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CLINTON ADMINISTRATION ADVOCATES STARTING OVER

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WASHINGTON- The Clinton administration remains opposed to comprehensive Superfund liability reform.

Environmental Protection Agency Administrator Carol Browner made that clear during a 90-minute appearance before the Senate Environmental and Public Works Committee's Subcommittee on Superfund, Waste Control & Risk Assessment last week.

The panel's chairman-Sen. Robert Smith, R.-N.H.-had called the hearing to consider testimony on the Senate Republican leadership's Superfund Cleanup Acceleration Act of 1997," or S.8.

S.8, part of a package of 10 legislative priorities introduced early in the 105th Congress, stops short of completely repealing Superfund's imposition of retroactive liability (BI, Feb. 10).

Retroactive liability repeal has been long sought by risk managers and insurers, who say it is unfair to subject parties to retroactive liability for dumping done legally when it occurred.

Although Sen. Smith said again during last week's hearing that he favors repealing Superfund's retroactive liability, S.8 calls instead for more modest reforms, such as removing certain co-disposal sites, such as municipal landfills, from Superfund's liability regime.

S.8 also would determine liability for cleaning up multi-user sites through a system of binding allocation rather than the current system of joint and several liability under most circumstances. Generators of small amounts of waste would be exempt from liability, and other dumpers that agreed to abide by the independent allocator's apportionment of liability would be free of having to pay for cleaning up more than their share.

Those that refused to accept the allocator's division and subsequently were found responsible for at least that portion of the cleanup costs would be subject to joint and several liability for cleaning up pollutants for which no financially solvent responsible party could be found.

However, Ms. Browner held that the measure goes too far to be acceptable as a consensus Superfund reauthorization bill.

"S.8's numerous liability exemptions and limits basically reject the notion that the largest polluters themselves pay their fair share of the costs of cleanup. We believe that is not something that American taxpayers will tolerate-nor should they be expected to," said Ms. Browner.

After detailing other problems the administration has with S.8, Ms. Browner asked the subcommittee: "Why don't we get everyone together, pull out a blank sheet of paper and draft a Superfund reform bill that recognizes the progress that we've made, addresses the remaining problems and sets the program on the right course for the future-with an ultimate goal of ridding our nation of hazardous waste sites and protecting the public health?"

Several senators noted during the hearing that S.8 represents the third time since 1993 that Congress has attempted to reauthorize the Superfund program.

Sen. John Chafee, R-R.I., and chief co-sponsor with Sen. Smith of S.8, pointed out that even when the Democratic Party controlled the White House and both chambers of Congress in 1994, attempts to reauthorize the program failed.

Sen. Chafee also asked Ms. Browner to reconsider her accusations that suggested liability reforms in general and those of S.8 in particular violate the principle of "polluter pays."

The administration already has violated that principle by advocating that contributors of small waste amounts be exempt from cleanup liability, he said.

"You've taken it upon yourself" to exempt certain parties, said Sen. Chafee to Ms. Browner. The senator said that he and other S.8 supporters have "also removed some, and you don't like it."

Ms. Browner replied that, "We all agree that the largest polluters should pay their fair share and the little people" should be exempt. The question is where to draw the line in the middle when determining which polluters should be let off the hook, she said.