House Buries Super Fund Bill

Superfund liability relief for small businesses, an issue that's been simmering on the back burner, was thrust forward in the House during the waning days of the fall session. But political tensions boiled over. Although the vote was 253 to 161 for H.R. 5175, the bill was defeated because it failed to get the two-thirds majority required by the parliamentary procedure under which the bill was brought up in September.

The notion of exempting small businesses from Superfund liability had been included in practically every major Superfund bill proposed during the last Congress, including the one that passed the House Transportation and Infrastructure Committee in August 1999. H.R. 5175 was similar in many ways to those amendments, and it also had bipartisan support: 14 Democratic and 20 GOP co-sponsors.

The bill said that small businesses were exempt from Superfund liability if they'd contributed only small amounts of hazardous waste (no more than 110 gallons of liquid or 200 pounds of solid) to a Superfund site, or if they had contributed the equivalent of nonhazardous household or commercial garbage to a site. (A small business was defined as a company with fewer than 100 full-time employees and average annual sales of less than $3 million.)

Those terms made H.R. 5175 nearly identical to the other small-business Superfund amendments that had attracted bipartisan support, except for one new provision: Small businesses could self-certify that they qualified for this exemption. Previous amendments had required businesses to produce records proving they deserved the exemption.

This change angered Democrats, as did the fact that the bill's Republican sponsors brought it to the House floor for a vote 12 days after introducing it, and without consulting the Democrats beforehand. Republicans countered that they had consulted with the Environmental Protection Agency (EPA) and made changes in response to EPA suggestions (although not enough changes to win the EPA's support). In the end, the bill was also opposed by environmental groups and even The Business Roundtable, the trade association representing Fortune 100 companies. Having the Business Roundtable, the EPA and environmental groups on the same side of any issue was "an impossible triple," joked Rep. Ed Markey (D-MA). "That's the 1-7-10 split in bowling."

Unbundling contracts: Congress attempted to clarify federal contract bundling as the last session wound down. For example, the House Small Business Committee passed two bills that would make it more difficult for large federal contracting agencies to exclude small companies from bidding on significant contracts.

The Small Business Competition Preservation Act (H.R. 4945) had passed the House and was awaiting Senate action at press time. It requires the SBA administrator to maintain a database to track the number of small businesses displaced as prime contractors as a result of contract bundling.

The Small Business Contract Equity Act (H.R. 4890) has a few more teeth in it, which probably explains why it passed the House Small Business Committee but hasn't yet been voted on by the full House. The act states that the SBA administrator must approve a federal agency's estimate of savings from a contract bundling before the contract can be let.

The 1997 Small Business Reauthorization Act, which contained some anti-bundling provisions that have been only minimally effective, offers guidance on computing those savings. If the SBA administrator disagrees with the calculation, the bundle must be undone or changes in the solicitation made. The bill also allows the SBA administrator to hold up the contract bill for one year if that particular agency has not met small-business contracting goals.

Stephen Barlas is a freelance business reporter who covers the Washington beat for 15 magazines.