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Statements on Introduced Bills and Joint Resolutions

Location: Washington, DC



By Ms. CANTWELL (for herself, Mrs. Boxer, and Mr. Jeffords):

S. 3515. A bill to amend title II, United States Code, to ensure that liable entities meet environmental cleanup obligations, and for other purposes; to the Committee on Environment and Public Works.

Ms. CANTWELL. Mr. President, the Wall Street Journal recently reported on a growing phenomenon across the West--towns and cities are struggling to ensure cleanup from decades of environmental contamination on properties formally owned by Asarco, LLC.

For over a century, Asarco mined, smelted, and refined metals at sites across the country, leaving behind a legacy of lead, arsenic, and cadmium contamination in more than 90 sites in 22 Western States. But when Asarco filed for bankruptcy in August 2005 suddenly it became unclear if these contaminated sites would ever get cleaned up. Asarco's outrageous legacy of environmental pollution stretches from Helena, MT, to El Paso, TX, and is estimated to total $1 billion nationwide. That is money that taxpayers, not the polluting company, may now have to pay.

In my State, Asarco operated a 14-acre site in Everett from the 1800s until 1912, and two sites in Ruston, a 67-acre property and the larger 97-acre Superfund site on Commencement Bay. When Asarco declared bankruptcy last August, the citizens of Washington State were left with a $100 million Superfund mess. In Tacoma and Ruston, Asarco contractors abandoned cleanup projects midway through, leaving piles of contaminated soil sitting in resident's backyards. Although cleanup resumed thanks to emergency removal funds from the Environmental Protection Agency, these funds only go so far and eventually taxpayers may have to bear the brunt of the costs.

I wish I could say that Asarco is just an exceptionally bad actor, but there is evidence that the company's irresponsible practices are more common than we knew.

That is why in October 2002, I asked the Government Accountability Office to examine how corporate polluters might be avoiding their responsibility under existing environmental law. I was pleased to be joined in requesting this study by then Environment and Public Works Chairman Jeffords, Judiciary Chairman Leahy, and Superfund and Waste Management Subcommittee Chairwoman Boxer. The report found that the Environmental Protection Agency has faced significant challenges in holding polluting corporations responsible for their environmental cleanup obligations, partly due to bankruptcy laws that allow companies to avoid future cleanup costs on sites that were damaged in the past.

In many ways this report confirms what I feared back in 2002, and what became starkly evident last August, that corporate polluters are using bankruptcy and other regulatory loopholes to get out of their environmental cleanup obligations. The report has a whole section on how ``businesses can organize and restructure themselves in ways that allow them to limit their expenditures for environmental cleanups.'' Whether it is using the shield of bankruptcy to evade their obligations, or engaging in corporate shell games with foreign subsidiaries, the ``polluter pays'' principle should hold firm.

To quote again from the report, ``As a result of EPA's inaction, the federal treasury continues to be exposed to potentially enormous cleanup costs associated with businesses not currently required to provide financial assurances.''

Fortunately, the GAO provided not only a thorough analysis of the problem but also a set of detailed recommendations on how to tackle these abuses. Based on their recommendations, I authored the Cleanup Assurance and Polluter Accountability Act of 2006, which I am introducing today along with Senator Jeffords, the ranking member of the Environment and Public Works Committee and Senator Boxer, the ranking member of the Environment and Public Works Subcommittee on Superfund and Waste Management.

My bill: Enables the bankruptcy court to examine 10 years of pastÐ transactions--instead of 2 years--between a parent company and its subsidiary for evidence that companies transferred assets to avoid environmental cleanup responsibilities; requires the National Bankruptcy Review Commission to evaluate conflicting goals between the bankruptcy code and environmental laws and to provide recommendations for action to Congress; reasserts and expands upon the 1980 requirement that the Environmental Protection Agency develop financial assurance regulations and ensure that businesses maintain appropriate financial assurances, providing evidence that they're able to pay for cleaning up of environmental damage should it occur; and requires companies subject to financial assurance requirements to report declarations of bankruptcy directly to the EPA with an estimation of environmental damage and an explanation of current and former owners or partners of the facility.

These measures will go a long way toward closing these costly loopholes in our bankruptcy code and protecting tax payers from unjust corporate maneuvering to evade cleanup responsibility at polluted sites.

Communities across the country continue to bear the burden of Asarco's irresponsible behavior. The GAO report confirms that this abuse is not specific to Asarco but is increasingly widespread. It will take many more years to clean up the mess that a few bad actors have left behind. We can't afford to stand by and allow another Asarco to happen. We must not ask the taxpayers to continue footing the bill for others' reckless actions. I look forward to working with my congressional colleagues to enact these protections into law.

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