By Kevin McCarty

In testimony before the Senate Environment and Public Works Committee May 25, Macon Mayor Jim Marshall further amplified the Conference’s message that the time has come for bipartisan legislative action on brownfields and selected reforms to the nation’s Superfund law.

In delivering this message, Marshall talked about the scale of the brownfields problem, stating that "Every single city suffers from this problem." Marshall cited key findings from the Conference’s recent national brownfields survey, "We have 180 cities with about 19,000 sites and more than 176,000 acres." He also explained that "this is only 180 cities out of the more than 20,000 municipalities in the U.S."

He talked about Macon’s experience in coming to terms with the existence of these properties and the effects of Superfund’s liability regime on communities and owners of contaminated sites, stating that "Macon’s experience is repeated through the country. You don’t want to be on the list."

Noting that much of the debate has focused on the existing inventories of these sites, he emphasized the need to craft legislation that deals with the sites now in use - sometimes called "active brownfields" - where owners are fearful of dealing with actual or potential contamination. "Many properties within existing communities are contaminated and owners are not interested in getting the bad news," he said. Further describing the effects of current liability rules, Marshall pointed out that "owners don’t want to find out if there is a problem." As a result, he noted, "the land lays fallow" and further exacerbates urban sprawl.

Marshall explained the need to break this cycle of avoidance by granting states more authority to make final decisions on these properties, commonly called "finality," so that owners are certain about the rules and what to expect when cleaning up these sites. "These properties are sitting there and there is no impetus to clean up these sites. Even if the owner is willing to dispose of the property, nobody is willing to buy it." He called provisions on finality "a big step forward" and also cited the importance of innocent party protections.

Praising the Committee for its bipartisan track record, Marshall said, "If it is possible to craft something that is bipartisan, USCM would be very appreciative of this."

He concluded his opening statement by noting the importance of providing Superfund liability relief for municipalities in dealing with Superfund sites where municipal garbage was co-disposed with hazardous wastes, and as a result taxpayers in those communities are liable. He pointed out that "the old set of taxpayers that created the problem" is not the same as the "new set of taxpayers" under the Superfund’s liability rules now required to pay for the cleanup.

Also testifying with Marshall was Glenn Cove (NY) Mayor Thomas Suozzi, who appeared on behalf of the American Communities for Cleanup Equity, a coalition of national local government organizations that has focused on issues pertaining to municipal liability at Superfund sites.

Suozzi called on the Committee to "pass something this year." He said, "Local governments have been saddled with these costs (at co-disposal sites) under Superfund."

He praised the Administration for its municipal settlement policy at Superfund sites where municipal solid waste was co-disposed with hazardous wastes, noting that ""We (ACCE) continue to support this fair and appropriate policy." He noted, however, that legislation is needed to "codify" the policy, to avoid litigation on the policy and to provide localities with "more certainty and confidence."

Need for "Finality" Discussed

Following the oral statements by the mayors, Senators inquired about how to strike the balance between federal and state authority on making final decisions affecting contaminated properties, particularly lesser contaminated sites like most brownfields.

Marshall responded that market forces remain a problem in that "sellers know that the land value won’t support cleanup." He pointed out that the innocent purchaser reforms and "finality" helps a lot, and said that "this still won’t address the hundreds and hundreds of properties that have cancer."

He also explained that "we just have to take a chance" and balance the risk of a few properties where there might be a problem with the many more that will be helped by the certainty that "finality" provides. He said, "The payback for all of us is much greater than the few cases that go wrong."

In responding to questions on related aspects of this issue from Senators Max Baucus (MT), George Voinovich (OH), Frank Lautenberg (NJ) and Bob Smith (NH), Marshall summed up the views of the mayors, stating "Mayors feel brownfields is a long-term economic and environmental problem facing the country." He added that the risks from the more contaminated and relatively small number of Superfund sites "don’t come close" to the impact that brownfields and lesser contaminated sites now exert on the "thousands of communities and the many millions of people all across America."

In concluding his remarks, Marshall said, "Mayors feel like they are being held hostage by these sites" and urged the Senators to "move to bring a bipartisan solution."

In comments on the scale of the brownfields problem nationally, Committee Chairman John Chafee (RI) remarked that "we see with a cursory review that this problem is more serious than your report shows." During his opening comments, he called his pending legislation - the "Superfund Program Completion Act of 1999" (S. 1090) - a "good bill." The legislation was introduced May 20 by Senators Chafee, Smith and Trent Lott (MS), the Senate Majority Leader.

With U.S EPA Administrator Carol Browner providing the Administration’s support for their measure, several Senate Democrats, led by Senator Baucus, introduced legislation (S. 1105) on the day before the hearing. While differing in several key areas, S. 1105 is similar to the Chafee/Smith/Lott bill in provisions on brownfields and liability relief for municipalities and others under Superfund. Browner, who was scheduled to testify before the Committee May 26, met with Chairman Chafee and other Senators to talk about ways to develop a compromise bill and did not testify before the panel.