A Legislative History of the Comprehensive Environmental Response, Compensation and Liability ("Superftund") Act of 1980* Frank P. Grad** I. INTRODUCTION Although Congress had worked on "Superfund" toxic and hazard- ous waste cleanup bills and on parallel oil spill bills for over three years, the actual bill which became law1 had virtually no legislative history at all. The bill which became law was hurriedly put to- gether by a bipartisan leadership group of senators (with some as- sistance from their House counterparts), introduced, and passed by the Senate in lieu of all other pending measures on the subject. It was then placed before the House, in the form of a Senate amend- ment of the earlier House bill. It was considered on December 3, 1980, in the closing days of the lame duck session of an outgoing Congress. It was considered and passed, after very limited debate, under a suspension of the rules, in a situation which allowed for no amendments. Faced with a complicated bill on a take it-or-leave it basis, the House took it, groaning all the way. A Carter Administration proposal, S. 1341,2 was submitted in the early days of the Ninety-sixth Congress, but it was sidetracked. There had been earlier efforts at toxic waste and oil spill cleanup * Adapted from 1A F. GRAD, TREATISE ON ENVIRONMENTAL LAW § 4A.04[2] (1981), by-permission of Matthew Bender, Inc. ** Professor of Law, Columbia University School of Law. 1. Comprehensive Environmental Response, Compensation and Liability Act of 1980, Pub. L. No. 96-510, 94 Stat. 2767 (to be codified at 26 U.S.C. §§ 4611-4682, 42 U.S.C. §§ 6911a, 9601-9657). 2. S. 1341, 96th Cong., 1st Sess. (1979). COLUMBIA JOURNAL OF ENVIRONMENTAL LAW legislation in the Ninety-fifth Congress, none of which passed.3 In the Ninety-sixth Congress, the bills which contributed to some ex- tent to the legislation as finally enacted were H.R. 7020,4 H.R. 855 and S. 1480.6 It was H.R. 7020 which, in name if not in substance, emerged from the legislative process, and the ultimate focus here will therefore be on its progress. The legislative history of a statute is always important in gather- ing the legislative intent for its implementation. In the instance of the "Superfund" legislation, a hastily assembled bill and a frag- mented legislative history add to the usual difficulty of discerning the full meaning of the law. The legislation that did pass, with all of its inadequacies, was the best that could be done at the time. While deficient in many respects, the Comprehensive Environ- mental Response, Compensation, and Liability Act of 1980 ("CERCLA" or "Superfund"), 7 together with the hazardous waste subtitle ("Subtitle C")s of the Resource Conservation and Recovery Act of 1976 ("RCRA"), 9 which was amended and reaffirmed by the same congressional committees during the same session of Con- gress,' 0 form a sufficient authorization to begin the cleanup of old hazardous waste sites and to avoid the consequences of new hazard- ous waste spills, for the protection of health and the environment. 3. See, e.g., S. 121, 182, 687, 1057, 1187, 2083, 95th Cong., 1st Sess. (1977); H.R. 776, 1827, 1900, 2364, 3038, 3134, 3691, 3926, 4570, 6213, 6803, 9616, 95th Cong.. 1st Sess. (1977). 4. H.R. 7020, 96th Cong., 2d Sess. (1980), 126 CONG. REC. H9,437-78 (daily ed. Sept. 23, 1980). 5. H.R. 85, 96th Cong., 1st Sess. (1979), 126 CONG. REC. H9,186-201 (daily ed. Sept. 19, 1980). 6. S. 1480, 96th Cong., 1st Sess. (1979), 126 CONG. REC. S14,938-48 (daily ed. Nov. 24, 1980). 7. Pub. L. No.96-510,94 Stat. 2767 (1980) (to be codified at 26 U.S.C. §§ 4611-4682,42 U.S.C. §§ 6911a, 9601-9657). 8. 42 U.S.C. §§ 6921-6931 (1976 & Supp. 11 1978), as amended by Pub. L. No. 96-482, §§ 7-17, 31(b), 94 Stat. 2334, 2336 (1980). 9. 42 U.S.C. §§ 6901-6987 (1976 & Supp. 11 1978), as amended by Solid Waste Disposal Act Amendments of 1980, Pub. L. No. 96-482, 94 Stat. 2334. The title of the 1980 amendments to RCRA derives from RCRA's status as an amendment to the Solid Waste Disposal Act of 1965, Pub. L. No. 89-272, 79 Stat. 997 (1965), as amended by Pub. L. No. 91-512, 84 Stat. 1288 (1970). As such, RCRA carried forward the policies manifested in the prior law, but greatly enlarged federal statutory authority for the control of hazardous wastes. 1A F. GRAD, TREATISE ON ENVIRONMENTAL LAW § 4.02[3][b][ii] (1981). 10. Solid Waste Disposal Act Amendments of 1980, Pub. L. No. 96-482, 94 Stat. 2334. Superfund Legislative History II. H.R. 85 H.R. 85, the "Oil Pollution Liability and Compensation Act," was introduced early in 1979. On January 15, 1979, the bill was referred jointly to the Committee on Merchant Marine and Fisher- ies and the Committee on Public Works and Transportation (and, because of its excise tax features, later to the Committee on Ways and Means).11 Merchant Marine and Fisheries reported it out on May 15, 1979,12 and Public Works and Transportation did the same on May 16, 1980.13 Ways and Means reported out a bill, with certain amendments, on June 20, 1980.14 The marked-up version of H.R. 85 consisted of provisions for a comprehensive system of li- ability and compensation for oil spill damage and removal costs. It provided for a $200 million trust fund to pay for oil spill cleanup and removal costs,' 5 and for damages for the following: injury to or destruction of real or personal property; 11 injury to or destruc- tion of natural resources; 17 loss of profits or earnings resulting from property or resource loss;18 and loss of tax revenue for one year. 19 The fund was to be derived from a fee, or tax, on each barrel of oil refined, or received at a terminal, within the United States. 20 The fund was to be subrogated to claims for which it paid out.2 1 With certain limits and defenses, operators/owners of vessels or facilities were to be "jointly, severally and strictly liable for all damages."22 Provision was made for limits of liability, for operator/owner finan- 11. 125 CONG. REC. H129 (daily ed. Jan. 15, 1979). 12. H.R. REP. No. 172, PT. 1, 96th Cong., 1st Sess. (1979). 13. H.R. REP. No. 172, PT. II, 96th Cong., 2d Sess. (1980). 14. H.R. REP. No. 172, PT. III, 96th Cong., 2d Sess. (1980). 15. H.R. 85, 96th Cong., 2d Sess. § 102, 126 CONG. REC. H9,187 (daily ed. Sept. 19, 1980). 16. H.R. 85, 96th Cong., 2d Sess. § 103 (a)(2 ), 126 CONG. REC. H9,187 (daily ed. Sept. 19, 1980). 17. H.R. 85, 96th Cong., 2d Sess. § 103(a)(3), 126 CONG. REC. H9,187 (daily ed. Sept. 19, 1980). 18. H.R. 85, 96th Cong., 2d Sess. § 103(a)(4 ), 126 CONG. REC. H9,187 (daily ed. Sept. 19, 1980). 19. Id. 20. H.R. 85, 96th Cong., 2d Sess. § 102, 126 CONG. REC. H9,187 (daily ed. Sept. 19, 1980). 21. H.R. 85, 96th Cong., 2d Sess. § 108, 126 CONG. REC. H9,189 (daily ed. Sept. 19, 1980). 22. H.R. 85, 96th Cong., 2d Sess. § 104, 126 CONG. REC. H9,187 (daily ed. Sept. 19, 1980). 1982] COLUMBIA JOURNAL OF ENVIRONMENTAL LAW cial responsibility, and for special claims settlement procedures. 23 The Ways and Means Committee made the proposed new tax on oil effective only until September 30, 1985,24 and similarly limited the proposed tax on designated petrochemical feedstocks and inor- ganic substances. 25 The bill was passed by the House on Septem- ber 19, 1980,26 and was reported to the Senate soon thereafter. No further action was taken on it until some of its features were incor- porated in the final bill acted on by the Senate. III. H.R. 7020 Congressman Florio introduced H.R. 7020, entitled the "Haz- ardous Waste Containment Act," on April 2, 1980.27 It was referred to the Committee on Interstate and Foreign Commerce, which reported a clean bill on May 16, 1980.28 In essence, the bill proposed to regulate inactive sites bearing hazardous wastes (other than oil) on land and in non-navigable waters, by a regime of re- porting, cleanup and monitoring. As reported out of committee, the bill was in the form of an amendment to RCRA. 29 The proposed Act was actually quite limited in scope. It pro- vided that nothing in the Act should apply to oil or other pollution of navigable waters, 30 and then proceeded to declare as its goal the preparation of a state-by-state inventory of inactive waste disposal sites, and the cleanup of such sites for the protection of health and the environment. 31 The bill would add a new part to Subtitle C of RCRA, to be entitled "Part 2-Hazardous Waste Response Pro- 23. H.R. 85, 96th Cong., 2d Sess. §§ 104-107, 126 CONG. REC. H9,187-89 (daily ed. Sept. 19, 1980). 24. H.R. 85, 96th Cong., 2d Sess. § 511 (enacting I.R.C. § 4601(d)), 126 CON(. REC. H9,199-200 (daily ed. Sept. 19, 1980). 25. H.R. 85, 96th Cong., 2d Sess. § 511 (enacting I.R.C. § 4651(c)), 126 CONG. REC. H9,199-200 (daily ed. Sept. 19, 1980). 26. 126 CONG. REC. H9,208 (daily ed. Sept. 19, 1980). 27. 126 CONG. REC. H2,490 (daily ed. Apr. 2, 1980). 28. H.R. REP. No. 96-1016, PT. I, 96th Cong., 2d Sess. (1980), reprinted in [1980] U.S. CODE CONG. & AD. NEws 6119. 29. Id. at 1. 30. H.R. 7020, 96th Cong., 2d Sess. § 2, 126 CONG. REC. H9,452 (daily ed. Sept. 23, 1980). 31. H.R. 7020, 96th Cong., 2d Sess. § 4, 126 CONG. REC. H9,453 (daily ed. Sept. 23, 1980). However, a careful reading of the new § 30 4 1(e) proposed for Subtitle C of RCRA discloses that it would have applied to interim sites, e.g., hazardous waste sites operating under an interim permit pursuant to RCRA § 3005(e), 42 U.S.C. § 6 92 5(e) (1976). Superfund Legislative History gram." The program by its own terms would apply solely to inac- tive hazardous waste sites. 32 Though limited, the bill's innovations were nonetheless impor- tant. The bill would require owners to report the existence and lo- cation of inactive hazardous waste sites, 33 and also called for the es- tablishment of cleanup priorities depending on the threat of a release of hazardous waste. ' Monitoring3 5 of inactive sites would also be required. The Administrator of the Environmental Protection Agency ("EPA") would have emergency response authority for cleanup and remedial action when the release of any hazardous waste "presents or may present an imminent and substantial endangerment to pub- lic health or the environment, or [when] there is a substantial threat of such release." 36 The bill also would provide for state participa- tion and state contribution to the effort. 37 The bill would provide for the strict liability of persons responsible for spills and, in a proposal which would engender much debate, for apportionment of costs among responsible parties, avoiding joint and several liabil- ity. 38 The bill also would provide for a National Hazardous Waste Re- sponse Plan. The Plan would lay the basis for coordination of fed- eral efforts, and a state contribution of ten percent of total costs would be required.3 9 The bill would create a Hazardous Waste Response Fund, to be financed by the collection of fees or taxes, reimbursements, amounts recovered in subrogation, and penalties collected, in a to- tal amount of $600 million. Crude oil and petroleum products, as 32. H.R. 7020, 96th Cong., 2d Sess. § 5(a) (enacting RCRA § 3021), 126 CONG. REC. H9,454 (daily ed. Sept. 23, 1980). 33. H.R. 7020, 96th Cong., 2d Sess. § 5(a) (enacting RCRA § 3031), 126 CONG. REC. H9,454-55 (daily ed. Sept. 23, 1980). 34. H.R. 7020, 96th Cong., 2d Sess. § 5(a) (enacting RCRA § 3032), 126 CONG. REC. H9,455 (daily ed. Sept. 23, 1980). 35. H.R. 7020, 96th Cong. 2d Sess. § 5(a) (enacting RCRA § 3033), 126 CoNG. REc. H9,455 (daily ed. Sept. 23, 1980). 36. H.R. 7020, 96th Cong., 2d Sess. § 5(a) (enacting RCRA § 3041(a)), 126 CONG. REC. H9,455 (daily ed. Sept. 23, 1980). 37. H.R. 7020, 96th Cong., 2d Sess. § 5(a) (enacting RCRA § 3042), 126 CONG. REC. H9,457 (daily ed. Sept. 23, 1980). 38. H.R. 7020, 96th Cong., 2d Sess. § 5(a) (enacting RCRA §§ 3041(c), 3071), 126 CON. REc. H9,456, 9,459 (daily ed. Sept. 23, 1980). 39. H.R. 7020, 96th Cong., 2d Sess. § 5(a) (enacting RCRA § 3043), 126 CONG. REC. H9,457 (daily ed. Sept. 23, 1980). 1982) COLUMBIA JOURNAL OF ENVIRONMENTAL LAW well as specified petrochemical feedstocks and inorganic sub- stances, would be taxed or fees collected therefrom to finance the Fund. 40 In addition to the limitations mentioned above, the scope of the bill was limited in other ways. Under the law, compensatory reim- bursement for the costs of cleanup and remedial action would be available only to the governmental authority which incurred such costs. 41 The bill, as reported out of committee, contained no provi- sion relating to third-party liability, and provided only for an as- sessment of injury to "natural resources of significant commercial, ecological, or recreational value resulting from the release or threatened release" in the context of remedial action, and limited the funding available for such remedial action. 42 IV. S. 1480 • The bill favored by some environmentalists was S. 1480, intro- duced on July 11, 1979, by Senators Muskie, Stafford, Chafee, Randolph and Moynihan, and joined subsequently by a score or so of co-sponsors. The bill, entitled the "Environmental Emergency Response Act," was referred to the Committee on Environment and Public Works on July 11.43 On the same day, that Committee referred it to its Subcommittee on Environmental Pollution, which held hearings on the bill on July 20, 1979, 44 and considered the bill intermittently until April, 1980. The Subcommittee then re- ported to the full Committee, which held markup sessions during June, 1980, and reported the bill favorably with amendments to the Senate on July 11, 1980, at which time it was placed on the calendar. It was referred to the Committee on Finance by unani- mous consent to consider section 5, with instructions, and to report back no later than November 21, 1980. The Finance Committee reported on November 18, 1980, and a bill with the S. 1480 40. H.R. 7020, 96th Cong., 2d Sess. § 5(a) (enacting RCRA § 3051), 126 CONG. REC. H9,457-58 (daily ed. Sept. 23, 1980). 41. H.R. 7020, 96th Cong., 2d Sess. § 5(a) (enacting RCRA § 30 7 1(c)), 126 CONG. REC. H9,459 (daily ed. Sept. 23, 1980). 42. H.R. 7020, 96th Cong., 2d Sess. § 5(a) (enacting RCRA §§ 3041(a)(2)(B)(i)- 3041(a)(2)(B)(iii)), 126 CONG. REC. H9,455 (daily ed. Sept. 23, 1980). 43. 125 CONG. REC. S9,172 (daily ed. July 11, 1979). 44. Hazardous and Toxic Waste Disposal, Part 4: Hearings on S. 1480 Before the Subcomm. on Environmental Pollution of the Senate Comm. on Environment and Public Works, 96th Cong., Ist Sess. (1979). Superfund Legislative History designation (but not the bill reported by the Committee) was ulti- mately considered by the Senate on November 24, 1980. It is not insignificant that the national election which changed the composi- tion of the Congress took place on November 4, 1980. As reported out by the Senate Finance Committee, S. 1480 would create an ambit of liability significantly larger than that un- der H.R. 7020. Unlike the House-passed measure, S. 1480 would provide for liability for personal injury. Other distinctions, while perhaps less dramatic, were of equal importance. Transporters of hazardous wastes could be liable for releases under S. 1480, but not under H.R. 7020. Moreover, such third parties would be jointly and severally liable under S. 1480; under the House mea- sure, their responsibility for damages would be apportionable. A. The Committee Report S. 1480, as it emerged from the Committee on Environment and Public Works, and as described and analyzed in the report of that committee,45 was indubitably the most far-reaching of the Superfund bills. The committee report contains a rather thorough description of the hazardous waste problem. The report comments on the growth of the chemical industry, the problems of spills and other releases, the dangers of improperly maintained waste sites, and causal links to the increase in the incidence of cancer. It relies on documented EPA reports of thousands of incidents involving hazardous sub- stances. 46 It also recalls the three major pre-Love Canal incidents that came to national attention-the kepone contamination of the James River, the PCB (polychlorinated biphenyl) contamination of the Hudson River, and the contamination of Michigan livestock by the ingestion of PBBs (polybrominated biphenyls). 47 It cites an ex- pert opinion that these wastes put practically the entire United States population at risk of illness or injury. The report also pays particular attention to Love Canal. It quotes a detailed account of the sequence of events there. 48 More impor- tantly, S. 1480 is the only bill which would have compensated the 45. S. REP. No. 848, 96th Cong., 2d Sess. (1980) [hereinafter cited as SENATE REPORT]. 46. Id. at 6. 47. Id. at 7. 48. Id. at 8-10. 1982) COLUMBIA JOURNAL OF ENVIRONMENTAL LAW Love Canal victims for their medical costs. Although all other committee reports mention Love Canal, the bills they reported did not address the issue. The report points out that existing legislation confers inadequate authority to handle problems of cleanup and remedial action. Com- pounding this problem are a shortage of cleanup resources and in- sufficient legal remedies for collecting-from owners of abandoned or inactive hazardous waste sites. 49 The report states that the bill's purpose is not to replace other laws but to implement them, and to enable the government to clean up first and to recover the costs later. 50 Finding that state laws generally lack adequate mechanisms to redress toxic substances-related harms, the report notes that the bill would es- tablish strict liability, and that it would place the burden of redress for health and environmental costs on the industry most benefited by the substances. 5 1 The report justifies the establishment of a substantial trust fund by reference to earlier, similar funds for other special purposes. With respect to financing the cleanup, the Committee concluded that the chemical industry, with its vast earnings, would be able to internalize these costs. 52 B. Major Provisions The committee report summed up the five basic elements of the bill as follows: [flirst, assuring that those responsible for any damage, environ- mental harm, or injury from chemical poisons bear the costs of their actions; Second, providing a fund to finance response action where a liable party does not clean up, cannot be found, or cannot pay the costs of cleanup and compensation; Third, basing the fund primarily on contributions from those who have been generically associated with such problems in the past and who today profit from products and services associated with such substances; Fourth, providing ample Federal response authority to help clean up hazardous chemical disasters; and 49. Id. at 10-12. 50. Id. at 12. 51. Id. at 13-15. 52. Id. at 19, 21-22. 1982] Superfund Legislative History Fifth, providing adequate compensation to those who have suffered economic, health, or other damages. 53 1. Definitions S. 1480 designated the covered hazardous substances by refer- ence54 to the substances listed as hazardous under sections 3075 and 31156 of the Clean Water Act ("CWA"),57 section 11258 of the Clean Air Act ("CAA"),59 Subtitle C of RCRA, and section 760 of the Toxic Substances Control Act ("TSCA"),61 and also by a generic definition of hazardous substance.6 2 2. Scope of Liability The report relies on the common law of ultrahazardous activities to justify the imposition of strict liability.6 3 Liability is imposed on owners and operators of vessels or facilities as well as on trans- porters of hazardous wastes, and the bill expressly provides that a person cannot contract away his liability. 64 Strict liability is pro- vided,6 5 with defenses available only for acts of God or acts of war. Liability extends to costs of removal and remedial measures, and for "damages for economic loss or loss due to personal injury or loss of natural resources resulting from such a discharge, release, or disposal [of a hazardous substance]." 66 53. Id. at 13. 54. S. 1480, 96th Cong., 2d Sess. §§ 2(b)(13)(A), 2(b)(13)(B), 2(b)(13)(C), 2(b)(13)(D), 2(b)(13)(E), 126 CONG. REC. S14,938 (daily ed. Nov. 24, 1980). 55. 33 U.S.C. § 1317 (1976 & Supp. 1 1977). 56. 33 U.S.C. § 1321 (1976 & Supp. 1 1977 & Supp. 11 1978). 57. 33 U.S.C. §§ 1251-1376 (1976 & Supp. 1 1977 & Supp. 11 1978). 58. 42 U.S.C. § 7412 (Supp. 1 1977 & Supp. 11 1978). 59. 42 U.S.C. §§ 7401-7642 (Supp. 1 1977 & Supp. 11 1978). 60. 15 U.S.C. § 2606 (1976). 61. 15 U.S.C. §§ 2601-2629 (1976). 62. S. 1480, 96th Cong., 2d Sess. § 2(b)(13)(G), 126 CONG. REC. S14,938 (daily ed. Nov. 24, 1980). 63. SENATE REPORT, supra note 45, at 33. See S. 1480, 96th Cong., 2d Sess. § 4(a), 126 CONG. REC. S14,940 (daily ed. Nov. 24, 1980). 64. S. 1480, 96th Cong., 2d Sess. § 4(a), 126 CONG. REC. S14,940 (daily ed. Nov. 24, 1980). 65. Id. 66. S. 1480, 96th Cong., 2d Sess. §§ 4(a)(1), 4(a)(2), 126 CONG. REc. S14,940 (daily ed. Nov. 24, 1980). COLUMBIA JOURNAL OF ENVIRONMENTAL LAW The post-closure liability provisions6 7 of S. 1480, which provide for assumption by a federally administered trust fund of the costs of cleanup which may occur after a site is closed, were followed in section 107(k)68 of the Act. The fund's post-closure liability de- pends on compliance by the owner or operator with the closure re- quirements of regulations promulgated under Subtitle C of RCRA.19 The liability provisions would apply to exposures on or after Jan- uary 1, 1977, so as to provide coverage for certain disasters occurring before the effective date of the legislation such as Love Canal. 70 Section 4(f)(1) of the bill would provide for a modified scheme of joint and several liability, including a system of contribution after the amount for which a party was held jointly and severally liable has been determined. Specific rules of contribution are stated. 71 Special provision is also made for proof and presumption relating to medical expense causation. 72 The bill contains a number of express exclusions or exemptions. A special exclusion for claims on the Fund is made for the normal results of field application of pesticides in accordance with their normal purpose. 73 An exclusion which is also reflected in the other bills, and forms a major element of the Superfund legislation as ac- tually enacted, is the exemption of "federally permitted releases" under the CAA, 74 CWA, 75 RCRA, 76 the Atomic Energy Act 67. S. 1480, 96th Cong., 2d Sess. §§ 4(j), 5(k), 126 CONG. REc. S14,941, S14,944 (daily ed. Nov. 24, f980). 68. Pub. L. No. 96-510, § 107(k), 94 Stat. 2981 (1980) (to be codified at 42 U.S.C. § 9607(k)). 69. Id. 70. S. 1480, 96th Cong., 2d Sess. § 4(n)(2 ), 126 CONG. REC. S14,942 (daily ed. Nov. 24, 1980); SENATE REPORT, supra note 45, at 37. 71. 126 CONG. REC. S14,941 (daily ed. Nov. 24, 1980). 72. S. 1480, 96th Cong., 2d Sess. §§ 4(c)(1), 4(c)( 3 ), 126 CONG. REC. S14,941 (daily ed. Nov. 24, 1980). 73. S. 1480, 96th Cong., 2d Sess. § 4(k), 126 CONG. REc. S14,941-42 (daily ed. Nov. 24, 1980). 74. 42 U.S.C. §§ 7 4 12 (c)(2), 7418(b) (Supp. 1 1977). These sections deal with ex- emptions in the control of pollution from federal facilities and exemptions from na- tional emission standards. 75. 33 U.S.C. § 1342 (1976 & Supp. 1 1977). This section describes national pollu- tion discharge elimination system permits. 76. 42 U.S.C. § 6961 (1976 & Supp. H 1978). Superfund Legislative History ("AEA"),77 and other statutes.78 The report expressed some unease about the difficulty of drawing lines between permitted releases under the regulations pursuant to sections 311 and 40279 of the CWA80 and the area of prohibited releases under section 4(1) of S. 1480, and placed reliance on the EPA to define these bounda- ries by regulation. 8' 3. Response Mechanism S. 1480 would establish a two-level response mechanism, as does the law finally enacted. "Removal," i.e., immediate cleanup, is the first step. The second is "remedial action," which includes more far-reaching, permanent restoration.8 2 The President would have authority to take the necessary steps under the National Contin- gency Plan. In a provision analogous to one in H.R. 85, S. 1480 originates the requirement of a ten percent state contribution for remedial action.8 3 S. 1480 also would require the preparation of priority lists for remedial actions, setting nationwide priorities with the assistance of the states.8 4 The provision is reflected in section 105(8) of the Act. 85 The use of funds provision in S: 1480 largely follows the liability provisions. The use of funds for research activities such as epidemiologic registration, i.e., the recording of hazardous waste- connected diseases, was also ultimately reflected in the Act. 86 77. 42 U.S.C. §§ 2011-2296 (1976 & Supp. 1 1977 & Supp. 11 1978 & Supp. III 1979). 42 U.S.C. § 2021(f) (1976) grants exemptions in certain cases from federal licensing requirements. 78. S. 1480, 96th Cong., 2d Sess. § 4(1), 126 CONG. REC. S14,942 (daily ed. Nov. 24, 1980). 79. 33 U.S.C. § 1343 (1976). 80. SENATE REPORT, supra note 45, at 47. 81. Id. 82. S. 1480, 96th Cong., 2d Sess. § 3(c), 126 CONG. REC. S14,940 (daily ed. Nov. 24, 1980). 83. S. 1480, 96th Cong., 2d Sess. § 6(a)(2)(A), 126 CONG. REC. S14,945 (daily ed. Nov. 24, 1980). 84. S. 1480, 96th Cong., 2d Sess. § 6(a)(2)(B), 126 CONG. REC. S14,945 (daily ed. Nov. 24, 1980). 85. Pub. L. No. 96-510, § 105(8), 94 Stat. 2779 (1980) (to be codified at 42 U.S.C. § 9605(8)). 86. S. 1480, 96th Cong., 2d Sess. § 6(a)(1), 126 CONG. REc. S14,944-45 (daily ed. Nov. 24, 1980). 1982] COLUMBIA JOURNAL OF ENVIRONMENTAL LAW 4. Financing The Fund would amount to $4.1 billion over six years, including an estimated $150 to $300 million available annually for third-party damages for medical expenses and loss of wages or salary..8 7 The Fund would be financed by fees or excise taxes from the petrochemical, inorganic chemical and oil industries in proportion to their contribution to the annual hazardous waste stream. 88 The financing and- fee structure of the Fund, which was reflected in the Act, was explained in this way: [flinancing the Fund primarily from fees paid by industry is the most equitable and rational method of broadly spreading the costs of past, present and future releases of hazardous substances among all those industrial sectors and consumers who benefit from such substances. The concept of a find financed largely by appropriations was not adopted. A largely appropriated find es- tablishes a precedent adverse to the public interest-it tells pol- luters that the longer it takes for problems to appear, the less re- sponsible they are for paying the consequences of their actions, regardless of the severity of the impacts. Too often the general taxpayer is asked to pick up the bill for problems he did not cre- ate; when costs can be more appropriately allocated to specific economic sectors and consumers, such costs should not be added to the public debt. 89 The specific excises to be imposed under S. 1480 differ from those ultimately imposed in the Act, but there is no explanation in the legislative history why some of the excises were raised and some lowered. The report regards the Post-Closure Liability Fund as a "carrot" to induce compliance, because without compliance owners and op- erators will not receive the benefit of release from further liability. Unlike the Act's provision for a tax of $2.13 per dry weight ton of hazardous waste, S. 1480 would have given the Administrator dis- cretion to set the fee. 90 87. S. 1480, 96th Cong., 2d Sess. § 5(b), 126 CONG. REC. S14,942 (daily ed. Nov. 24, 1980). 88. S. 1480, 96th Cong., 2d Sess. § 5, 126 CONG. REc. S14,942-44 (daily ed. Nov. 24, 1980). See SENATE REPoRT, supra note 45, at 20. 89. SENATE REPORT, su pra note 45, at 72. 90. Compare Pub. L. No. 96-510, § 231(a), 94 Stat. 2803 (1980) (to be codified at I.R.C. § 4681) with S. 1480, 96th Cong., 2d Sess. § 5(k)(2). 126 CONG. REC. S14.944 (daily ed. Nov. 24, 1980). Superfund Legislative History Section 7 of S. 1480, relating to the financial responsibility re- quirement, was followed in section 10891 of the law as enacted. 5. Claims and Damages The claims procedure under S. 1480 differs somewhat from that which ultimately became law, but it also relies on arbitration to dispose of disputed claims. 92 With respect to the assessment of damages for natural resources, S. 1480 provided that the rulemaking process would be jointly carried out by the EPA, the Fish and Wildlife Service, and the Na- tional Oceanic and Atmospheric Administration in cooperation with various state governments. 93 Section 301(c) 94 of the final act pro- vides for such regulations in less detailed form and limits rulemaking by the President, who may act through federal officials as designated by the National Contingency Plan. The provisions for compensation of victims were unique, but far from generous. They were essentially limited to medical expenses, and for 100% of lost wages in the first year following the illness or injury, and 80% for the second year. Claims for damages would have to be brought within three years of the discovery of the loss, and medical expenses would be limited under the bill to expenses incurred within six years of the discovery of the illness or injury. Expert witness fees, health studies and diagnostic examinations would be covered. There was no coverage for pain and suffering.95 C. Views of Committee Members The Senators' supplemental and dissenting views, as expressed in the committee report, indicate the major concerns of members of the Committee. The comments principally dealt with proof of 91. Compare Pub. L. No. 96-510, § 108, 94 Stat. 2785 (1980) (to be codified in 42 U.S.C. § 9608) with S. 1480, 96th Cong., 2d Sess. § 7, 126 CONG. REc. S14,947 (daily ed. Nov. 24, 1980). 92. Compare Pub. L. No. 96-510, § 112, 94 Stat. 2792 (1980) (to be codified in 42 U.S.C. § 9612) with S. 1480, 96th Cong., 2d Sess. §§ 6(b), 6(c), 6(d), 126 CONG. REC. S14,945-46 (daily ed. Nov. 24, 1980). 93. S. 1480, 96th Cong., 2d Sess. § 6(e), 126 CONG. REC. S14,946-47 (daily ed. Nov. 24, 1980). 94. Pub. L. No. 96-510, § 301(c), 94 Stat. 2806 (1980) (to be codified in 42 U.S.C. § 9651(c)). 95. S. 1480, 96th Cong., 2d Sess. §§ 4 (a), 4(c), 4 (n), 126 CONG. REc. S14,940-42 (daily ed. Nov. 24, 1980); see SENATE REPORT, sUpra note 45, at 23. 1982] COLUMBIA JOURNAL OF ENVIRONMENTAL LAW causation of harm, the scope of liability, and the structure of the fee system to fund the law. In his supplemental views, 96 Senator Stafford emphasized the need to alleviate problems of legal proof of medical data relating to casualties and injuries in claims resulting from toxic waste expo- sure. The, minority view of Senator Simpson took issue with the creation of a new "Federal Toxic Tort." 97 Senator Simpson also criticized the fee system as deficient and inequitable. 98 Addition- ally, Senators Domenici, Bentsen and Baker regarded the newly created federal tort and S. 1480's standard for presenting evi- dence as unwarranted federal intrusions into the judicial process. In light of continuing scientific uncertainty, they also objected to coupling a strict liability standard with a new federal cause of ac- tion. They objected also to what they regarded as a retroactive ap- plication of standards. They asserted that the bill would adversely affect American business decisions. They said that, for example, the broad liability provisions would reduce the availability of insur- ance in part also because of joint and several liability. These sena- tors also predicted adverse effects on small business and on the economy generally.99 V. HOUSE CONSIDERATION OF H.R. 7020 The House debate on H.R. 7020 took place with the members' knowledge that a stronger measure-namely S. 1480-was concur- rently being readied in the Senate. Aware that the House bill would ordinarily need to go to conference, opponents tried to weaken it to have a better bargaining position in fighting the stronger provisions of the Senate bill, while proponents sought to get closer to it. As it tunned out, political events intervened. But meanwhile, the House was able to beat back efforts to dilute H.R. 7020. As will be noted, an amendment to shift active responsibility to the states was defeated, as was a move to establish a congres- sional veto over regulations to be promulgated by the EPA under the committee bill. Instead of weakening the federal role, the House acted to reinforce it. The House adopted amendments to limit defenses and *apportionability of liability under a proposed 96. SENATE REPORT, supra note 45, at 108-15. 97. Id. at 117. 98. Id. at 116-18. 99. Id. at 119-22. Superfund Legislative History federal cause of action for releases of hazardous substances. It also approved an amendment to assure that not only inactive sites but also those still in use pursuant to interim permits under section 3005100 of RCRA would be covered by the proposed reporting requirements. The House took up H.R. 7020 on September 23, 1980, under a closed rule which allowed for committee amendments only.' 0 ' The floor manager for the bill was Congressman Florio, chairman of the subcommittee which had earlier worked on the bill. At the start of the debate, Congressman Stockman offered an amendment in the nature of a substitute bill. 10 2 The substitute es- sentially provided a system of federal formula grants for state clean- up and remedial programs for inactive hazardous waste sites. Stockman, in support of his substitute, attacked the broad scope of H.R. 7020 and the excessive discretion it gave to the EPA. He claimed it would make the EPA "the czar over every hazardous waste site in the entire country."' 03 Florio pointed out that the Stockman bill would not meet the documented needs of the coun- try. 10 4 Florio inserted into the record a letter from the National Association of Attorneys General expressing support for H.R. 7020's proposed funding and enforcement powers. 105 Congressman Stockman in effect questioned the need for congressional action and for the expansion of EPA powers, finding no emergency and no overwhelming hazard from toxic wastes. The Stockman substi- tute would commit general funds instead of placing the economic cost of hazardous wastes on industry. 106 Congressman Florio responded that the source for the EPA emergency powers under the bill was section 311 of the CWA. 10 7 Florio pointed out that long-range remedial actions would begin in conformance with the priority list of the 100 worst sites in the na- tion, set on a state-by-state basis. Thus, he asserted, it was wrong for Stockman to say that the bill turned "EPA people loose to go 100, 42 U.S.C. § 6925 (1976 & Supp. 11 1978), as amended by Pub. L. No. 96-482, §§ 10, 11, 94 Stat. 2338 (1980). 101. 126 CONG. REC. H9,437 (daily ed. Sept. 23, 1980). 102. Id. 103. Id. at H9,439. 104. Id. at H9,440. 105. Id. at H9,441-43. 106. Id. at H9,448. 1982] COLUMBIA JOURNAL OF ENVIRONMENTAL LAW dig up everything around the country."' 10 8 The Stockman substitute was defeated. '0 9 Another substitute, offered by Congressman Dannemeyer, would provide for a waste site inventory, studies and establishment of pri- orities; only then would public monies be devoted to assisting the states' cleanup of inactive sites."10 The Dannemeyer substitute was rejected.' 1 ' Congresswoman Schroeder and Congressman Florio held a collo- quy evidently to establish that the bill would treat radium tailing sites as hazardous waste sites for purposes of the Act." 2 A similar colloquy, between Florio and Congresswoman Fenwick, estab- lished that the site of a Catholic rectory in Fenwick's district, sitting on top of radioactive waste materials, would also be covered." 1 3 An amendment by Congressman Dingell, to authorize the EPA Administrator to treat two or more related waste sites as one, was adopted. In his comments, Dingell stressed the need for the law to protect against ground water contamination."14 Also approved, without debate, was an amendment proposed by Congressman Cleveland to include in the list of the 100 priority sites at least one site in each state, designated by the state as presenting the greatest danger. "15 Congressman Gore offered two amendments to the liability portion of the bill." 6 The first was designed to clarify the so-called third-party defense, so as to assure that no third party's interven- tion may effectively be set up as a defense to strict liability where that party is an agent or employee of the responsible party, or where his act or omission occurs in connection with a contractual relationship with the defendant. Congressman Gore emphasized the need for strict liability. He indicated that reference to "due care" in section 3071(a)(1)(C) would have imported a negligence standard, and a defendant could have relieved himself of responsi- 107. Id. at H9,449. 108. Id. 109. Id. 110. Id. at H9,449-51. 111. Id. at H9,452. 112. Id. at H9,453. 113. Id. at H9,454-55. 114. Id. at H9,459-60. See also text accompanying note 194 infra. 115. 126 CONG. Rrc. H9,460-61 (daily ed. Sept. 23, 1980). 116. Id. at H9,461. See 1A F. CRAD, TREATISE ON ENVIRONMENTAL LAW § 4.02[3][b][ii][I], at 4-120 (1981). Superfund Legislative History bility by showing "due care" in selecting a transporter or dis- poser. 117 Gore's second amendment would provide that the defendant must prove apportionability by a preponderance of the evidence to achieve apportionment under section 3071(a)(2)(B). He argued that this was necessary because the section would otherwise perversely encourage all defendants (except insignificant contributors) to ig- nore the burden of proof requirement and "cast their lot with any other defendant under the mandated apportionment formula ... Hence, a major contributor could seek to establish the culpability of other defendant [sic]-although he could not quantify the harm contributed by each-to enlarge the pool of liable parties and thereby reduce each defendant's cost obligation."'"" There was substantial support for the Gore amendments, which were accepted by the floor manager, Congressman Florio. But not everyone was satisfied. Congressman LaFalce, in a reference to the bill's failure to provide personal injury liability, expressed his hope1 19 that in time the Congress would fully recognize the rights of persons hurt by toxic wastes and enact his proposed Federal Toxic Tort Act.120 A more basic dissent was sounded by Congressman Stockman, who regarded the application of strict liability in any incident involving toxic waste as "a terrible distortion of any kind of notions [sic] of justice or equity and any kind of practical notion of how we ought to go about paying up for those sites that need to be cleaned up."1 2 1 The Gore amendments were adopted. 122 An amendment by Congressman Eckhardt was adopted, to make $10 million per fiscal year available for the Secretary of Health and Human Services to conduct studies on the health effects of releases from inactive hazardous waste sites and the hazardous waste sites not operated pursuant to a permit under section 3005(a) of RCRA.12 3 Congressman Eckhardt offered another, related amendment. This 117. 126 CoNG. REc. H9,462 (daily ed. Sept. 23, 1980). 118. Id. at H9,465. 119. Id. at H9,466. 120. H.R. 1049, 96th Cong., 1st Sess. (1979). 121. 126 CONG. REC. H9,466 (daily ed. Sept. 23, 1980). 122. Id. at H9,468. 123. Id. at H9,468-69. See 42 U.S.C. § 6925(a) (1976 & Supp. 11 1978). 1982] COLUMBIA JOURNAL OF ENVIRONMENTAL LAW would require the Administrator to obtain information from "in- terim sites," i.e., hazardous waste sites operating under interim sta- tus pursuant to section 3005(c) of RCRA.124 The amendment would require such sites to provide the same information as is required for inactive sites. Florio noted that the House had already gone on record on this in the conference on the 1980 amendments to RCRA.'2 The amendment was approved.12 6 Congressman Stockman then introduced an amendment to pro- vide for a congressional veto of certain EPA regulations called for under the bill. Stockman said this would prevent the EPA from acting as a "czar" over every site in the country. Opposed by Florio as unnecessary, the amendment was rejected. 127 Such a leg- islative veto did, however, eventually became part of the Act.12 8 The Ways and Means Committee amendments were offered by Chairman Ullman, and were agreed to without debate.12 9 A colloquy, probably prearranged, then followed between Florio and Ullman, to explain the purposes of establishing a Hazardous Waste Response Trust Fund. In substance, they said the Fund would exist to relieve the pressure to increase taxes or invade gen- eral revenues to finance remedial activities. More specifically, it would (1) assure taxpayers that the funds would only be used for the intended purpose and that there would be no surprise tax in- creases; (2) assure that the trust fund would be available for the very purposes which the legislation spells out substantively, and (3) assure the Congress that these special purposes funded out of spe- cial tax receipts would not have to be funded, in the future, out of general revenues. 130 Ullman explained that the limitation on the uses of the Fund would make it more acceptable to industry than a different scheme. The House passed the bill, 351 to 23, with 58 members not voting. 1 31 124. 42 U.S.C. § 6925(c) (1976). 125. Solid Waste Disposal Act Amendments of 1980, Pub. L. No. 96-482, 94 Stat. 2334. 126. 126 CONG. REc. H9,470 (daily ed. Sept. 23, 1980). 127. Id. at H9,470-71. 128. Pub. L. No. 96-510, § 305, 94 Stat. 2809 (1980) (to be codified in 42 U.S.C. § 9655). 129. 126 CONG. REC. H9,477 (daily ed. Sept. 23, 1980). 130. Id. at H9,477-78. 131. Id. at H9,478. Superfund Legislative History VI. SENATE CONSIDERATION OF S. 1480 The Senate moved to the consideration of S. 1480 on November 24, 1980, nearly three weeks after the 1980 national elections. Thus, the actions of the Senate in November and December of 1980 were distinctly the transactions of a lame duck legislature. Faced with the loss of the entire effort, the Senate staged a care- fully (though hurriedly) negotiated scenario, fully orchestrated by the leadership of both parties. As will appear, the bill put forward in the nature of a substitute was in part the result of compromise and in part the result of a rout. The substitute explicitly extended coverage not only to inactive, but also to interim waste sites, a position the House had adopted through amendment of H.R. 7020. In addition, the substitute provided for a limited cleanup of feder- ally permitted releases. On the other hand, express provisions in S. 1480 referring to joint and several liability were deleted in favor of general refer- ences to the preexisting common law and statutory framework. Lia- bility for personal injury and private property loss was eliminated from the bill. The cleanup fund was reduced from $4.1 billion to $1.6 billion. Unlike S. 1480, the compromise established a limited third-party defense for owners and shippers. Third-party liability it- self would be limited. And there was one other major change, the reincarnation of the defeated Stockman amendment to H.R. 7020: Congress would enjoy the power to veto the EPA's regulations im- plementing the bill. The debate began as Senator Robert C. Byrd, the Majority Leader, moved the consideration of S. 1480.132 In response to an inquiry by Senator Morgan, he indicated that debate on S. 1480 should not be lengthy because several senators had spent a great deal of time during the past several days trying to resolve problems associated with the bill. "They have developed a compromise, which I think is supported by a good many Senators on both sides, and there will be other amendments offered," he said. 133 The version of S. 1480 as reported by the Finance Committee was then spread upon the record. 3 4 A great many committee and per- fecting amendments were offered as if S. 1480, as reported by the 132. 126 CoNc. REc. S14,929 (daily ed. Nov. 24, 1980). 133. Id. 134. Id. at S14,930. 19821 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW Committee, were really the business of the chamber. When the formal steps to place S. 1480 before the Senate had taken place, Senator Byrd presented the real business of the day: Mr. President, the Senators who are the principal parties with respect to this bill and who are most knowledgeable concerning the problems attendant thereto have worked diligently over a period of some days and many hours to achieve a compromise solution by way of amendment which is now ready to be offered. The distinguished minority leader and I have discussed the amendment with Mr. Randolph, who is the chairman of the committee; with Mr. Stafford, who is the ranking minority mem- ber of the committee; with Mr. Bradley, who is one of the fore- most among those who are supporters of the effort to legislate in this area during this session; with Mr. Moynihan, who is on the Finance Committee; with Mr. Helms, who is equally interested; and with other Senators. We have come to the conclusion, based on their desire as well as ours to achieve a feasible solution, con- sidering the time constraints and other factors, that Senator Baker and I will cosponsor the amendment that has been worked out and that we will oppose any amendments thereto. I am ready to proceed by the offering of the amendment and to add my name as a cosponsor, and to support the amendment against amendments thereto. The Acting President pro tempore: The minority leader is rec- ognized. Mr. Baker: Mr. President, I thank the majority leader, and I congratulate him on the statement he has just made. I believe that this is a good result. It is an appropriate thing for the Senate to do. I fully expect that the substitute which will be offered shortly, and which I will join in cosponsoring, will be dealt with in the Senate on a favorable basis. I believe it will be agreed to, and it is my hope that this will be done today. 13 At the time, indications were that the leadership would accept only a single amendment, to be offered by Senator Helms of North Carolina. This amendment would place a limit on the amount to be spent under the bill. The Minority Leader, Senator Baker, indi- cated that this too had been agreed upon by both parties. He also indi- cated that, with the exception of that amendment, any other amendment to the bill would be opposed. Senator Baker explained: "[this] compromise is a fragile thing. Indeed, as the majority leader has pointed out, it was the subject of extensive negotiations, 135. Id. at S 14,948. Superfund Legislative History spanning a number of days, and it deals with a very difficult sub- ject." 136 After expressions of appreciation toward the leadership of both parties, Senator Stafford introduced the amendment to S. 1480, which was in fact an entirely new bill. '3 7 The new bill, which bore the designation S. 1480, is the bill which became the Superfund law. The compromise bill was managed on the floor by Senator Randolph, the Chairman of the Committee on Environment and Public Works. Randolph acknowledged that the substitute was dif- ferent from the bill reported from the Committee. But he stressed the great need for the bill and the urgent need for action on the subject. He acknowledged the innovations which the Committee version of S. 1480 had provided, including strict liability, broad federal response authority, the compensation of victims, and the financing of cleanup largely by the industries and consumers who profit from use of the regulated hazardous substances. But he as- serted it had been necessary to settle for less. He said, "[t]hese solutions seemed reasonable. Granted the scope of such legislation was considerable, but the problem is considerable. Now, we also find in these last days before the demise of the 96th Congress, that opposition to such an approach is also considerable. So we speak today of compromise-reasonable compromise."'' 3 8 Chairman Randolph then proceeded to comment on the compro- mises made in the new bill.' 3 9 He noted that strict liability was kept in the compromise by specifying the standard of liability un- der section 311 of the CWA and, nonetheless, deleting any refer- ences to joint and several liability, relying on common law princi- ples to determine when parties should be severally liable. Also deleted was the federal cause of action for medical expenses or 136. Id. 137. Id. at S14,949-62. 138. Id. at S14,964. After introduction of the substitute, Senator Randolph seems to have claimed that the Senate Environment and Public Works Committee sup- ported the substitute: "I do want to say that of the 14 members of our Committee, 11 members voted for the measure and to report it to the Senate. In addition to my- self, they are Senators Bentsen, Burdick, Chaffee, Culver, Domenici, Gravel, Hart, Mitchell, Moynihan and Stafford." However, the statement is ambiguous, since Randolph spoke of a "report" and the named senators plus Randolph are the 11 sen- ators who voted to report out S. 1480 from committee in July, 1980. Compare 126 CONG. REC. S14,962 (daily ed. Nov. 24, 1980) with SENATE REPORT, supra note 45, at 107. 139. 126 CONG. REC. S14,964 (daily ed. Nov. 24, 1980). 19821 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW property or income loss, as well as the special medical causation provisions. The size of the fund (pursuant to the Helms amend- ment) was cut considerably, from $4.1 billion for six years to $1.6 billion for five years. A new third-party defense to liability was added and, in addition, the substitute contained limits on the lia- bility of vessels, trucks, trains and aircraft. He noted, too, that this non-regulatory bill now provided for legislative veto of regulations. Randolph sought to contrast the compromise with H.R. 7020. He termed the House bill too narrow because it dealt only with abandoned hazardous waste sites. The proposed compromise would establish coverage of interim-use as well as abandoned waste sites. On the other hand, a bill to cover only spills of oil and hazardous substances on navigable waters, as embodied in H.R. 85, would also be inadequate. He expressed the view that although oil spills were not included, the compromise did address the broader prob- lem of hazardous waste spills generally. With respect to liability, he stressed that important standards in the committee bill had survived changes in language wrought in the substitute and that the latter did not reflect a rejection of the standards of the earlier bill. The standard of liability was still in- tended to be a standard of strict liability, as provided in section 311140 of the CWA. Randolph noted that references to joint and several liability had been deleted and that the liability of joint tortfeasors would be determined under common law or prior statu- ,tory law. Randolph also drew the Senate's attention to an impor- tant aspect of the substitute, addressed in neither H.R. 85 nor H.R. 7020. The substitute would specifically provide that releases from facilities with existing federal permits would be permitted. Randolph noted that the substitute thus would preserve the appli- cable, federally permitted release provisions of the committee ver- sion of S. 1480. Randolph also noted that section 107(j) of the substitute bill would retain the enforcement provisions of earlier regulatory laws: [plermitted releases have some potential for causing harm in some emergency situations it will be difficult to distinguish be- tween a permitted release and other sources. [sic] The President using the fund, is expressly authorized to respond to problems caused by federally permitted releases. Further, the fund would be available to pay response costs and natural resource damage 140. 33 U.S.C. § 1321 (1976 & Supp. 1 1977 & Supp. 11 1978). Superfund Legislative History covered by this bill. The fund, in recouping such costs, or any private damage actions, must rely on other laws-common law, or Federal or State statutory law-in lieu of the liability provi- sions of § 107. Determinations of exactly what liability stand- ards, defenses, or other rules apply, will be made on a case-by- case basis, pursuant to regimes other than that of this bill.Y Randolph also acknowledged, on behalf of the Committee, the difficulty of marking clearly where the spill response programs of section 311 of the CWA would end and the response programs of this bill begin, as well as where the general discharge and regulatory permit programs of section 402142 of the CWA apply. He noted that the 1978 amendment of the CWA143 and the imple- menting regulations by the EPA144 deal with the problem and would continue in force. Another revision to which Randolph called attention was the change in notification requirements. The committee bill had au- thorized regulations establishing reportable quantities for hazardous substances but had required the reporting of all releases of a haz- ardous substance. The substitute would establish a minimum re- portable quantity of one pound for all hazardous substances, except those already designated under the CWA,145 unless and until super- seded by any regulations issued after the Act's passage. Randolph explained that the statutory designation of reportable quantities would call for immediate reporting of discharges. 146 Randolph also called attention to section 105, which would pro- vide for revision of the existing National Contingency Plan, origi- nally prepared pursuant to section 311 of the CWA. He called spe- cial attention to the requirements that the Plan contain guidance on cost effectiveness 147 and that alternative remedial actions be 141. 126 CONG. REC. S14,964 (daily ed. Nov. 24, 1980). 142. 33 U.S.C. § 1342 (1976 & Supp. I 1977). 143. Pub. L. No. 95-576, § 1(b), 92 Stat. 2467 (amending 33 U.S.C. § 1321 (1976 & Supp. 1 1977)). 144. 40 C.F.R. §§ 112, 114 (1981). 145. See 33 U.S.C. § 1321(a)(14) (1976). 146. 126 CONG. REc. S14,965 (daily ed. Nov. 24, 1980). 147. S. 1480, 96th Cong., 2d Sess. § 105(7) (1980), 126 CONG. REC. S14,952 (daily ed. Nov. 24, 1980). See Pub. L. No. 96-510, § 105(7), 94 Stat. 2779 (1980) (to be codified at 42 U.S.C. § 9605(7)). 1982] COLUMBIA JOURNAL OF ENVIRONMENTAL LAW considered when planning cleanup, actions at a particular site.' 48 He noted that the plan also would mandate the establishment of criteria for the selection of priority sites or suspected sites. These criteria would, of course, be utilized to establish a priority list of sites requiring remedial action.149 Senator Randolph drew further attention to section 106(c) of the Act, requiring the Administrator to develop guidelines for the use of imminent hazard and enforcement authorities embodied in the several major environmental laws. The Superfund legislation is in- tended to complement those laws. 150 Randolph noted that the substitute bill places major responsibil- ity for implementation directly on the President. He declared that this would call for prompt delineation of responsibilities and indica- ted the sponsors' intention that management of the Fund and ad- ministration of the provisions of sections 102 and 103 be the re- sponsibility of the EPA. The collection of taxes and enforcement of the tax structure would be the responsibility of the Treasury De- partment and it was suggested that the present distribution of re- sponsibilities between the EPA and the Coast Guard under the current National Contingency Plan be maintained. The response and remedial action associated with hazardous sites should be im- plemented by the EPA. Concluding, he noted, "[w]e are asking far less than the Committee on Environment and Public Works asked for last July with S. 1480. But we are asking for a chance to show we care and will respond to those who have suffered in the past and those who may suffer in the future." 151 Senator Stafford, the next speaker, called attention to the serious problems of contamination from hazardous substances. He noted these were not just theoretical risks, citing some of the major re- leases of such hazardous substances as PCB, DBCP and TCE. He reminded the Senate of the enormous damage caused by these and other specific substances. 152 148. S. 1480, 96th Cong., 2d Sess. § 105(2) (1980), 126 CONG. REc. S14,952 (daily ed. Nov. 24, 1980). See Pub. L. No. 96-510, § 105(2), 94 Stat. 2779 (1980) (to be codified at 42 U.S.C. § 9605(2)). 149. 126 CoNG. REC. S14,965 (daily ed. Nov. 24, 1980). 150. Id. 151. Id. at S14,966. 152. Id. at S14,966-67. Superfund Legislative History He then addressed the confusion in the minds of some members as to what was deleted from S. 1480 in the drafting of the substi- tute. He listed some of the same items that had already been men- tioned by Chairman Randolph, namely, the elimination of the fed- eral cause of action, including the medical causation and statute of limitations provisions; the elimination of the term "joint and sev- eral liability"; the limitation of the scope of liability, the addition of a third-party defense; and the reduction of the size of the Fund from $4.1 billion for six years to $1.6 billion over five years. Other changes noted included the change of ratio of contribution to 87.5% from industry and 12.5% from the public, as well as the ad- dition of a legislative veto of regulations, which had not been con- tained in any of the earlier bills. Senator Stafford indicated, in conclusion, that there had been great difficulty in getting anything passed in the Superfund area. He said that he realized that some members of the Senate had found S. 1480 too ambitious. While he believed that they were mistaken, he conceded that S. 1480 could not be enacted at this time, but declared that the final Randolph-Stafford compromise could. In effect, he offered the bill as the last hope of this Con- gress to do anything about hazardous waste releases and the prob- lem of hazardous waste sites.15 3 In a further comment, Chairman Randolph stressed the need for the provision of post-closure liability, which indeed was provided in the substitute, as it had been provided in S. 1480.154 The .Helms amendment to provide for the reduction of the Fund was then formally proposed and adopted.1 55 Senator Moynihan then took the floor to comment on the bill.156 He introduced a detailed chronology of the Love Canal events, a gesture which had the quality of futility because nothing in the provisions of the substitute bill would aid the Love Canal victims, though indeed it might prevent other situations of that kind in the future. There followed numerous self-congratulatory comments from a number of senators, calling attention to the bipartisan nature of the compromise. Senator Moynihan stressed that it was a good omen 153. Id. at S14,967-68. 154. Id. at S14,968. 155. Id. at S14,969. 156. Id. 19821 COLUMBIA JOURNAL OF ENV/IRONMENTAL LAW for the future and a sign of continuity despite the change soon to take place in the leadership of the Senate as a result of the elec- tions. 157 Senator Mitchell interrupted to remind the Senate that the sub- stitute was deficient in that it failed to provide for recover , for per- sonal injuries: "[u]nder this bill, if a toxic waste discharge injures both a tree and a person, the tree's owner, if it is a government, can promptly recover from the fund for the cost of repairing dam- age, but the person cannot. In effect, at least as to the superfund, it is all right to kill people, but not trees." 58 Senator Hart inquired as to the coverage of sites containing ra- dium wastes, Senator Stafford responded that if the radium waste sites do not otherwise come within section 170159 of the AEA and are not specified in the Uranium Mill Tailings Act, 60 they would be eligible for funding and remedial action under the provisions of the Superfund bill.161 Senator Humphrey offered an amendment to provide a more rapid sunset for the authority to collect the taxes mandated by this legislation. This authority would, under his amendment, expire two years earlier than under the Stafford-Randolph substitute. Though he later withdrew the amendment, Senator Humphrey took the opportunity to comment on the pressure and rush with which this legislation was being adopted. He noted that the National Associa- tion of Manufacturers had indicated that it was not opposed to the legislation, but that it was dubious about the circumstances in which the legislation was being considered.162 A final substantive issue was raised by Senator Bradley of New Jersey, who stated that New Jersey and several other states have successful statutory state spill funds. 163 These states include Michigan, Florida, California, Maryland and New York. He ex- pressed a concern that preemptive language in the substitute bill might work to slow governmental response to spills of oil and haz- 157. Id. at S14,969-73. 158. Id. at S14,973. 159. 42 U.S.C. § 2210 (1976). 160. Pub. L. No. 95-604, 92 Stat. 3021 (1978) (codified in scattered sections of 42 U.S.C.). 161. 126 CONG. REC. S14,975 (daily ed. Nov. 24, 1980). 162. Id. at S14,978-79. 163. Id. at S14,981. Superfund Legislative History ardous wastes by creating questions as to the force and effect of the state legislation. Chairman Randolph indicated that the purpose of the preemption language was to prohibit states from creating dupli- cate funds to pay damages compensable under this bill. 164 The sponsors did not, he emphasized, intend to preempt a state's abil- ity to collect taxes or fees for other costs associated with releases that are not compensable damages, as defined under the Superfund legislation. He added that nothing in the language or intent of the bill would prohibit a state from responding to a release either un- der an agreement with the Secretary, 165 at the direction of the fed- eral on-scene coordinator, under the National Contingency Plan, or in the absence of a timely response by any other party. Chairman Randolph agreed that it was the intent of the bill that the federal government's cleanup and containment capability be viewed as something of an appeal of last resort, in the absence of any other adequate and timely response. Senator Randolph indicated that where states have collected funds and are indeed collecting funds for various spill response activities, they could continue to use them. "The purpose of this legislation is simply to preempt double taxation of the substances enumerated in the bill, for the purposes of compensation of the covered damage." 1 6 6 To clarify matters, Randolph further stated: there is nothing in this bill that affects the uses to which a State may put the existing cleanup fund. This bill is silent on that sub- ject. Thus a State may, after enactment of this bill, continue to spend its existing funds for any purpose that is lawful under the State law. If, after enactment of this bill, a State continues to pay claims from a State fund, that would not be contrary to any provision of this bill. What this bill does is prohibit a state from requiring any person to contribute to any fund if the purpose of that fund is to compensate for a claim paid for under the provisions of this bill. Thus, the State cannot receive a fee or a tax on a substance if that fee or tax is to go into a fund and the fund is for the pur- pose of paying oil spill damage claims.16 7 164. Id. 165. Although the legislative history is unclear, it is more than likely that Senator Randolph intended to refer to the Adminstrator of the EPA rather than "the Secre- tary." See id. 166. Id. 167. Id. 1982] COLUMBIA JOURNAL OF ENVIRONMENTAL LAW In the course of the proceedings, 168 Senator Heinz introduced an amendment to section 103 of the Internal Revenue Code. The amendment would enable not only end-of-pipe pollution control fa- cilities, but also process changes which resulted in the reduction of pollution, to qualify for tax-exempt financing. The amendment may have been well advised, but its ancillary nature suggests it was in- troduced essentially as a condition of the Senator's and several other senators' support for the Superfind legislation. The Heinz amendment acquired several supporters on the floor of the Senate, but on the threat of Senator Long, the Finance Committee Chair- man, to vote against the entire Superfund bill if the Heinz amend- ment went in, Senator Heinz was persuaded to withdraw it. The prospective new leadership of the Senate agreed to hold hearings on the Heinz measure as early as possible in the new Senate. After approving a number of technical amendments submitted by Senator Stafford, substitution of the bill was approved, 78 to 9, with 12 not voting.169 In a subsequent comment, Senator Helms again stressed what he considered necessary concessions in the Stafford-Randolph com- promise. The Senator expressed his gratification, particularly at the elimination of the joint and several liability in the earlier bill and the deletion of what, in his view, had been a lack of linkage between culpable conduct and financial responsibility. 170 Senator Stafford, in response to questions from Senator Simpson, reasserted that the liability standard under the Randolph-Stafford compromise was still strict liability by reference to section 311 of the CWA. 171 Senator Simpson raised several issues relating to section 107(c)(3). 172 This section would provide for punitive damages in an amount not to exceed three times the amount of any cost incurred by the Fund. Such punitive damages would be awardable against any person who, "without sufficient cause," fails to provide removal or remedial action upon order of the President pursuant to section 104 or section 106. Senator Simpson asked whether an actual or threatened release of a hazardous substance was alone enough to 168. Id. at S14,984-88. 169. Id. at S14,988. 170. Id. at S15,004. 171. Id. at S15,008. 172. Id. Superfund Legislative History justify exercise by the President of his authority under section 106(a) to issue such orders "to protect the public health and wel- fare or environment." In response, Senator Stafford affirmed that the authority of the President to issue such orders would depend on his determination that there is imminent and substantial endangerment. 173 Section 106(c), requiring the publication of guidelines for using emergency response authority, also applies to the President's authority under section 106 to issue orders. Senator Stafford concluded that the defense of "sufficient cause" would be available to a person who, though served with the Presi- dent's order, was not the party responsible under the Act for the release of the hazardous substance. Thus, no punitive damages would be assessed against any person who is not responsible in the first instance for contributing to the release. Senator Stafford added that the President's order must have been valid in order to call for compliance. The President's order must be consistent with the Na- tional Contingency Plan and must, in the President's belief, have been required to protect the public health or welfare or the envi- ronment. Senator Stafford suggested that a detailed examination of the particular facts of the situation would be required to determine whether there had been sufficient cause in a refusal to comply. 174 Since the Superfund legislation was in part a revenue measure, it was necessary to treat it as if it had formally originated in the House. The Senate therefore proceeded to the consideration of H.R. 7020. Motion was made to strike all after the enacting clause and to insert in lieu thereof the language of S. 1480, as amended. Without objection, it was so ordered and, in this amended form, H.R. 7020 was then passed by voice vote, 175 VII. HOUSE ACTION ON H.R. 7020 AS AMENDED BY THE SENATE On December 3, 1980, Congressman Florio moved to suspend the rules and concur in the Senate amendments to H.R. 7020.176 The suspension of the rules was agreed to.. Under a suspension of 173. Id. 174. Id. 175. Id. at S15,009. 176. 126 CONG. REC. H11,773 (daily ed. Dec. 3, 1980). The Senate substitute ap- pears id. at H11,773-86. 1982] COLUMBIA JOURNAL OF ENVIRONMENTAL LAW the rules, bills must be passed as they are received and no amend- ments are possible. Thus, the substitute measure which the Senate had passed was discussed under very limited conditions of debate in the House. Congressmen Florio and Broyhill were to be recog- nized for a total of twenty minutes each. In effect, the House de- bate was a continuation of the Senate scenario. Because of the suspension of the rules and the sweeping impact of the Senate changes, Florio used much of his allotted time to re- assure supporters of the House-passed version of H.R. 7020 that, although their hands were tied, everything would be fine. Broyhill used the occasion to denounce the compromise in the broadest possible terms, calling attention, as well, to the absurdity of deal- ing in such summary fashion with so important and complex a set of amendments. Congressman Florio rose to say that the broad jurisdiction of the Senate Environment and Public Works Committee had permitted it to take the essential elements of the House bills, H.R. 7020 and H.R. 85 (with the exception of the oil title), and combine them in one response fund. 17 7 He explained that the amended Senate bill was nearly identical to the House bill, establishing a $1.6 billion fund over five years, to be used for the payment of response costs, remedial actions, and damages to natural resources caused by re- leases of hazardous substances. Industry taxes would contribute 87.5% of the total fund, while 12.5% would come from general rev- enue. He noted that, as in the original House bill, taxes would be levied on feedstocks, inorganic chemicals and oil. He called atten- tion to other similarities with the House bill. He stressed the ne- cessity of the ten percent state contribution to remedial costs above expenditures of $1 million to assure the future maintenance and availability of permitted disposal facilities. He also referred to certain changes wrought by the Senate, but added that not all of these were substantive. For instance, the lia- bility provisions, though redrafted, remained essentially similar to those of the original House bill. While strict liability was not men- tioned, Congressman Florio assured the members that it was in- deed continued by way of reference to section 311 of the CWA. 178 177. Id. at H11,787. 178. Id. Superfund Legislative History Congressman Florio further noted that the Senate amendments to H.R. 7020 added response authority for hazardous substances which are not hazardous wastes. He noted that in doing this the Senate had expanded the scope of H.R. 7020, incorporating a con- cept of response authority for such hazardous substances from H.R. 85. The Senate version of the bill contains a funding level of $1.6 billion, which is essentially equal to the $1.2 billion level of the original H.R. 7020 plus the $375 million portion of H.R. 85 fund- ing which relates to hazardous substances. In addition to similar funding levels, both the House and Senate Superfund bills con- tained funding authorization for a five-year period.1 79 Florio said the bills had analogous mechanisms for raising reve- nue. The Senate bill, he asserted, was a composite of both House Superfund bills, as the requirement of 87.5% of funds from indus- try tax and 12.5% from general revenues was midway between the figures set by H.R. 7020 and H.R. 85.180 As to the preemption language in the bill, states with successful spill funds could continue to.use such funds to pay for damages not compensable under this bill. Congress would not be preempting the states' collection of taxes or fees for other funds associated with releases.' 8' It was also intended that state spill funds be used to provide for the ten percent state match required under the law. 182 With respect to the scope of the exclusion for "federally per- mitted releases," Florio emphasized that a release pursuant to a permit issued under section 3005 183 of RCRA by a duly authorized state would, under the proposed Act, be considered a "federally permitted release" if the permit meets the federal qualifications. He also noted that subsections E 184 and C 185 of this definition 179. Id. 180. Id. at Hll,787-88. 181. Id. at H11,788. 182. Id. 183. 42 U.S.C. § 6925 (1976 & Supp. 11 1978), as amended by Pub. L. No. 96-482, §§ 10, 11, 94 Stat. 2338 (1980). 184. Pub. L. No. 96-510, § 101(10)(E), 94 Stat. 2768 (1980) (to be codified at 42 U.S.C. § 9601(10)(E)) ("releases in compliance with a legally enforceable final per- mit issued pursuant to section 3005(a) through (d) of the Solid Waste Disposal Act from a hazardous waste treatment, storage, or disposal facility when such permit spe- cifically identifies the hazardous substances and makes such substances subject to a standard of practice, control procedure or bioassay limitation or condition, or other control on the hazardous substances in such releases"). 185. Pub. L. No. 96-510, § 101(10)(G), 94 Stat. 2768 (1980) (to be codified at 42 U.S.C. § 9601(10)(G)) ("any injection of fluids authorized under Federal under- 1982) COLUMBIA JOURNAL OF ENVIRONMENTAL LAW were related with regard to underground injection of hazardous substances, since these may ultimately be regulated either under RCRA or the Safe Drinking Water Act. 18 6 The term "hazardous substance" would include hazardous waste as defined by RCRA, but would not embrace wastes the regulation of which has been suspended by acts of Congress. In adopting the Senate amendment, Florio said the House understood that .such exclusions would be applicable only during the period of suspen- sion. 187 With respect to the reporting requirements of section 203(c) and the location and nature of the wastes contained in disposal sites, Florio sought to cast light on the House's acceptance of the Senate amendment. The House intended, he said, that the EPA Adminis- trator interpret the section so as to collect the maximum amount of relevant information, and still avoid imposing unnecessary and bur- densome requirements. 18 Florio called attention to a number of technical drafting errors. One such error had substantive implications having to do with lim- its on liability. Section 107(c)(2), which provides that limits on lia- bility may be inapplicable in certain circumstances, borrows lan- guage directly from section 311(f)1 9 of the CWA. But the draftsman of the Senate amendment inadvertently reversed the or- der of the terms "willful negligence" and "willful misconduct." The intent of Congress, Florio asserted, was to provide the-same rules for the application of limited liability as provided in the CWA. The inadvertent order reversal was not meant to impart any different meaning than that contained in section 311(f) of the CWA.190 Another clarification had to do with the "dry weight" measure for computing taxes. Under the amended bill, a tax would be levied at the rate of $2.13 per dry weight ton of hazardous waste received at a hazardous waste disposal facility and remaining at such a facility after its closure. The proper computation of dry ground injection control programs or State programs submitted for Federal approval (and not disapproved by the Administrator of the Environmental Protection Agency) pursuant to part C of the Safe Drinking Water Act"). 186. 21 U.S.C. § 349, 42 U.S.C. §§ 201, 300f to 300j-9 (1976 & Supp. 1 1977). 187. 126 CONG. REC. H11,789 (daily ed. Dec. 3, 1980). 188. Id. 189. 33 U.S.C. § 1321(f) (1976 & Supp. 1 1977). 190. 126 CONG. REC. H11,789 (daily ed. Dec. 3, 1980). Superfund Legislative History weight, Florio said, would involve omitting from the calculation the weight of any water in any hazardous waste subjected to the tax. 191 Florio commented generally that this was a good bill which filled a legislative void. He agreed that the bill was not perfect, but as- serted that it was the best that could be achieved at this time. Congressman Broyhill, the floor leader for the opposition, raised numerous objections to the bill. In his wide-ranging assault on the compromise, Congressman Broyhill touched on provisions concern- ing reporting, spending, evidence, damages, and executive discre- tion, as well as other elements of the package. Broyhill declared that the bill failed to clarify the relationship between itself and the CWA and the CAA. 192 He also objected to the reportable one pound standard of release, familar under the 1978 amendment' 93 to section 311 of the CWA, which, in his view, gives inadequate compliance and enforcement guidance. 194 He also called attention to what appeared to him to be defects in the preemption provisions of the bill.195 With respect to section 301(e), which would mandate a study of the adequacy of existing common law and statutory remedies, Broyhill felt other organizations be- sides the American Bar Association, the American Law Institute, the Association of American Trial Lawyers and the National Associ- ation of State Attorneys General should be involved. In his view, the Senate "put the fox in the hen house."' 96 The proposed Agency for Toxic Substance and Disease Registry, which the substitute would bring into being, 197 appeared likely, in Broyhill's view, to duplicate what the Center for Disease Control was already doing. He objected to the section which would make the government's quantification of natural resources damage a re- buttable presumption. This, to Broyhill, would mark a major change in common law. He also objected to treble punitive dam- ages as unreasonable. He called into question the additional paper- work which many of the provisions of the bill would require. He 191. id. 192. Id. at H 11,790. 193. Pub. L. No. 95-576, § 1(b), 92 Stat. 2467. 194. 126 CONC. RE C. H11,790 (daily ed. Dec. 3, 1980). See 1 F. GRAD, TREATISE ON Environmental Law § 3.03[8], at 3-158.16(1) (1981). 195. 126 CONG. REC. H11,790 (daily ed. Dec. 3, 1980). 196. Id. 197. Id. 1982] COLUMBIA JOURNAL OF ENVIRONMENTAL LAW objected to the unfettered discretion which, in his view, had been granted to the President to take action and issue orders as deemed necessary to protect public health and welfare and the environ- ment. In his view, the different statutory liability limits would dis- criminate against different transportation modes. Moreover, there would be unlimited spending authority for the EPA and other fed- eral agencies, as he saw it. The bill also would create a new tax and a new "bottomless trust fund."1 98- He also asserted that changes in the proposed substitute affecting the liability of vessels would conflict with the United States' assertions of maritime juris- diction and would cause foreign policy problems if foreign vessels became subject to punitive damages. 199 Calling attention to many technical flaws in the "hurriedly drafted" bill, Congressman Broyhill declared his distaste for legis- lating in this "flawed" manner. 200 . Comments from various members of the House, either in sup- port of or in opposition to the bill, followed the path set by the legislative leaders. 20 1 Opponents of the bill stressed that it contained many substantive defects. A recurring theme was the absence of any action on oil spills through abandonment of the contents of H.R. 85. Many supporters of the bill conceded that it was seriously flawed, but asserted that it was the best that could be gotten. Con- gressman Biaggi, for instance, objected to having a bill on a take it- or-leave it basis and referred to this as a perversion of the legisla- tive process, but indicated that, on balance, he would vote for it any- way. Still others took the position that the bill was needed to deal with midnight dumpers in their areas and that something had to be done immediately. In effect, many supporters of the bill saw this as a final opportunity to get some resolution of the issues, even if im- perfect, for fear that to wait for the next session of Congress might well bring them even less. When the Speaker finally brought the debate to a close, the House approved the bill. The vote was 274 in favor, 94 against and 64 not voting.202 198. id. 199. Id. at H11,790-91. 200. Id. at H11,790. 201. Id. at H11,791-802. 202. Id. at H11,802. Superfund Legislative History On December 9, 1980, the bill was presented to President Carter. He signed it on December 11, 1980, and the measure was marked as Public Law No. 96-510. VIII. CONCLUSIONS AND PROSPECTS It should be noted that the congressional committees which worked on the Superfund legislation were the same committees which worked on the 1980 amendments 20 3 to RCRA. As part of the legislative background, it must be realized that the passage of the Superfund legislation reflected some of the self-same concerns which the renewal authorizations under RCRA had presented to the congressional committees immediately prior to the considera- tion of H.R. 7020. In a sense, the two legislative enactments are continuous and should be read in this fashion. It should be noted, too, that H.R. 7020 was initially introduced as an amendment to RCRA. 204 Thus, the Superfund legislation must be viewed as logi- cally connected and continuous with the regulation of hazardous waste disposal sites under Subtitle C of RCRA. The two laws are clearly in pari materia, and the continuous na- ture of the regulatory concern is evident. Both the renewed RCRA-particularly Subtitle C on hazardous wastes-and CERCLA are addressed to generators of hazardous wastes, and to owners and operators of disposal sites. RCRA Subtitle C regulates the disposal of hazardous wastes, seeking to prevent the future occurrence of spills and other dissemination of hazardous substances into the en- vironment. Thus, if Subtitle C and the manifest system of controls are properly enforced, few Love Canals should result from cur- rently established waste sites, and current regulations provide stringent standards for the location of such hazardous waste dis- posal sites. 20 5 The 1980 amendments to RCRA also created a new section 3013206 which authorizes the Administrator to require con- tinuous monitoring, testing and analysis of ongoing disposal sites as well as of sites not currently in operation. CERCLA picks up 203. Solid Waste Disposal Act Amendments of 1980, Pub. L. No. 96-482, 94 Stat. 2334. 204. H.R. REP. No. 1016, PT. I, 96th Cong., 2d Sess. 1 (1980). 205. 40 C.F.R. § 264.18 (1981). 206. Pub. L. No. 96-482, § 17(a), 94 Stat. 2344 (1980) (to be codified at 42 U.S.C. § 6934). See 1A F. GRA.D, TREATISE ON ENVIRONMENTAL LAW § 4.02, at 4-99, 4-100 (1981). 1982] COLUMBIA JOURNAL OF ENVIRONMENTAL LAW where RCRA leaves off, i.e., when untoward emergencies occur, or when spills occur at current or no longer active sites, 207 and by making provisions for protection after a site has been closed. The Post-Closure Tax and Liability Trust Fund208 established by CERCLA provides for the liability of hazardous waste facilities after they are closed,20 9 and for the use of the finds by the Presi- dent for claims relating to release of a hazardous substance from closed hazardous waste disposal facilities.210 Under RCRA, the EPA has by regulation imposed extensive fi- nancial requirements on owners and operators for the maintenance of hazardous waste sites, to provide funds to assure that such sites will be closed properly, and to provide the means for adequate post-closure monitoring and maintenance.21' The financial respon- sibility regulations under RCRA were adopted about four weeks after the enactment of the Superfund legislation, but the two schemes are not discontinuous. Section 107(k)2 12 of CERCLA clearly provides that the owner's or operator's liability for a facility which has received a permit under Subtitle C of RCRA is to be transferred and assumed by the post-closure liability fund only if the facility has been properly closed in accordance with RCRA re- quirements and has been monitored for five years after closure so as to demonstrate that there is no substantial likelihood of off-site migration or release of hazardous substances to endanger the pub- lic health and welfare. In a sense, the effective future operation of CERCLA depends on the continuing enforcement of the hazardous waste provisions in Subtitle C of RCRA.213 207. Pub. L. No. 96-510, § 107, 94 Stat. 2781 (1980) (to be codified at 42 U.S.C. § 9607). 208. Pub. L. No. 96-510, § 232, 94 Stat. 2804 (1980) (to be codified at 42 U.S.C. § 9641). 209. Pub. L. No. 96-510, § 107(k), 94 Stat. 2781 (1980) (to be codified at 42 U.S.C. § 9607(k)). 210. Pub. L. No. 96-510, § 111, 94 Stat. 2788 (1980) (to be codified at 42 U.S.C. § 9611). 211. 40 C.F.R. §§ 264.140-.151 (1981). 212. Pub. L. No. 96-510, § 107(k), 94 Stat. 2781 (1980) (to be codified at 42 U.S.C. § 9607(k)). 213. See F. GRAD, TREATISE ON ENVIRONMENTAL LAW § 4.02[3][b][ii][K], at 4-208 (1981).