OF THE ACTUAL NUMBER, BUT INDICATIONS ARE THAT THE
TOTAL MIGHT EVEN DOUBLE THE NUMBER OF THE INVENTORY.
A STUDY COMMISSIONED FOR THE ENVIRONMENTAL PROTECTION AGENCY LAST
FEBRUARY ESTIMATED THAT THERE WERE MORE THAN 50,000 DUMPS IN THE NATION,
OF WHICH 34,000 COULD POSE HAZARDS. THE AGENCY ESTIMATED IN APRIL THAT
AS MANY AS 1,200 TO 2,000 DUMP SITES AROUND THE COUNTRY MAY CONTAIN
WASTES THAT COULD DEVELOP INTO IMMINENT HEALTH HAZARDS.
THE AGENCY HAS IDENTIFIED MORE THAN 130 HAZARDOUS WASTE DUMP SITES.
THEY ARE IN A MAJORITY OF STATES FROM ALASKA TO FLORIDA AND FROM TEXAS
TO MAINE.
ALTHOUGH EPA SUMMARIES INDICATE THERE IS NO IMMEDIATE HAZARD IN
NEARLY HALF OF THE SITES, OFFICIALS ADD THAT THEY ARE CONTINUING TO
MONITOR SITES TO ENSURE PUBLIC HEALTH PROTECTION. NOVEMBER AS
CONTAINING HAZARDOUS WASTE, ARE IN MY OWN STATE OF RHODE ISLAND. A
THIRD SITE HAS BEEN IDENTIFIED BY RHODE ISLAND OFFICIALS BUT HAS NOT
BEEN ADDED TO THE AGENCY'S PUBLISHED NATIONAL LIST.
THE TWO SITES INITIALLY IDENTIFIED ARE THE CANDY BOX FARM IN COVENTRY
AND THE FORMER LANDFILL IN SMITHFIELD. THE THIRD IS A MUNICIPAL
LANDFILL IN BRISTOL, WHICH WAS IDENTIFIED BY RHODE ISLAND OFFICIALS AS A
SITE AT WHICH CHEMICALS HAD BEEN BOTH POURED FROM DRUMS AND BURIED IN
THEM.
NONE OF THESE SITES, FRANKLY, POSE THREATS OF THE MAGNITUDE OF SUCH
MUCH-PUBLICIZED SITES AS THE VALLEY OF THE DRUMS OR LOVE CANAL. THEY
REPRESENT, HOWEVER, THE SAME POTENTIAL THREAT OF HAZARDOUS WASTE
LEACHING INTO WATER SUPPLIES AND THE FOOD CHAIN.
THE RESIDENTS OF COVENTRY, SMITHFIELD AND BRISTOL, AS WELL AS THE
RESIDENTS OF NEIGHBORING TOWNS, ARE LIVING WITH DREADFUL DOUBTS ABOUT
THEIR HEALTH AND SAFETY. THESE DOUBTS HAVE FOCUSED PUBLIC ATTENTION ON
THE NEED TO CLEAN-UP OR CONTAIN SITES THAT POSE A THREAT AND TO CLEARLY
IDENTIFY THOSE SITES THAT NO LONGER POSE A THREAT.
I WOULD LIKE TO FOCUS FOR A MOMENT ON THE CANDY BOX FARM SITE AS AN
EXAMPLE OF THE TASK FACED BY RHODE ISLAND OFFICIALS, A TASK THAT FRANKLY
CRIES OUT FOR SUBSTANTIAL FEDERAL ASSISTANCE.
STATEMENT
062079
PELL C SENATOR, RI
U.S. SENATE SUBCOMMITTEE ON RESOURCE PROTECTION SUBCOMMITTEE ON
ENVIRONMENTAL POLLUTION
104754
HEARING
CORRESPONDENCE
SENATE
EPA'S PUBLISHED DESCRIPTION OF THE SITE STATES THAT IT WAS USED AS A
PIG FARM AND AS A COLLECTOR OF CHEMICAL DITCH AREAS.
THE DESCRIPTION NOTES THAT THE SITE INCLUDES AN OPEN PIT CONTAINING
FLAMMABLE LIQUIDS AND DRUMS OF VARIOUS UNKNOWN CHEMICAL WASTES. IT ALSO
NOTES THAT A SUBSTANTIAL EXPLOSION AND FIRE OCCURRED IN LATE 1977 ON THE
SITE, WHICH IS LOCATED ON A HILL WITH A GENERAL SLOPE TO A TRIBUTARY OF
THE MOOSUP RIVER.
NEWSPAPER REPORTS ON THE SITE, HOWEVER, CONTAIN FAR MORE GRAPHIC
DESCRIPTIONS. I WOULD LIKE TO QUOTE BRIEFLY FROM ONE OF THOSE
DESCRIPTIONS PUBLISHED IN THE NEW PAPER OF JUNE 6-13, 1979:
"ONE OF MY BIGGEST CONCERNS IS HOW ALL THOSE CHEMICALS WILL REACT
WHEN COMING TOGETHER," SAID MEDICAL TECHNICIAN BERNARD GEORGE, DURING A
BREAK FROM HIS JOB AT THE RHODE ISLAND MEDICAL CENTER..."WE KNOW THERE
ARE ABOUT 15 UNBURIED BARRELS OF SODIUM ALUMINUM HYDRIDE THERE. AND
IT'S HIGHLY EXPLOSIVE WHEN COMING IN CONTACT WITH MOISTURE..."
HE ADDED THAT PARAQUAT, TOULENE, CHLOROTHANE, FERRIC CHLORIDE, AND
BENZENE HAVE ALSO BEEN FOUND AT THE SITE.
STATEMENT
062079
PELL C SENATOR, RI
U.S. SENATE SUBCOMMITTEE ON RESOURCE PROTECTION SUBCOMMITTEE ON
ENVIRONMENTAL POLLUTION
104755
HEARING
CORRESPONDENCE
SENATE
"CHLOROTHANE PRODUCES NERVE GAS WHEN COMING IN CONTACT WITH
SUNLIGHT," HE EXPLAINED, "AND BENZENE, WHICH HAS BEEN BANNED BY THE
OCCUPATIONAL SAFETY AND HEALTH ACT, IS CARCINOGENIC AS WELL AS FERRIC
CHLORIDE."
(WILLIAM) MCLAUGHLIN (WHO LIVES ABOUT A MILE FROM THE SITE) SAID
PARAQUAT WAS USED IN VIET NAM AS A DEFOLIANT.
"IT WAS SPRAYED ON THE JUNGLES ONE DAY...AND THE NEXT DAY THERE'D BE
NO JUNGLE," HE SAID. "AND WHEN IT GOT ON A PERSON'S SKIN, IT WOULD
CAUSE HIS OUTER LAYER TO PEEL OFF SO JUST THE MUSCLE WOULD BE LEFT.
THE VICTIMS USED TO BEG AMERICAN SOLDIERS TO KILL THEM TO PUT THEM
OUT OF THEIR MISERY."
I FIND IT DIFFICULT TO IMAGINE A MORE UNFORTUNATE RANDOM
SUNLIGHT...CHEMICALS THAT ATTACK PEOPLE AND THE ENVIRONMENT.
THODE ISLAND OFFICIALS HAVE RESPONDED COMMENDABLY TO THE NEED FOR
CLEAN UP EFFORTS. THE RHODE ISLAND GENERAL ASSEMBLY, AT THE REQUEST OF
GOVERNOR J. JOSEPH GARRAHY, RECENTLY APPROPRIATED $300,000 FOR CLEAN UP
WORK AT THE COVENTRY SITE AND APPROPRIATED AN ADDITIONAL $200,000 FOR
THE OTHER TWO SITES.
THIS MONTH TECHNICIANS, WEARING BREATHING DEVICES AND PROTECTIVE
CLOTHING, REMOVED 14 METAL DRUMS (EACH WITH A 55 GALLON CAPACITY)
CONTAINING A LIQUID SOLUTION OF SODIUM ALUMINUM HYDRIDE FROM THE
COVENTRY SITE.
STATEMENT
062079
PELL C SENATOR, RI
U.S. SENATE SUBCOMMITTEE ON RESOURCE PROTECTION SUBCOMMITTEE ON
ENVIRONMENTAL POLLUTION
104756
HEARING
CORRESPONDENCE
SENATE
THEY PUT THESE DRUMS IN SLIGHTLY LARGER BARRELS PACKED WITH ANOTHER
CHEMICAL TO PROTECT AGAINST EXPLOSION.
THOSE STEPS, HOWEVER, DID NOT END THE INITIAL EFFORT BY THODE ISLAND
OFFICIALS TO START CLEAN UP ACTIVITIES. RHODE ISLAND COULD NOT FIND A
LICENSED DISPOSAL FACILITY ANYWHERE IN THE COUNTRY FOR THE CHEMICALS AND
NOW IS INVESTIGATING OTHER ALTERNATIVES, INCLUDING NEUTRALIZING THE
CHEMICALS OR INCINERATING THEM.
RHODE ISLAND OFFICIALS HAVE NOTED IN CONVERSATIONS AND CORRESPONDENCE
WITH EPA OFFICIALS THAT A COMPLETE REMOVAL OF ALL BURIED MATERIAL OR
CONTAMINATED SOIL AT THE COVENTRY SITE COULD BE VERY COSTLY. THE RHODE
ISLAND OFFICIALS HAVE ALREADY IDENTIFIED TWO LOCATIONS WHERE THE
MATERIAL IS LEECHING OUT IN SUBSTANTIAL QUANTITIES, BUT DO NO KNOW
EXACTLY HOW MUCH MATERIAL IS NOW IN THE GROUND.
RHODE ISLAND OFFICIALS HAVE ASKED EPA FOR GUIDANCE AND ASSISTANCE,
INCLUDING ANY ASSISTANCE IN THE AREA OF LABORATORY SERVICES.
EARLIER, I HAD REQUESTED ANY ASSISTANCE THE AGENCY MIGHT OFFER IN
CLEANING UP RHODE ISLAND'S CLEARLY IDENTIFIED HAZARDOUS WASTE DISPOSAL
SITES. THE AGENCY'S RESPONSE,
STATEMENT
062079
PELL C SENATOR, RI
U.S. SENATE SUBCOMMITTEE ON RESOURCE PROTECTION SUBCOMMITTEE ON
ENVIRONMENTAL POLLUTION
104757
HEARING