[Senate Hearing 110-1206]
[From the U.S. Government Publishing Office]
S. Hrg. 110-1206
OVERSIGHT HEARING ON THE FEDERAL SUPERFUND PROGRAM'S ACTIVITIES TO
PROTECT PUBLIC HEALTH
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON SUPERFUND AND ENVIRONMENTAL HEALTH
of the
COMMITTEE ON
ENVIRONMENT AND PUBLIC WORKS
UNITED STATES SENATE
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
__________
OCTOBER 17, 2007
__________
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__________
COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
BARBARA BOXER, California, Chairman
MAX BAUCUS, Montana JAMES M. INHOFE, Oklahoma
JOSEPH I. LIEBERMAN, Connecticut JOHN W. WARNER, Virginia
THOMAS R. CARPER, Delaware GEORGE V. VOINOVICH, Ohio
HILLARY RODHAM CLINTON, New York JOHNNY ISAKSON, Georgia
FRANK R. LAUTENBERG, New Jersey DAVID VITTER, Louisiana
BENJAMIN L. CARDIN, Maryland JOHN BARRASSO, Wyoming1
BERNARD SANDERS, Vermont LARRY E. CRAIG, Idaho
AMY KLOBUCHAR, Minnesota LAMAR ALEXANDER, Tennessee
SHELDON WHITEHOUSE, Rhode Island CHRISTOPHER S. BOND, Missouri
Bettina Poirier, Majority Staff Director and Chief Counsel
Andrew Wheeler, Minority Staff Director
----------
1Note: During the 110th Congress, Senator Craig
Thomas, of Wyoming, passed away on June 4, 2007. Senator John
Barrasso, of Wyoming, joined the committee on July 10, 2007.
----------
Subcommittee on Superfund and Environmental Health
HILLARY RODHAM CLINTON, New York, Chairman
MAX BAUCUS, Montana JOHN BARRASSO, Wyoming
FRANK R. LAUTENBERG, New Jersey LARRY CRAIG, Idaho
BENJAMIN L. CARDIN, Maryland DAVID VITTER, Louisiana
BARBARA BOXER, California, (ex JAMES M. INHOFE, Oklahoma, (ex
officio) officio)
C O N T E N T S
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Page
OCTOBER 17, 2007
OPENING STATEMENTS
Clinton, Hon. Hillary Rodham, U.S. Senator from the State of New
York........................................................... 1
Barrasso, Hon. John, U.S. Senator from the State of Wyoming...... 3
Boxer, Hon. Barbara, U.S. Senator from the State of California... 4
Inhofe, Hon. James M., U.S. Senator from the State of Oklahoma... 7
Lautenberg, Hon. Frank, U.S. Senator from the State of New Jersey 10
Craig, Hon. Larry, U.S. Senator from the State of Wyoming........ 41
Cardin, Benjamin L., U.S. Senator from the Stata of Maryland..... 102
WITNESSES
Bodine, Susan Parker, Assistant Administrator, Office of Solid
Waste and Emergency Response, U.S. Environmental Protection
Agency......................................................... 11
Prepared statement........................................... 13
Responses to additional questions from:
Senator Boxer............................................ 19
Senator Inhofe........................................... 25
Steinzor, Rena, Jacob A. France Research Professor of Law,
University of Maryland School of Law; Scholar, Center for
Progressive Reform............................................. 43
Prepared statement........................................... 45
Response to an additional question from Senator Boxer........ 50
Responses to additional questions from Senator Inhofe........ 50
Porter, J. Winston, President, Waste Policy Center............... 50
Prepared statement........................................... 53
Responses to additional questions from Senator Inhofe........ 57
Campbell, Bradley M., Principal, Bradley M. Campbell, LLC........ 58
Prepared statement........................................... 59
Steinberg, Michael, W., Senior Counsel, Morgan, Lewis and Bockius
LLP, and Outside Counsel, Superfund Settlements Project........ 67
Prepared statement........................................... 68
Responses to additional questions from:
Senator Boxer............................................ 74
Senator Inhofe........................................... 76
Siegel, Lenny, Director, Center for Public Environmental
Oversight...................................................... 82
Prepared statement........................................... 83
Responses to additional questions from:
Senator Boxer............................................ 91
Senator Inhofe........................................... 92
ADDITIONAL MATERIAL
Report; The Toll of Superfund Neglect, Toxic Waste Dumps &
Communities at Risk: Rena Steinzor and Margaret Clune.......... 104
OVERSIGHT HEARING ON THE FEDERAL SUPERFUND PROGRAM'S ACTIVITIES TO
PROTECT PUBLIC HEALTH
----------
WEDNESDAY, OCTOBER 17, 2007
U.S. Senate,
Committee on Environment and Public Works,
Subcommittee on Superfund and
Environmental Health,
Washington, DC.
The subcommittee met, pursuant to notice, at 9:34 a.m. in
room 406, Dirksen Senate Office Building, Hon. Hillary Rodham
Clinton (chairman of the subcommittee) presiding.
Present: Senators Clinton, Inhofe, Lautenberg, Craig,
Boxer, Barrasso
OPENING STATEMENT OF HON. HILLARY RODHAM CLINTON,
U.S. SENATOR FROM THE STATE OF NEW YORK
Senator Clinton. The hearing will come to order.
I want to start by welcoming our newest member, Senator
Barrasso, to the Subcommittee. We are delighted to have him. He
is already a Ranking Member. That is a rapid ascent in the
Senate.
I want to thank Chairman Boxer and our full Committee's
Ranking Member, Senator Inhofe, for their support of this
Subcommittee hearing.
I want to thank our witnesses for appearing today.
We will begin with 5 minute opening statements, and then we
will hear testimony from EPA Assistant Administrator Bodine.
The Superfund Program is such an important part of our
environmental protection system in our Country, and I think
this is a very significant opportunity to discuss what it is
doing and what more it could do.
Superfund has its roots in New York. Stemming from the
discovery in 1978 by Niagara Falls resident Lois Gibbs that her
neighborhood, known as Love Canal, had been built on a massive
chemical dump. The effects of that chemical dump had been seen,
but not understood for years. The impact on the people who
lived there was tragic.
Love Canal became a national story and helped spur Congress
to enact the Superfund law, which was signed by President
Carter in December 1980. The Love Canal site was finally taken
off of the Superfund's national priorities list in 2004, but
1,246 sites across the Country remain on the Superfund list
today, including 86 in New York alone.
So as we approach this 30 year anniversary of Love Canal,
the Superfund site remains vitally important because it reminds
us of why we went down this path. The importance is underscored
by a report issued last year by the Center for American
Progress and the Center for Progressive Reform. That report
profiled 50 of the most dangerous sites still on the Superfund
list scattered across 10 States. We will hear more about that
report later in the hearing, but I want to highlight a couple
of its findings.
First, most of the 50 sites are locate in heavily populated
areas. Second, many have been on the list for decades. Third,
they contain a range of highly toxic chemicals such as PCBs,
creosote, lead, arsenic, mercury and TCE. Sixty percent were
located in neighborhoods where households reported median
incomes in the range of $40,000, and some 26 percent were in
the midst of populations comprised of 40 percent or more of
racial or ethnic minorities.
So this is both an environmental health issue and an
environmental justice issue. That is why I am dismayed by the
Bush administration's handling of this program. The number of
cleanups has fallen dramatically from an average of about 75
sites per year from 1993 to 2000, to an average of fewer than
40 sites per year under this Administration. In Fiscal Year
2007, only 24 cleanups were completed.
When we have asked the Administration to explain this sharp
drop in cleanups, they claim it is due to greater complexity of
the sites left to be cleaned. I don't accept that point. But
even if you take it at face value, it raises another important
question. Why won't the Administration, therefore, ask for more
money to get the program back on track to deal with the
allegedly more complex sites? When asked that question, the
Administration has tied itself into knots defending the absurd
position that more money wouldn't help all that much.
They have been extremely secretive about the program,
keeping information from the public and stonewalling this
Committee. Chairman Boxer submitted a series of questions, and
I am delighted that she is here, because she submitted those
questions to the EPA about Superfund 5 months ago. On Monday, 2
days before this oversight hearing, she received a stack of
documents in response. All but three of the documents were
marked privileged. That is just simply unacceptable. What does
the Administration have to hide? I thought we were all in this
together.
I hope we can get beyond this pattern today. For the
Administration to keep repeating mission accomplished about the
Superfund Program doesn't square with reality. There are 11
Superfund sites where human exposure to dangerous levels of
toxic chemicals is not under control. There are 111 of those
sites, because seven of them are in New York alone.
In addition, EPA data indicates there are 160 other sites
where EPA has insufficient information to determine whether
human exposure to these toxic chemicals is under control. I
will be pressing EPA today to explain their plans to get these
sites under control and to explore the reasons for the slowdown
in cleanups.
I think it is clear this program needs additional funding.
I think reinstating the polluter pays fee is a step we must
take, both to provide additional funds for the cleanups and to
make the program fairer. Ordinary taxpayers should not pay for
cleanups, and that is what has been happening at orphan sites
for the last 4 years.
So we have a lot of ground to cover today. I want to turn
now to Ranking Member, Senator Barrasso.
OPENING STATEMENT OF HON. JOHN BARRASSO,
U.S. SENATOR FROM THE STATE OF WYOMING
Senator Barrasso. Thank you very much, Madam Chairman.
Thank you very much for that very kind welcome to the
Subcommittee. I look forward to working with all of the members
and I appreciate you holding this hearing today. I appreciate
the witnesses who are here to testify.
I think that it is important that we engage in constructive
dialog to find solutions to the tough problems that we need to
answer. We have excellent witnesses. I look forward to what all
of them have to say.
There have been successes in the history of the Superfund,
but like any Government-run program, there is always room for
improvement. I am from Casper, Wyoming. It is known as the oil
city, and I will tell you two short stories today. One is about
Casper. In 1913, a refinery opened there. It was actually the
first paved road in that community. The Amoco refinery at its
height had 750 workers. It was on the bank of the Platte River
on 340 acres. In 1991, when it closed, there were smokestacks,
storage tanks, pipes, concrete, aging equipment and it was too
expensive to be in compliance and they merely closed the
refinery. It left behind a mess.
There were about 10 million gallons of oil that went into
the groundwater beneath the refinery, and that is about the
same amount that was leaked in the Exxon Valdez. The oil was
seeping into the Platte River and there was oil sheen on the
riverbank. But together, local leaders, community leaders,
government and an oil conglomerate all worked together. They
came up with a plan. They put a 40 foot high steel wall that
was then sunk into the bedrock along the riverbank. Groundwater
was pumped through a series of filters and a filtering wetland
at the rate of 700 gallons a minute.
From this, they were able to get out a lot of the oil that
was left under this abandoned refinery, 4,000 gallons of oil a
month. They now have a world class golf course. We do in
Casper, Wyoming. Robert Trent Jones, Jr., designed it, the same
designer where they played the President's Cup 2 years ago in
Manassas, VA. There is a restaurant. There are pathways. There
are trees, picnic areas. There are ducks and deer, a few
businesses that are there in offices.
So what the folks have done working together, they have
turned a rust-enclosed polluting eyesore into an economic
development center that is giving us a clean environment. It is
going to take a while to get all of this cleaned up, but as it
continues, this is now useful and economic development and a
tremendous asset for our community. This has become a model for
closed refineries now all around the world.
The second story is about red tape and government
bureaucracy, how it at times prevents innovation from
occurring. I think we need to encourage innovative solutions
and provide a legal framework for that to happen. I think we
have to get away from the philosophy that only the Federal
Government can fix the problem. In Casper, with the refinery,
it was much more than that. It was a cooperative effort.
But sometimes, government programs have unintended
consequences. To that, I want to tell you about my friend Russ
Zimmer. Russ lives in Torrington, WY. He and Ila are still
there today. For many years, he ran the local feed store. He
was a good neighbor, helped out, and volunteered in the
community, always lending a helping hand. Neighbors actually
encouraged him to run for the legislature. He got into the
Wyoming State Senate, and because he was such a good friend and
a neighbor, he became President of the State Senate. But he ran
the feed store.
One day, to help out a lady in the feed store who was
buying some dog food and some feed, she had a check that she
got from turning in her battery to a battery disposal place,
and he didn't want her to have to go to the bank and cash the
check. So he took it as a third party check, signed the check,
and kept it. He forgot about it for many years.
Well, it turns out that the company that the check was
written from ran this battery disposal company, and that
company went bankrupt and there was some pollution that
occurred as a result of the cleanup of the battery business.
When folks went through the records of the defunct company
looking for someone to be held liable for the damage at the
site of the battery disposal business, they found this check
that Russ Zimmer had cashed for the company.
Russ Zimmer, good neighbor, innocent bystander, was named a
potentially responsible party, they call the PRP. Well, for the
common sense people of Wyoming, this was laughable. But yet, it
cost Russ Zimmer nearly $10,000 to deal with his legal
problems. People all around the State of Wyoming are aware of
it because he was the President of the State Senate, and said,
is this the way government should work, this government that
can do all of this to some person who is just trying to be a
good neighbor and helpful? But under joint and several
liability, a person who contributed even a very little can be
held responsible for the entire cost of the cleanup. We need
some common sense in this.
Thank you very much, Madam Chairman.
Senator Clinton. Thank you very much, Senator. We certainly
agree with that. We need common sense everywhere we can find
it. It is not always apparent.
I want to now turn to our Chair of the full Committee, who
is doing a wonderful job, Senator Boxer.
OPENING STATEMENT OF HON. BARBARA BOXER,
U.S. SENATOR FROM THE STATE OF CALIFORNIA
Senator Boxer. Thank you so much, Madam Chair. I am very
proud of this Committee, members on both sides of the aisle.
You have taken your responsibilities very seriously, and as a
result I think we are making progress. I do say to our Ranking
Member of the Subcommittee, welcome.
So I thank Senator Clinton for holding this hearing on the
EPA's management of the Superfund toxic waste cleanup program.
We all know Superfund is a critically important program. It
protects the health and safety of our families. Here is the
point. One in four people in America lives within four miles of
a Superfund site. Let me say that again because people forget.
One in four people in America lives within four miles of a
Superfund site, including 10 million children. Every politician
says our children are our future. Well, if you mean it, then
you have to protect them so they grow up healthy.
Superfund sites are the most contaminated toxic waste sites
in our Country. They are polluted with dangerous toxic
substances including lead, arsenic, mercury, which are known to
cause cancer, birth defects and harm the nervous system.
Superfund was created to address these threats. It is a
landmark environmental bipartisan law.
We made great strides in protecting communities by cleaning
up sites in the 1990's. Unfortunately, in the past several
years, the pace of listing toxic waste sites and of actually
cleaning them up has slowed to a crawl. As we have heard from
Senator Clinton, cleanups have dropped by at least 50 percent,
from 80 sites down to 40. And this year, EPA couldn't even meet
its own goal of cleaning up 40 toxic waste sites. Instead, EPA
now says it expects to clean up 24 sites. That is a drop from
80 cleanups a year to 24, and it is unacceptable not only to
members of this Committee, but it should be unacceptable to the
American people.
Based upon EPA's own documents and studies by outside
experts, EPA is likely failing to list many toxic waste sites
for cleanup that are posing health and environmental risks. The
agency has failed also to quickly address sites at which human
exposure is not under control. There are at least 111 of these
sites, according to data from earlier this year.
In addition, EPA hasn't even collected enough information
to determine whether human exposure is under control at 160
other Superfund sites. These figures are alarming and they are
telling. Senator Clinton, that is why this hearing is so
important. We will get out this message. EPA hasn't even
collected enough information to determine whether human
exposure is under control at 160 other Superfund sites and they
admit that 111 of these sites human exposure is not under
control. More must be done.
In an effort to determine if EPA could do more work with
more money, earlier this year I asked a series of questions
about EPA's management of the program. In the last few days,
EPA delivered a response, a large volume of paper. Could we
just show the volume of paper that we received just in the last
two nights? The vast majority, as Senator Clinton has pointed
out, has been marked privileged.
I again went over the laws that rule whether a document is
in fact privileged and can be kept from the public. The good
news for our Committee is that we can release all this
information. It is up to us. It is at our discretion. Unless
there is a trade secret issue involved in there, or some
national security problem involved, and as far as we know at
this point, none of that is the reason these documents are
marked privileged.
I just want you to know what I intend to do, because I am
not going to do it today because we are going through these
documents. I am going to share these documents with my
colleagues from both sides of the aisle, and then I intend to
make these documents public in accordance with the laws of the
Country and the rules of this Committee.
I have to ask rhetorically, since when does EPA have the
right to withhold important information about toxic waste sites
and cleanup from families whose health may be at risk from
living near those sites? Who is the boss, the people or the
EPA? I say the people. That is what this Country is about. They
deserve to have the truth.
Superfund is one of our landmark environmental laws. It has
resulted in cleanup and it helped to protect the health of
millions of Americans who live near these sites. I will not
stand by, and I know members of this Committee on both sides of
the aisle will not stand by while this crucial environmental
law is undermined and information is kept secret from the
public.
I will work with Senator Clinton to follow up on this
hearing. We will carefully review the large volume of these so-
called privileged information documents that the agency has
provided. I find it appalling that I would get those at the
eleventh hour. If we have to have another hearing, I say to
you, Madam Chair, I am sure you will be available, so we can
let the people know what the truth is. We will get to the
bottom of these issues.
Thank you very much.
[The prepared statement of Senator Boxer follows:]
Statement of Hon. Barbara Boxer, U.S. Senator from the
State of California
I would like to thank Senator Clinton for holding this
hearing on the Environmental Protection Agency's management of
the Superfund toxic waste cleanup program. Superfund is
critically important to protecting the health of children and
families who live in communities across our country.
One in four people in America lives within four miles of a
Superfund site, including 10 million children. Superfund sites
are among the most contaminated toxic waste sites in the
country.
They are polluted with dangerous, toxic substances,
including lead, arsenic, and mercury, which are known to cause
cancer, birth defects, and harm the nervous system.
Superfund was created to address these threats. We made
great strides in protecting communities by cleaning up sites in
the 1990's. Unfortunately, in the past several years the pace
of listing toxic waste sites for cleanup, and of actually
cleaning up these sites, has slowed to nearly a crawl.
As we have heard from Senator Clinton, cleanups have
dropped by at least fifty percent, from 80 waste sites cleaned
up per year down to 40. And, this year, EPA couldn't even meet
its own goal of cleaning up 40 toxic waste sites.
Instead, EPA now says it expects to clean up only 24
sites--that's a drop from 80 cleanups a year down to 24. This
is simply unacceptable.
EPA has also listed far fewer sites for long-term cleanups
under the program. The number of sites listed has dropped from
30 per year to 17 per year--a 56 percent decline.
Based upon EPA's own documents, and studies by outside
experts, EPA is likely failing to list many toxic waste sites
for cleanup that are posing health and environmental risks.
The agency has also failed to quickly address sites at
which human exposure is not under control. There are at least
111 of these sites, according data from earlier this year.
In addition, EPA hasn't even collected enough information
to determine whether human exposure is under control at 160
other Superfund sites. These figures are alarming and telling.
More must be done.
In an effort to determine if EPA could do more work with
more money, earlier this year I asked a series of questions
about EPA's management of the program.
In the last few days EPA delivered a response, a large
volume of paper--the vast majority of which is stamped
``privileged.''
This is unacceptable. I have to ask: since when does EPA
have the right to withhold important information about toxic
waste sites and cleanup from families whose health may be at
risk from living near those sites?
Superfund in one of our landmark environmental laws. It has
resulted in the cleanup and helped to protect the health of
millions of Americans who live near toxic waste sites. It is
the best and clearest example we have of ensuring that
polluters pay for the messes they make, and that the public has
a right to know about the toxic risks they face.
I will not stand by while this crucial environmental law is
undermined. I will work with Senator Clinton to follow up on
this hearing, and will carefully review the large volume of so-
called privileged information the agency has provided. I
anticipate that we will have to hold additional hearings to get
to the bottom of these issues.
Senator Clinton. Thank you very much, Senator Boxer.
Senator Inhofe, thank you for being here.
OPENING STATEMENT OF HON. JAMES M. INHOFE,
U.S. SENATOR FROM THE STATE OF OKLAHOMA
Senator Inhofe. Thank you, Madam Chairman. I appreciate
having this hearing today.
The Superfund program was enacted over 25 years ago to deal
with sites that were endangering the health of citizens and of
the environment.
I also want to say before starting, Administrator Bodine,
you are doing a great job and I appreciate your being here
today.
I am happy to say that for the most part, this program has
been a success. A great number of these sites have been cleaned
up and we have established additional provisions in the law to
guard against the creation of new sites and hold those
accountable for any pollution to our environment.
I anticipate discussion today regarding the pace of
cleanups and the addition of new sites to the national
priorities list. It is important to note that the cleanup rates
from the previous Administration reflected completions of the
simpler, the smaller Superfund sites, or the low-hanging fruit,
as you might say. What we have left today are highly
complicated sites. I know that in Oklahoma I have been
concerned with the progress at Tar Creek Superfund site.
It is very important to understand that, and it happened in
my State of Oklahoma, we have the most devastating Superfund
site anywhere in America. I think there was some competition
for that title, but not anymore. So we are making progress
there.
I have been concerned about the progress at the site, but
over the last few years we have been pleased to see new
collaboration among the Federal and State agencies involved in
this site. Although I know there is still a lot left to be
done, I appreciate your work and the work of the Regional
Administrator Greene down in Dallas-Fort Worth and Region VI
Superfund Director Sam Coleman. Both of them have spent a lot
of quality time personally at this site.
I might add also there is a very simple way of getting this
off of high center. When I was chairing this Committee, we
actually got people from DOJ and DOI and the EPA and the Corps
of Engineers all in one room together. That is unheard of, but
when they did, it is awfully hard to pass the buck from one to
another. So we have made a lot of progress there.
Within Superfund, we have to prioritize, and the protection
of human health first. Once this is done, some sensible
analysis should go into the cleanups of these sites. Cost
considerations should be balanced with future intent of the
land use and the risk of exposure. There needs to be modable
cleanup alternatives considered for each site and this
important decision should be made by high-level EPA officials,
someone who can be held accountable, as opposed to someone who
cannot be held accountable.
In fact, it has been a focus of mine while I was Chairman,
and I will continue to press for accountability of the EPA
regions. All too often, the regions disregard their agency's
own guidance and directives, making decisions that incur
significant long-term costs for the agency without any type of
review. For example, I have been most troubled to learn of the
Federal creosote site in Manville, New Jersey.
In this case, the EPA has acted contrary to its own
guidance and excavated some 450,000 tons of dirt and shipped a
significant portion of it to Canada for incineration.
Amazingly, the decision was made by someone at the EPA to dig
up a shopping mall parking lot and excavate 125,000 tons of
dirt, only to be recovered by another parking lot. For this 50
acre site, the price tag was around $300 million for the
American taxpayers. This type of gold-plated cleanup makes no
sense.
Now, we hear from some that the Superfund tax should be
reinstated because EPA lacks funding for cleanups. First of
all, it is simply not true. But how can this assertion even be
made when we hear such outrageous spending of money, as in the
example that I just talked about. It only takes away the
valuable resources from other sites. That is why I am working
with Majority Leader Harry Reid on this issue, and the two of
us will be requesting the GAO to investigate just how the
Federal creosote site literally grew into a money pit for the
American taxpayers.
Some of my colleagues would like to see the Superfund
corporate tax reinstated. I am strongly opposed to this tax. In
fact, the Chairman made the statement that ordinary taxpayers
should not have to pay for something for which they are not
responsible. That is exactly what this is, this type of a tax.
I have opposed this for quite some time. The tax does not
distinguish the polluter from a company that is an
environmental steward. In fact, when applied, this tax unfairly
targeted the oil and chemical industries, penalizing companies
who had no contact with any Superfund sites. The tax goes where
the money is, not where the responsibility lies. This is not a
targeted tax on polluters. This is an indiscriminate tax on
business.
So the supporters of this tax simply imply that if we do
not reinState the tax, we will not have enough money to clean
up sites. This isn't true. There has never been a correlation
between the amount of money raised by the tax and the dollars
spent on cleanup.
For example, in 1966, the tax fund was at its highest
level, yet the amount spent by that Administration, the Clinton
administration, for Superfund cleanup was at a 10 year low.
While in 2004, the money spent by the Bush administration was
at a 10 year high, while the fund was at a low point.
So I look forward to discussing these critical items during
the course of this hearing. I appreciate your holding this
hearing, Madam Chairman.
[The prepared statement of Senator Inhofe follows:]
Statement of Hon. James M. Inhofe, U.S. Senator from the
State of Oklahoma
Today this Subcommittee will be addressing an important
issue for Americans and that is the cleanup of toxic waste
sites. The Superfund program was enacted over 25 years ago to
deal with sites that were endangering the health of our
citizens and the environment. I am happy to say that for the
most part, this program has been quite a success. A great
number of these sites have been cleaned up and we have
established additional provisions in the law to guard against
the creation of new sites and hold those accountable for any
pollution to our environment.
I anticipate discussion today regarding the pace of
cleanups and the addition of new sites to the National
Priorities List. It is important to note that cleanup rates
from the Clinton administration reflect completions of simpler
and smaller Superfund sites--the low hanging fruit. What are
left today are highly complicated sites. I know that in
Oklahoma, I have been concerned with the progress at the Tar
Creek Superfund site. Over the last few years, I have been
pleased to see a new collaboration among the Federal and State
agencies involved in this site, and although I know there is
still much left to do, I appreciate your work and the work of
Regional Administrator Greene and the Region 6 Superfund
director Sam Coleman.
Within Superfund, we must prioritize the protection of
human health first. Once this is done, some sensible analysis
should go into the cleanups of these sites. Cost considerations
should be balanced with future intent of the land use and risk
of exposure. There needs to be multiple cleanup alternatives
considered for each site and this important decision should be
made by high level EPA officials--someone that can be held
accountable rather than EPA bureaucrats.
In fact, it has been a focus of mine while I was Chairman,
and I will continue to press for accountability of the EPA
regions. All too often the regions disregard their agency's own
guidance and directives, making decisions that incur
significant long term costs for the agency without any type of
review. For example, I have been most troubled to learn of the
Federal Creosote Site in Manville, New Jersey. In this case,
the EPA has acted contrary to its own guidance and excavated
450,000 tons of dirt and shipped a significant portion of it to
Canada for incineration. Amazingly, the decision was made by
someone at the EPA to dig up a shopping mall parking lot and
excavate 125,000 tons of dirt only to be recovered by another
parking lot. And for this 50 acre site, the price tag is around
$300 million dollars for the American tax payers. This type of
``gold plated'' cleanup makes no sense.
We hear from some that the Superfund tax should be
reinstated because EPA lacks funding for cleanups. First of
all, this simply is not true. But how can this assertion even
be made, when we hear of such outrageous spending with the
money that they do have. Irresponsible spending at one site,
like what I just described, only takes away valuable resources
from other sites. That is why I am working with the Majority
Leader Harry Reid on this issue and the two of us will be
requesting the GAO to investigate just how the Federal Creosote
Site literally grew into a money pit for the American
taxpayers.
Some of my colleagues would like to see the Superfund
corporate tax reinstated. I am strongly opposed to this tax as
it is patently unfair. This tax does not distinguish a polluter
from a company that is an environmental steward. In fact, when
applied, this tax unfairly targeted the oil and chemical
industries penalizing companies who had no contact with any
Superfund site. The tax goes where the money is, NOT where the
responsibility lies. This is not a targeted tax on polluters.
This is an indiscriminate tax on business.
Supporters of this tax imply that if we do not reinState
the tax we will not have enough money to clean up sites. This
is not true. There has NEVER been a correlation between the
amount of money raised by the tax and the dollars spent on
cleanup. For example, in 1996 the tax fund was at its highest
level, yet the amount spent by the Clinton administration for
Superfund cleanup was at a 10 year low. While in 2004, the
money spent by the Bush administration was at a 10 year high,
while the fund was at a low point.
I look forward to today's hearing and hope that we discuss
reasonable and fair reforms to the Superfund program.
Senator Clinton. Thank you very much, Senator Inhofe.
Senator Lautenberg.
OPENING STATEMENT OF HON. FRANK LAUTENBERG,
U.S. SENATOR FROM THE STATE OF NEW JERSEY
Senator Lautenberg. Thank you very much, Madam Chairman,
for bringing this to the public discourse, because it is pretty
obvious, as I think we look at the records of what has happened
with Superfund, and we see it being criticized here for an
action her or an action there. My work with Superfund began in
1983 because New Jersey had the most Superfund sites of any
State in the Nation.
I believe in a pretty basic principle. If you dirty it, you
clean it up. Polluters, those responsible, not everyday
taxpayers, ought to pay for the cleanup. Based on their
actions, it appears that the Bush administration doesn't share
this logical view.
I listen very carefully to my friends from the other side.
They talk about low-hanging fruit. Well, low-hanging fruit got
to be very expensive because in my hometown of Montclair, N.J.,
we had over $100 million spent on a single site. That doesn't
sound like very available little fruit when it cost over $100
million.
Now, this is the first Administration to oppose reinstating
the Superfund tax on the oil and chemical industries. Yes, it
is a broad-based tax, but those are the people who created
these sites in the first place. Because of their opposition,
taxpayers are paying to clean up the Nation's worst waste
sites, rather than the industries that created these messes.
When we look at who is paying for it now, we heard
objections to imposing taxes on those who create the mess. But
now it is John Doe taxpayer who is paying this. In Fiscal Year
2005, it cost $1.24 billion. In Fiscal Year 2006, it was the
same thing and in Fiscal Year 2007, $1.260 billion. So it goes
on.
So the taxpayers are paying a heck of a price for the
problems that others created, not to be that way. Cleanups
under this Administration have plummeted from approximately 80
per year to 40. Now, EPA estimates it will only cleanup 24
sites in 2007 and 30 in 2008.
It is unacceptable. Some witnesses on today's second panel
will detail how the Administration's failure on Superfund has
allowed cleanups in my State to languish. There are at least 15
toxic waste sites in New Jersey where people face uncontrolled
exposure to contamination. Many of these sites pollute the
ground and surface water that we rely on for drinking, swimming
and fishing. I am pleased that this Subcommittee is now
conducting real oversight of the way EPA runs the Superfund
program to make sure that it puts public health, not polluter
profits, first.
I look forward to hearing from today's witnesses, in
addition to Ms. Bodine, particularly our witnesses with ties to
my home State of New Jersey. Bradley Campbell is former
Commissioner of New Jersey's Department of Environmental
Protection, and Rena Steinzor is former Staff Counsel to New
Jersey Representative and later Governor Jim Florio. Jim Florio
was one of the authors of the Superfund program in 1980. It was
done in a lame duck session and it was the best thing that came
out of that session. At least we understand the problems we
have. Now, what we have to do is figure out a way to make them
work more efficiently.
So I thank all of the witnesses for being here, Madam
Chairman.
[The prepared statement of Senator Lautenberg follows:]
Statement of Hon. Frank R. Lautenberg, U.S. Senator from the
State of New Jersey
Madam Chairman, thank you for holding today's oversight
hearing on the Superfund program--which the current
Administration continues to neglect.
My work to improve the Superfund program began in 1982. I
got involved because New Jersey had the most Superfund sites of
any State in the Nation.
I believe in a pretty basic principle: Polluters--not
everyday taxpayers--should pay for cleanups.
But based on their actions, it appears that the Bush
administration doesn't share this priority.
This is the first Administration to oppose reinstating the
Superfund tax on the oil and chemical industries.
Because of their opposition, taxpayers are paying to clean
up the nation's worst waste sites, rather than the industries
that created these messes.
Cleanups under this Administration have plummeted from
approximately 80 per year to 40. Now EPA estimates it will only
cleanup 24 sites in 2007--and 30 in 2008.
That's unacceptable.
Some witnesses on today's second panel will detail how the
Administration's failure on Superfund has allowed cleanups in
New Jersey to languish.
There are at least 15 toxic waste sites in New Jersey where
people face uncontrolled exposure to contamination.
Many of these sites pollute the ground and surface water we
rely on for drinking, swimming and fishing.
I am pleased that this Subcommittee is now conducting real
oversight of the way EPA runs the Superfund program, to make
sure it puts public health--not polluter profits--first.
I look forward to hearing from today's witnesses--
particularly our witnesses with ties to my home State of New
Jersey:
Bradley Campbell, former Commissioner of New Jersey's
Department of Environmental Protection; and
Rena Steinzor, a former staff counsel for New Jersey
Representative and Governor Jim Florio.
Thank you both for being here.
Senator Clinton. Thank you very much, Senator Lautenberg.
Now, we will turn to our first witness, Assistant
Administrator, Office of Solid Waste and Emergency Response of
the EPA, Susan Bodine.
STATEMENT OF SUSAN PARKER BODINE, ASSISTANT ADMINISTRATOR,
OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE, U.S.
ENVIRONMENTAL PROTECTION AGENCY
Ms. Bodine. Good morning, Madam Chairman, members of the
Subcommittee. I am Susan Parker Bodine, the Assistant
Administrator of EPA's Office of Solid Waste and Emergency
Response.
Thank you for the opportunity to appear before you today to
talk about EPA's Superfund program and our efforts to protect
human health and the environment from risks posed by toxic
waste sites.
I am going to briefly summarize the progress we are making,
and I ask that my entire written statement be placed in the
record.
Senator Clinton. Without objection.
In December, the Superfund program will be 27 years old.
During these 27 years, there has often been lively debate over
how the program should be managed. But there has always been
agreement on the goal of the program, to protect human health
and the environment. I strongly believe in this goal and I know
that achieving this goal is the deeply held mission of the more
than 3,200 men and women who work in the Superfund program.
I am extremely proud of what they have accomplished. To
date, two-thirds of the sites listed on the national priority
list have had cleanup construction completed. That is 1,030
sites, and 95 percent of the sites have had cleanup work
performed. Our Superfund removal program has conducted more
than 9,400 removal actions at more than 6,900 sites across the
Country to address immediate risks to human health and the
environment.
And just this year, EPA employees made an additional 64
sites ready for reuse by making sure that the cleanup goals
applicable to use of the land are met, and making sure that
institutional controls that are needed are in place so members
of the community don't have to worry that their child's day
care center may have been a thermometer plant or their loft
apartment may have been a former light bulb factory.
We take our responsibility to the communities very
seriously. The Superfund program has over 100 community
involvement coordinators that work at each site with the local
communities to provide information and help empower residents
to become active participants in our Superfund cleanup
decisions. Because we have learned from experience that
involving the community improves the efficiency and the
effectiveness of our cleanup remedies, particularly when we are
getting information about choices with respect to future land
use and with respect to institutional controls.
We have also learned that by working with the community, we
can design a cleanup that will create neighborhood assets. For
example, at the Pacific Sound Resources site in Washington
State, EPA worked with the local community, the State, the Port
of Seattle, and the site owners to develop a cleanup remedy
that not only protected human health and the environment, but
also provided the Port of Seattle with the opportunity to
expand their terminal facility, and it provided the community
with property for a new waterfront park.
Ironically, some of the most spirited criticism of the
Superfund program is a result of over 20 years of progress. The
current managers of the Superfund program are being criticized
for no longer completing the construction of as many sites as
in the 1990's, but that has nothing to do with the management
of the program and everything to do with the fact that over
1,200 sites were listed on the NPL before 1991. Of course, a
large number of these sites completed remedy construction by
2000. In fact, the sites listed before 1991 represent over 900
or 90 percent of our completed sites.
What we are dealing with today are 284 sites that were
listed before 1991 that did not get finished in the 1990's.
That is not because of any mismanagement on the part of the
managers of the Superfund program at that time. It is because
these are difficult sites. Generally, the sites that have been
listed more recently, and this trend began in the 1990's, they
no longer include the small easy sites. Instead, EPA lists
sites that the States can't address under their State programs,
and these tend to be more complex sites, sites with
recalcitrant parties, or orphan sites.
Again, this is a shift that began under my predecessors,
particularly Tim Fields, a good cooperative relationship with
States, and that changes the profile of the sites that we are
dealing with today because, of course, the Superfund process
isn't a 1-year or 2 year process. It goes through a series of
stages.
Now, the sites that are not complete have about 4.3
separate projects per site. While the sites that have been
completed had on average about 1.8 separate projects per site.
Again, if you look at the remaining sites, a large number of
Federal facilities, and a large number are mega-sites, which
are sites that we estimate to cost more than $50 million. In
fact, those two categories together constitute about 40 percent
of our remaining workload.
In addition, we are continuing to do work at the 1,030
sites that are construction complete. We have to make sure that
institutional controls are in place at those sites, and a lot
of them have long-term response actions, particularly
groundwater pump and treat actions that have to be managed.
Now, one of the other criticisms we have heard is failure
to list as many sites on the NPL. I can verify, yes, we no
longer list as many sites as we used to. I already said that
EPA listed more than 1,200 sites before 1991. At the beginning
of the program, we were dealing with 150 years of
industrialization. Since then, the Congress has enacted the
Resource Conservation Recovery Act to deal with hazardous waste
management, preventing creation of new NPL sites.
In addition, States have developed their own cleanup
programs which can deal with the, again, the easier sites, the
ones that are less contaminated. So the fact that we are not
listing more sites on the NPL is not a sign of failure. It is a
sign of success.
I realize I have gone over, so I ask that my complete
statement be in the record.
[The prepared statement of Ms. Bodine follows:]
Statement of Susan Parker Bodine, Assistant Administrator, Office of
Solid Waste and Emergency Response, U.S. Environmental Protection
Agency
Good morning Madame Chairman and Members of the
Subcommittee. I am Susan Parker Bodine, Assistant Administrator
of the U.S. Environmental Protection Agency's Office of Solid
Waste and Emergency Response. Thank you for the opportunity to
appear today to discuss the Superfund program: the significant
progress that has been made, the challenges that remain, and
what EPA is doing to address those challenges.
THE SUPERFUND PROGRAM SUPERFUND PROGRESS
The Superfund program was established under the
Comprehensive Environmental Response, Compensation, and
Liability Act (CERCLA or Superfund), which Congress passed in
December 1980 to respond to concerns over Love Canal and other
hazardous waste sites.
As it approaches its 27th anniversary, the Superfund
program has evolved into a program that is very successful in
protecting human health and the environment. Through fiscal
year 7, remedy construction was complete at 1,030 sites. In
other words, two-thirds of all sites listed on the National
Priorities List (NPL) have had cleanup construction completed
and of the remaining sites not yet completed, the majority of
sites have cleanup work underway. In addition, EPA has
conducted more than 9,400 removals
at more than 6,900 sites to address immediate threats to
human health and the environment. Further, EPA's long-term site
management and post-construction efforts in fiscal year
resulted in an additional 64 sites being made ready for
anticipated use. My testimony will discuss both the process by
which the Superfund program protects human health and the
environment, as well as how the Superfund program has evolved
over the years.
Site Discovery, Screening, and Assessment
The Superfund cleanup process begins with site discovery or
notification to EPA of possible releases of hazardous
substances. Sites are discovered by various parties, including
citizens, but the majority of sites are referred to EPA by
State agencies. Once discovered, sites are pre-screened. A
majority of sites are screened out at this point because they
pose little or no potential threat to human health or the
environment. The remaining sites are entered into the
Comprehensive Environmental Response, Compensation, and
Liability Information System (CERCLIS). Following preliminary
assessment by EPA or its State, Tribal or other Federal
partners, more sites are screened out. After the site
assessment process, only approximately 2 percent of sites
remain to be considered for potential listing on the NPL.
Through fiscal year 7, more than 47,000 sites have been
assessed (both removal and remedial program assessments),
including final remedial assessment decisions at 39,766 sites
(395 in 2007, exceeding our goal of 350). In addition to site
assessment conducted under the Superfund program, more than
1000 sites are assessed each year under EPA's Brownfields
program. EPA assessed 2,139 sites under the Brownfields program
in 2006, the most recent year for which data are
available.
Selection of Cleanup Program
At its inception, the Superfund program was often the only
program available to clean up a toxic waste site. That is no
longer true. Accordingly, following site assessment, EPA and
its State and Tribal partners identify the most appropriate
program to address sites that require cleanup. This may be a
State voluntary or enforcement program; it may be the RCRA
corrective action program; it may be the Superfund removal
program; it may be the Superfund remedial program either as a
Superfund Alternative Site, or by listing on the NPL. Moreover,
sites that meet certain statutory criteria are eligible for
Federal Brownfields assistance.
At sites that are addressed under the Superfund remedial
program, the data developed from site assessment are used to
evaluate a site under the Hazard Ranking System (HRS). Sites
that score above 28.5 under this system are eligible for
listing on the NPL. If listed on the NPL, a site becomes
eligible for remedial funding. To date, EPA has listed 1,569
sites on the NPL. The vast majority of NPL sites (1,211) were
listed before 1991. Fewer sites are considered by EPA for
listing on the NPL than in the early days of the program.
However, that result is not surprising given the development in
the 1990's of other programs, particularly State programs, to
address site cleanup and shows the success of environmental
programs nationwide.
Currently, EPA proposes and finalizes sites on the NPL
twice a year, generally in March and in September. In 2007, EPA
finalized 12 sites on the NPL and proposed 17 sites.
Remedy Selection at NPL Sites
After listing, EPA or responsible parties (including other
Federal agencies) usually need to conduct further investigation
to determine the most appropriate remedy for the site (called
the remedial investigation/feasibility study). Once a remedy
has been selected, EPA or responsible parties with EPA
oversight then design the remedial action.
Remedy selection also has evolved over the years. In 1995,
EPA issued a policy on how the Agency considers reasonably
anticipated uses of the land when selecting a remedy. In
implementing this policy, EPA works with the community,
property owners, and local governments to identify what the
reasonably anticipated use of the property may be. EPA also may
provide funds for community involvement in the remedy selection
process through Technical Assistance Grants.
EPA's community involvement programs help make the
community valuable participants in the remedy selection
process. By listening to the community's needs and concerns,
EPA often is able to tailor remedies to address them. For
example, at the MacAlloy Superfund site in North Charleston,
South Carolina, a residential community was located next to the
industrial facilities that were being remediated. A developer
was interested in redeveloping the site. To help preserve the
community, EPA worked with the responsible party and the
developer on an additional parcel of property that was not
adjacent to the community, relocating industry away from an
existing neighborhood.
Involvement in the remedy selection process also helps the
community understand the tradeoffs associated with different
remedy options and the basis for remedy decisions. For example,
at the Department of Energy's Feed Materials Production Center
in Fernald, OH, the community was originally reluctant to
support any remedy that allowed waste to be left in place.
However, by creating a Fernald Citizens Advisory Board that was
fully engaged in the remedy decision process, the community
came to accept and strongly support the selected remedy, which
pursued a ``balanced approach,'' allowing low-concentration
materials to be contained in an onsite disposal facility,
thereby reducing both the time and cost of cleanup.
To ensure that remedies are cost-effective and are
employing the most recent technologies, in 1996, EPA assembled
a group of experts from both Headquarters and Regional offices
to review the technical merits of high cost remedies.
Currently, the Remedy Review Board reviews all remedies
expected to have costs above $25 million. This review normally
takes place before a remedy is proposed. After a remedy is
proposed and public comment is solicited, the remedy is
documented in a Record of Decision (ROD).
EPA has learned a great deal about how to clean up
contaminated sites over the last 27 years. Beginning in 1996,
EPA established a policy to improve cleanup effectiveness by
reviewing earlier remedies. Through 2006, EPA has updated more
than 700 remedies, improving both remedy effectiveness and
reducing cost.
In particular, EPA has learned a great deal about how to
address groundwater contamination. Originally, EPA installed
groundwater pumping and treatment operations at nearly every
groundwater contamination site. However, over time, the Agency
learned that pumping and treating was not always needed and
that monitored natural attenuation also could achieve
groundwater restoration goals. EPA clarified its policy on
monitored natural attenuation in 1999. This policy
clarification resolved remedy issues at a number of sites and
allowed 42 sites to be considered construction complete between
1999 and 2000. EPA also realized that already installed
groundwater pumping and treating operations were not always
operating as expected. Beginning in 2000, EPA began focusing on
optimizing groundwater remedies. In some cases, optimization
involves adding or moving extraction wells to more effectively
capture the contaminated plume. In other cases, optimization
involves turning off a pumping and treatment operation because
the contamination is naturally attenuating. EPA has optimized
more than 50 Superfund-financed groundwater remedies and
anticipates optimizing at least four more in 2008.
Remedy Construction
Once a remedy design is complete, EPA or the responsible
parties with EPA oversight construct the remedy. In 1993, to
measure interim progress of the Superfund program, EPA began
tracking the number of sites where all remedy construction was
complete. Currently, remedy construction has been completed at
1030 sites (66 percent of the NPL), and is underway at an
additional 318 sites (20 percent of the NPL). A site generally
is considered construction complete when all the remedies at
the site are operational and functional.
At some sites, remedy construction has been underway for a
great deal of time. In fact, of the 535 sites on the NPL where
remedy construction is not complete (an additional four sites
were differed to other programs), 284 have been on the NPL
since before 1991. This does not mean that EPA had been
neglecting these sites. It simply means that some sites present
a greater cleanup challenge than others, often due to the size
or complexity of the sites.
In 1999, as part of a Resources for the Future study of the
Superfund program, EPA characterized non-Federal facility
Superfund sites as either ``mega-sites'' or nonmega-sites. A
mega-site is a site that is expected to cost over $50 million
to remediate. EPA has added this term to its Superfund data
base, to help track the number of mega-sites. To date, 154 non-
Federal facility sites have been identified as actual or
potential non-Federal facility ``mega-sites.'' Of these, 26
achieved construction completion in the 1990's, 30 have
achieved construction completion since 2000.
Sites owned by the Department of Defense or the Department
of Energy also frequently present significant cleanup
challenges. To date, there are 172 Federal Facility sites on
the NPL. Of these, 22 achieved construction completion in the
1990's and 37 achieved construction completion since 2000.
Given the challenges posed by ``mega-sites'' and Federal
facilities, it is not surprising that remedy construction work
remains at many of these sites. To date, of the sites that have
all remedy construction completed, only 11 percent were ``mega-
sites'' or Federal facilities. However, of the 535 NPL sites
with construction work remaining, 39 percent are either ``mega-
sites'' or Federal Facilities.
Addressing Immediate Risks
Although completing remedy construction at large, complex,
sites may take many years, the first step at each site is to
address immediate risks. This is done through the EPA Removal
program. For example, EPA has provided alternative water
supplies to more than 2 million people so they are not drinking
or using contaminated water. To date, the Removal program has
conducted more than 9,400 removals at more than 6,900 sites
(including 413 removals in fiscal year 7). Of these, more than
2,400 have occurred at NPL sites. In fact, EPA has carried out
removal actions at 56 percent of the sites on the NPL,
including 142 removals at NPL sites not yet in the long-term
construction phase. This means that 95 percent of NPL sites
have had either removal or remedial cleanup work. For example,
EPA did not wait to list the Omaha Lead site in Nebraska on the
NPL before taking action to reduce the risk posed to
residential communities. EPA started cleanup work in 1999 using
Superfund Removal authorities. The site was listed on the NPL
in 2003, and using an expedited interim remedy process, EPA has
completed cleanups of more than 3,500 residential yards through
the end of fiscal year 7. Similarly, in 1999, EPA began removal
actions in Libby, Montana. The Libby site was listed in 2002,
and a final remedy has not yet been selected. However, EPA has
been and continues to be actively working in Libby to reduce
asbestos exposure. To date, EPA has carried out removal
activities at 951 properties in and around Libby and has
removed more than 500,000 cubic yards of contaminated soil.
Post-Construction Completion Strategy
With so many sites now at the construction completion
stage, the Superfund program also must focus attention and
resources to address post-construction activities to ensure
that remedies remain protective over the long term and sites
can be returned to productive use.
In October 2005, EPA published its Post Construction
Completion Strategy. The strategy was developed to improve site
operations and maintenance, remedy performance tracking,
institutional control (IC) implementation and tracking, and
reducing barriers to beneficial site reuse. Under this
strategy, EPA is ensuring that 5-year reviews are completed and
any discrepancies identified in the reviews are acted upon. EPA
also is developing an Institutional Control Tracking System to
document and make public the institutional controls that are
needed to ensure long-term protectiveness. Site-specific
information on ICs will be available on the EPA web site,
including contacts to obtain additional information and a link
to the IC instrument.
In fiscal year 7, the Superfund program adopted a new
measure to capture site progress beyond the construction
completion milestone: Site-Wide Ready for Anticipated Use. This
measure tracks the number of NPL sites where the remedy is
constructed (construction complete), cleanup goals for
anticipated uses of the land have been met, and any necessary
institutional controls are in place. EPA exceeded its fiscal
year goal of making 30 Superfund sites ready for anticipated
use by achieving this milestone at 64 sites.
Enforcement
EPA also has been very successful in leveraging Federal
dollars to secure private party cleanups. EPA conducts searches
for responsible parties throughout the response process and
takes action to ensure cleanup work is conducted or paid for by
those responsible parties, rather than by EPA using
appropriated dollars. Potentially responsible parties (PRPs)
have performed work at approximately 70 percent of Superfund
site cleanups.
Since 2001, EPA secured commitments (through fiscal year 6)
from responsible parties to carry out cleanups and reimburse
EPA for past costs worth nearly $6 billion. The cumulative
value of private party cleanup commitments and cost recovery
settlements (through fiscal year 6) is more than $25 billion.
EPA's enforcement efforts have allowed the Agency to focus the
Agency's appropriated funds on sites where responsible parties
cannot be identified or are unable to pay for or conduct the
cleanup.
Superfund enforcement also has evolved over the years. In
the early years of the program, most cleanup work was carried
out by EPA, using appropriated funding and then seeking cost
recovery. To leverage Federal funding and increase the number
of sites being cleaned up, EPA adopted an ``enforcement first''
policy in 1991 to require PRPs to perform cleanups. As a
result, more work is being done with responsible party
resources up front, and EPA therefore needs to recover a
smaller proportion of cleanup costs. PRP resources represent a
greater proportion of cleanup than in the early years of the
program. This includes work carried out by EPA using
responsible party dollars, as well as work carried out by
responsible parties themselves.
In the 1986 amendments to CERCLA, Congress added a
provision which allows EPA to retain and use funds received in
settlement with responsible parties in site-specific accounts.
The principal and any interest earned by these ``special
accounts'' may be used to fund response actions at the site
where the settlement dollars were received.
When the Agency uses funds from a special account it allows
the Agency to use its appropriated funding for cleanup at other
sites were there are no viable or liable parties. To date, EPA
has spent more than $1 billion from special accounts to fund
cleanup actions and anticipates spending millions more to clean
up sites where responsible parties have deposited funds for
site-specific cleanups.
EPA's enforcement tools also have evolved into significant
tools to advance revitalization of Superfund sites, including
encouraging private sector cleanup and development. At the Many
Diversified Interests (``MDI'') site, a 36 acre former foundry
facility listed on the NPL, EPA, working with the site's
Bankruptcy Trustee, developed a proposed administrative
settlement document which the Trustee published along with a
request for bids to purchase the property. The effort to
solicit bids for acquisition was successful, with the
understanding that the winning bidder would undertake the
cleanup remedy selected in EPA's Record of Decision (ROD), and,
in return receive covenants not to sue for existing
contamination. The site was purchased by a developer who agreed
to perform the selected remedy. Today, the site is being
cleaned up and its ultimate use will be development of a town
house community.
Financial Management
EPA is undertaking a number of actions to ensure that
Superfund resources are not expended on unnecessary activities
and are available to carry out site cleanup work. For example,
EPA has:
Initiated a workforce analysis to determine if staff
resources should be reallocated;
Started benchmarking studies of EPA performance;
Shared best practices among the EPA regions;
Aggressively deobligated funds from old contracts,
grants, cooperative agreements and interagency agreements,
resulting in approximately $740 million in additional resources
for the program through fiscal year 6;
Utilized special account resources from PRP settlement
agreements.
These efforts are, in part, a result of several studies,
including an internal review of the Superfund program, known as
the 120-Day Study, which identified opportunities for the
Agency to put its resources to better use.
In addition, to help EPA manage its funding decisions in a
risk-based manner, sites that are ready to begin construction
and will be paid for using EPA's resources are subject to a
rigorous prioritization process. EPA's National Risk-Based
Priority Panel reviews new cleanup construction projects as
they become ready for EPA funding. The panel prioritizes the
projects based on three factors: protection of human health,
protection from significant environmental threats, and
potential threats based upon site conditions at the time of
review. A number of factors are then used to weigh funding
priorities among the sites including: human exposure risk,
contaminant characteristics and stability, significant
environmental risk, and program management considerations. The
panel is composed of national EPA Superfund program experts
from both regional and Headquarters offices. In fiscal year 7,
EPA funded all new cleanup construction projects that were
ready for construction funding.
Public Information
Over the last several years, EPA has greatly expanded the
amount of information available to the general public regarding
Superfund sites. For example, beginning in 2002, to more
accurately reflect the environmental outcomes of the Superfund
program, EPA began tracking the sites where a complete human
exposure pathway to contaminants above levels of concern has
been eliminated, as well as sites where migration of
groundwater contamination has been controlled.
The list of sites where human exposure is not under control
is dynamic. Over time, sites are removed and new sites are
added, depending on changed site conditions or new information.
The Superfund program has made it a priority to improve the
quality of the data supporting this environmental indicator so
that it can be used to prioritize and manage the program. EPA
has posted a description of the exposure scenario on the
Superfund Site Profiles web site, along with actions that are
planned or underway to address the situation. This has been
done to ensure that the public has access to current
information regarding the human exposure status at each
Superfund site that is listed as human exposure not under
control. For each site where the Agency is still gathering data
to make a human exposure decision (i.e., insufficient
information to make a human exposure determination), EPA has
posted on that site the reasons for the insufficient data
determination, along with the actions planned or underway to
gather the necessary data.
In addition to the exposure information described above,
EPA has enhanced the availability of information regarding
Superfund sites in the following ways:
Extensive information about all Superfund sites is
available in site profiles which are typically updated each
month on EPA's web site;
EPA's community involvement coordinators regularly
communicate site information to community members who live near
Superfund sites through public meetings, mailings, and
published notices;
On its Superfund web site, EPA posts Records of Decision
(RODs) and other key decision documents [ROD Amendments,
Explanation of Significant Differences (ESD)] for NPL sites.
More than 3,300 Superfund program documents are currently
available on the web site;
EPA has added information from its Institutional Control
Tracking System to Superfund site profiles. This information
provides the public with the status of a site's institutional
controls (IC), including whether an IC is needed and what
(legal) mechanism(s) will be used to implement the IC;
To reach an even broader audience, EPA has been working
with data providers such as Microsoft, Environmental Systems
Research Institute (ESRI), and Google to develop the necessary
links to allow these companies to access EPA site information
and overlay it on maps and other geospatial displays (such as
Google Earth).
LAND REVITALIZATION
The land revitalization initiative, launched in April 2003,
includes all of EPA's cleanup programs as well as partners at
all levels of government and in the private and non-profit
sectors. The goal of land revitalization is to restore our
nation's contaminated land resources and enable America's
communities to safely return these properties tobeneficial
economic, ecological, and societal uses. EPA is ensuring that
cleanup programs protect public health, welfare, and the
environment and also that the anticipated future uses of these
lands are fully considered in cleanup decisions.
EPA helps facilitate opportunities for integrating cleanup
and reuse. Promoting community-driven site reuse planning and
reuse is another way EPA can help to ensure protective and
sustainable cleanups. EPA has supported privatization efforts
recently undertaken at two Federal facilities on the NPL. At
Department of Defense (DoD) Base Realignment and Closure (BRAC)
sites, EPA recognizes that the privatization of the cleanup,
where a developer or other organization rather than the
military conducts the cleanup, can present an opportunity to
integrate redevelopment planning with cleanup. The first such
privatization occurred on August 27, 2007 at the McClellan Air
Force Base, California. The second is expected to occur later
this fall at Ft. Ord, CA. Privatizing cleanups at closing
military Superfund sites provides another option to Federal and
State agencies and local communities to help maximize cleanup
and redevelopment resources to help move properties back into
productive reuse more quickly.
EMERGENCY RESPONSE
EPA's emergency response activities are another facet of
the Superfund program. The Emergency Response program provides
national leadership to prevent, prepare for, and respond to
human health and environmental emergencies, including terrorist
events. Through FEMA funding, EPA's Emergency Response program
was actively involved in the response to the events of 9/11 and
in the response to Hurricanes Katrina and Rita.
Although EPA was not involved in incidents of that
magnitude this year, EPA's Emergency Response program was
actively involved in responses and cleanups throughout the
country, such as the tornado disaster in Greensburg, KS, and
the Synthron Chemical plant explosion and fire in Morganton,
N.C.
CONCLUSION
The Bush administration is fully committed to Superfund's
mission, protecting human health and the environment by
cleaning up our Nation's worst toxic waste sites. The Superfund
program has produced significant accomplishments and EPA is
continuing its efforts to manage the program efficiently and
effectively in order to protect human health and the
environment, and provide opportunities for reuse and
redevelopment to communities across the country.
------
Responses by Susan Parker Bodine to Additional Questions
from Senator Boxer
Question 1. EPA has slowed or not conducted cleanups due to
funding considerations for several years. Looking at the past 5
fiscal years, how did EPA determine which contaminated sites to
slow down or not cleanup due to funding issues?
Response. I want to assure you of the U.S. Environmental
Protection Agency's (EPA's) continuing commitment to clean up
sites that pose risks to human health and the environment. The
appropriated funding levels for the Superfund program have
remained steady over the past five fiscal years, between $1.2
and $1.3 billion dollars. Moreover, EPA supplements its annual
appropriated funding with resources deobligated from prior
fiscal year contracts, settlements with responsible parties,
and State cost share contributions. There has not been a
significant decrease in Superfund cleanup work. Superfund
construction work has remained relatively steady over the
years; however, work is now concentrated on more costly,
complex sites. While there have been years in the past five
fiscal years that EPA did not fund all of the new site
construction projects ready for construction, we are pleased to
report that in fiscal year 2007, EPA funded all new
construction projects that were ready for funding, therefore,
there is no backlog of unfunded Superfund site construction
projects.
EPA prioritizes funding for Superfund construction projects
in the following manner: the highest priority is given to
funding emergencies which pose immediate threats to human
health or the environment. The next priority is for ongoing
construction actions that have already begun and require
additional resources. Ongoing actions receive a high priority
for funding for several reasons: Once an action is started, the
best management practice is to complete it so contamination is
not left exposed or allowed to re-contaminate an areas; and,
significant additional costs could be incurred if these
projects were to be shut down in the middle of cleanup
construction.
After emergencies and ongoing construction actions are
funded, EPA looks to fund new construction projects. New
construction projects are ranked according to the risk-based
criteria established through EPA's National Risk-Based Priority
Panel evaluation process (http://epa.gov/superfund/programs/
nrbpp/index.htm). In addition, EPA considers the timing of when
a project is ready to begin as well as EPA's goals under the
Government Performance and Results Act.
Question 2. The Government Accountability Office (GAO) in
2007 released an investigation of EPA's public notification
efforts at sites that received asbestos-contaminated material
from Libby, Montana. GAO concluded, ``The extent and
effectiveness of EPA's [public] notification efforts varied
across the 13 states for which EPA had lead responsibility to
conduct cleanups. . . At 8 of the sites, EPA regional offices
did not implement key public-notification provisions of the
NCP. . . [Although EPA's public-notification guidance strongly
emphasizes that meeting NCP provisions is often insufficient to
meet community needs for public notification, EPA officials did
not conduct notification activities beyond those provisions at
4 sites in EPA region 9.'' Two of these four sites are located
in California, in the towns of Glendale and Newark.
Describe why EPA failed to conduct any recommended
notification activities at sites in California, including
Glendale and Honolulu, Hawaii, and Phoenix, Arizona.
Response. EPA did not fail to conduct notification
activities. EPA relies on the discretion afforded in the
National Contingency Plan (NCP) to make case-by-case decisions
on whether to exceed required public notification and outreach
activities. The referenced sites in Glendale CA, Honolulu HA,
and Phoenix AZ, are discussed below.
The sites in California, Hawaii, and Arizona were all
conducted as time critical Responsible Party (RP) lead removals
under an Administrative Order on Consent. The removal actions
were small in scope and in each case the RP was willing to
conduct the response action. The EPA OnScene Coordinator (OSC)
provided Federal oversight and was the designated spokesperson
for the site. The OSC interacted with the industrial site
occupants and owners. A repository for local information was
established at local libraries. An Administrative Record was
established and updated up onsite completion. Public notice was
made at the start of the removal per the NCP when the
Administrative Record was received by the repositories (Region
9 Superfund Records Center and local Library). Also, public
notices were made in the local press (Glendale NewsPress, The
Argus, Honolulu Advertiser and Arizona Business Gazette). A
public comment period was held for 30 days and for each of
these sites no public comments were received. The State Health
Departments were all notified at the time of the site
assessments.
EPA is committed to its mission of protecting human health
and the environment and recognizes that it is important to
communicate with the community and State and local government
officials regarding cleanups in their areas. EPA always strives
to inform the public on human health and environmental impacts
associated with an EPA cleanup activity. EPA is reviewing
carefully the findings of the GAO report and considering the
lessons learned from the responses of State and local
government officials and community focus groups.
Question 3. Explain the reason that EPA rejected each of
the recommended actions at the ten other sites located in
Dearborn, Michigan, Denver, Colorado, Great Falls, Montana,
Hamilton Township, New Jersey, Minneapolis, Minnesota, Minot,
North Dakota, Salt Lake City, Utah (Intermountain Insulation
and Vermiculite Intermountain), and Wilder, Kentucky.
Response. EPA does not believe it rejected actions
recommended in the GAO report. EPA continually strives to
provide the public with early and meaningful opportunities for
involvement in cleanup decisions. In doing so, we comply with
the public outreach requirements under the National Contingency
Plan (NCP).
EPA understands that it is important to communicate with
the community and State and local Government officials
regarding cleanups in their areas. Sections of the National
Contingency Plan (NCP) are specifically designed to allow rapid
action by EPA responders when there is an urgent threat to
human health and the environment. Included in the NCP are
requirements for public notification and outreach.
The ten sites referenced in your question varied greatly in
scope of cleanup which can have a significant impact on the
type and extent of public outreach efforts. For example, the
Great Falls, MT site in Region 8 was a single residence where a
former worker at an exfoliation plant had taken asbestos wastes
and placed them in the driveway. For this site, EPA chose to
meet with State and local officials and with neighbors in the
near vicinity rather than distributing fact sheets and holding
public meetings.
Conversely, the Region 5 site in Minneapolis, MN involved
hundreds of residences where residents had taken home
contaminated ``free crushed rock'' from the exfoliation plant.
Region 5 provided extensive outreach in identifying those
contaminated properties and communicating with hundreds of
potentially affected homeowners. The Dearborn, MI site in
Region 5 which involved sampling of hundreds of homes also
resulted in extensive community outreach. The Hamilton Township
Site in EPA Region 2 is an example where, due to growing public
interest, community outreach was increased after Phase I
activities at the site. The Region prepared and distributed
fact sheets and provided information to residents, businesses,
local and State officials, interested stakeholders and the
press to keep them fully informed of all sampling activities.
In addition, the EPA On-Scene-Coordinators (OSCs) visited many
residents to talk about the ``Off--Site Sampling'' and local
businesses to discuss the Phase II removal action.
Question 4. Describe what steps EPA has taken since the GAO
report was issued to improve its public notification activities
at the sites listed above?
Response. Work at the sites listed above had been completed
prior to the issuance of the GAO report. It should be noted
that these cleanups were all conducted as ``time-critical
removal actions,'' where the threat to public health was
determined to be urgent and cleanups were initiated and
completed quickly. EPA OSCs and, in some cases, Community
Involvement Coordinators remain available to the public to
answer questions onsite actions. EPA may conduct additional
public notification and outreach activities should there be a
need for follow--up site activities.
Question 5. Describe what analysis EPA has done of the
public notification activities at other sites that may have
received asbestos-contaminated material from Libby, Montana.
Please describe the site, type of analysis, and EPA's
conclusion regarding the adequacy of notification.
Response. In response to the multi-phase GAO review leading
to the issuance of the report, ``EPA May Need to Reassess Sites
Receiving Asbestos-Contaminated Ore from Libby, Montana and
Should Improve Its Public Notification Process'' (GAO--08--71),
EPA headquarters and regional offices reviewed available site-
specific information on the GAO list of271 vermiculite sites.
Based on best available information, EPA reviewed GAO data (or
provided data) on facility location, type of facility, tonnages
of venniculite received and EPA actions. The review was helpful
in establishing a current baseline of site activities including
activities at sites not specifically addressed by the GAO
report. For instance, Region 2 visited 24 sites and developed
reference fact sheets documenting EPA activities for each of
these sites. Of these Region 2 sites, only the Hamilton
Township, NJ site investigation resulted in the need for a time
critical removal action. Public notification and outreach
activities at the Hamilton Township, NJ site are well--
documented in the GAO report and supporting regional
submissions. EPA complies with the public notification and
outreach requirements under the National Contingency Plan
(NCP). Should any new sites be identified that require
cleanups, EPA will be diligent to follow all NCP requirements
for public notification.
Question 6. Has EPA conducted additional sampling and
testing using modern methodologies at other sites to determine
if the agency should take additional cleanup actions now,
rather than to wait until after 2010 when the agency is
scheduled to complete studies on asbestos' risk? If so, please
list the sites, the results of the sampling, and any additional
cleanup or notification actions planned by EPA.
Response. Due to the concern for public health risk
associated with asbestos exposure, EPA is not waiting for more
definitive tests on asbestos toxicity to be completed in 2010.
Rather, since empirical data strongly relates asbestos exposure
to increased risk of cancer and plural disease, EPA is
aggressively proceeding with site investigations using
appropriate and best available techniques and science. Further,
EPA is gathering data that, although not currently used in risk
evaluation per the Integrated Risk Information System (IRIS),
may be useful for the updated risk model. Specifically, EPA is
enumerating the full body of asbestos structure size fractions.
Doing so should allow for improved risk calculations.
The Asbestos Committee of the EPA led Technical Review
Workgroup supports and promotes consistent application of the
best science in the field of risk assessment for asbestos at
contaminated sites nationwide. The asbestos committee provides
site consultation in support of regional requests and develops
technical guidance. It has developed a draft guidance document,
``Framework for Investigating Asbestos-Contaminated Superfund
Sites'' currently in draft and undergoing external peer review.
The draft document provides (l) a recommended flexible
framework for investigating and evaluating asbestos
contamination that can be used for removal and remedial actions
within the Superfund program, and (2) detailed recommended
standard operating procedures (SOPs) for collecting data on the
nature and extent of asbestos contamination at Superfund sites.
The draft Framework discusses specific strategies and methods
that are based on the best available science for characterizing
exposure and risk from asbestos. Activities at the below
mentioned sites helped inform development of the draft
Framework.
The following are examples of sites where best available
sampling and testing techniques (e.g., activity-based-sampling)
have been applied or are planned:
N-Forcer (Dearborn, MI): Asbestos was detected at levels
of concern. In 2005 contaminated soil was removed to a depth of
18 inches, an impermeable barrier was installed, and the site
was backfilled to prevent exposure. No additional cleanup or
notification actions are planned.
Vermiculite NW Inc (Spokane, WA): In 2000 and 2001, EPA
determined that there was asbestos contamination in the soil
and that it could become airborne if disturbed. In 2004, EPA
turned the site over to the State of Washington for oversight
of the cleanup activities under the Model Toxics Control Act
Voluntary Cleanup Program. No further actions are planned by
EPA.
Intermountain Insulation (Salt Lake City, UT): EPA
sampling results showed unacceptable levels of asbestos in the
air. EPA completed a removal action at the site in 2004. No
additional actions are planned by EPA.
Vermiculite NW, Inc (Portland, OR): EPA testing showed
unacceptable levels of asbestos in soil and in the former
processing building. The responsible party cleaned the soil and
the building with EPA oversight. No further action is planned.
Big Tex Grain (formerly Texas Vermiculite/WR Grace) San
Antonio, TX: EPA testing indicated unacceptable levels of
asbestos in the soil, in the processing building, and in the
air monitoring onsite. Activity based sampling has started.
Pending the results of the sampling a removal may be done on
the property.
EPA is planning a site assessment at the Zonolite Co/WR
Grace in New Orleans, LA. This site is located at 4729 River
Road and the assessment is planned for the summer of 2008.
Question 7. Does EPA have any plan to conduct additional
sampling and testing at other sites to determine if the agency
should take additional cleanup actions not, rather than waiting
until after 2010 when the agency is scheduled to complete
studies' on asbestos' risks? If so, please describe the plan,
including specific actions, timeline, and anticipated funding
needs.
Response. EPA is not waiting until the results of further
studies to conduct additional sampling and testing, including
possible cleanup activities at sites where asbestos-
contaminated Libby vermiculite may be present. EPA is committed
to protecting communities from hazards associated with asbestos
contamination. EPA agrees that, more sensitive-risk-based
sampling methods have been developed and we have experience
using these methods. We have developed procedures for
conducting activity-based sampling, which allow us to better
measure human exposure. These procedures and a decision making
framework for assessing asbestos--contaminated sites are
described in a draft report titled, ``Framework for
Investigating Asbestos--Contaminated Superfund Sites''.
We agree it would be prudent to take another look at the
completed site assessments to determine whether some of the
previously assessed sites may benefit from a reassessment. EPA
is currently developing a strategy (in Fiscal Year 2008) to
reassess, as necessary, and prioritize these sites.
In addition to the planned activities described in our
answer to question 3A and with regard to sampling and testing
at specific sites--EPA has approved an Action Memorandum to
conduct a time critical removal at a site in Ellwood City, PA.
EPA Region III does not plan to conduct any additional sampling
or testing using activity-based sampling at the site given that
cleanup actions are scheduled to begin in May, 2008.
Question 8. Describe the number of workers potentially
exposed to dangerous levels of asbestos at the 271 sites
described in the 2007 GAO report.
Response. See combined answer for questions 9 and 10 below.
Question 9. Describe the number of people, including the
number of children, who may have been exposed to dangerous
levels of asbestos at the 271 sites described in the 2007 GAO
report.
Response. EPA does not currently have information on
numbers of people who may have been exposed at the 271 sites
described in the GAO report. However, there is an ongoing
project of the Agency for Toxic Substances and Disease Registry
(ATSDR) whic1:l is producing this kind of information for
selected sites. ATSDR is working with other Federal, state, and
local environmental and public health agencies to evaluate
public health impacts at 28 sites that processed Libby
vermiculite. The evaluations focus on the processing sites and
on human health effects that might be associated with possible
past or current exposures. For each site evaluated, ATSDR is
issuing a report, known as a health consultation. These reports
generally include a description of the numbers of workers and
other populations that may have been exposed to asbestos at
these sites.
ATSDR posted the health consultation reports for the 28
sites on the Internet at http://www.atsdr.cdc.gov/asbestos/
sites/national--map/. ATSDR is evaluating the sites that
processed Libby vermiculite by (1) identifying ways that people
could have been exposed to asbestos in the past or ways that
people could be exposed now, and (2) determining whether the
exposures represent a public health hazard. ATSDR will use the
information gained from the site-specific investigations to
recommend further public health actions as needed.
EPA encourages local, state, and Federal public health
agencies to launch outreach efforts to locate and assist former
workers and other highly exposed individuals.
Question 10. Describe the number of people who live within
one mile of the 19 sites that the 2007 GAO report discusses.
Using facility site address information, Census data, GIS
tools and information in the draft ATSDR Summary Report
mentioned above, EPA developed the table below describing the
number of people estimated to live within one mile of the 19
sites discussed in the GAO report.
[GRAPHIC] [TIFF OMITTED] T3576.001
Question 11. Describe the date that EPA first learned that
substances containing less than 1 percent asbestos, including
areas that received asbestos-contaminated material from Libby,
Montana and products made of such material, could present a
threat to human health. Please provide all relevant records
that demonstrate EPA had such information.
Response. Asbestos-related risk and human health effects
are measured in terms of airborne fibers, that is, the number
of fibers released into the air that could be contained in the
breathing zone. Measurements of fibers are made using electron
microscopy. Bulk measurement, such as the 1 percent (1 percent)
threshold, is not a health based measurement. Rather, it
measures the amount of asbestos contained in materials in a
bulk state.
The 1 percent asbestos threshold is a Clean Air Act
regulatory criterion used for asbestos-containing material
(ACM) as defined in Subpart M of the National Emission
Standards for Hazardous Air Pollutants (NESHAP). EPA issued a
Superfund program memorandum on August 10,2004 that indicated
the 1 percent threshold may not be reliable for assessing
potential human health risk from asbestos contaminated soils at
hazardous waste sites and that a risk-based, site specific,
action level was more appropriate when evaluating response
actions for asbestos.
With respect to the tremolite asbestos contamination of
vermiculite, EPA first learned in 2001 that W.R. Grace, owner
and operator of the Libby Montana vermiculite mining
operations, had tested its vermiculite attic insulation in the
late 1970's and found that it released six times the OSHA
permitted level at the time. Subsequent to these findings,
discussions during the EPA conference, ``EPA's Asbestos Site
Evaluation, Communication, and Cleanup Workshop, Keystone,
Colorado'' held September 23--26, 2003 helped to drive the
decision to issue the August 10,2004 memorandum ``Clarifying
Cleanup Goals and Identification ofNew Assessment Tools for
Evaluating Asbestos at Superfund Cleanups'' (OSWER Directive
9345.4-see attached). This 2004 memorandum directed that
Regions should, ``develop risk-based, site-specific action
levels to determine if response actions should be taken when
materials containing less than 1 percent asbestos. . . are
found on a site.''
Question 12. Describe the actions, other than those
discussed in the 2007 GAO report, which EPA took to alert the
public about the potential health threats in areas that
received asbestos-contaminated material from Libby, MT.
Response. In its report, GAO was asked to determine the
extent and effectiveness ofEPA public notification efforts
about cleanups at sites that received Libby ore. The focus of
the GAO review on public notification efforts covered the 13
sites where EPA conducted removal actions. GAO research was
extensive in documenting its assessment of EPA's public
notification and outreach efforts. However, there were many
actions taken by EPA that were not specifically discussed in
the GAO report. EPA Headquarters and regional offices maintain
web sites with updated information on asbestos, potential
health threats and the status of activities in Libby, MT and
other asbestos-contaminated vermiculite sites. Also, many of
the detailed records of EPA interaction with the public, State
and local officials onsite assessments and activities by EPA at
vermiculite sites are available at Regional Superfund Records
Centers.
For example, the On-Scene-Coordinators for the Western
Minerals (including Gluek Park) site in Minneapolis, MN, and
the N-forcer site in Dearborn, MI established websites on
EPAOSC.net for public viewing that include site cleanup
details/progress, public meeting information, site fact sheets,
flyers, news releases, sampling plans, sampling results, maps,
and health consultation reports.
More recently, several public meetings have been conducted
in San Antonio, Texas for the Big Tex Grain Site. The last
meeting was held in January 2008. The public was notified of
this meeting via a mailed flyer. The results of sampling
studies were discussed, as well as, the plans for further
sampling and potential cleanup actions.
EPA Region 3 is conducting public notification activities
at the Ellwood City, Pennsylvania site consistent with the
requirements of the NCP including the designation of a
spokesperson, establishment ofAdministrative Record,
notification of the Administrative Record with a public comment
period, as well as a fact sheet to be delivered to the
surrounding community.
Question 13. Describe the actions that EPA has taken or
plans to take to alert the public to the potential health
threats posed by products made from asbestos-contaminated
materials from Libby, Montana. Please provide all relevant
records that demonstrate EPA actually took such actions or
plans to take such action. For any future activity, provide a
timeline describing the steps that EPA plans to take.
Response. In May 2003, EPA and the Agency for Toxic
Substances and Disease Registry (ATSDR) co-authored the
consumer outreach brochure, Current Best Practices for
Vermiculite Attic Insulation. In addition, EPA worked
cooperatively with home improvement centers (Lowes, Home Depot,
and Sears) to assist in our effort to educate consumers about
concerns relating to vermiculite attic insulation. EPA's
website provides information largely taken from the outreach
brochure, including information about asbestos and how it may
affect health; products and areas in the home where asbestos
may be found; how to identify materials that may contain
asbestos; how to manage and address asbestos; do's and don'ts
for homeowners; how to find and work with an asbestos
professional; and references to additional information. Please
see: www.epa.gov/asbestos.
On May 21, 2003, EPA and ATSDR held a press briefing
announcing the EPA-ATSDR public awareness campaign on
vermiculite attic insulation which may contain asbestos. An EPA
press release was also issued that day. Additionally, the EPA's
Regional offices helped inform State agencies about the issue
and provided extensive information. Most, if not all states
have vermiculite information on their appropriate State agency
websites.
In addition to posting information regarding asbestos and
vermiculite attic insulation (VAI) on the EPA website, the
Agency conducted an extensive outreach effort to the major home
improvement stores including, Sears, Home Depot and Lowes.
Beginning in 2003, Sears displayed the VAI brochure in the
information kiosks of most Sears stores nationwide. However,
Sears later went through a major reorganization in their stores
where all of the information kiosks were removed, along with
our brochures. Home Depot decided not to display the brochure
in their stores due to stocking issues and display placement
issues, but did agree to link their website to the EPA's VAl
website. Lowes made a similar decision and agreed to work with
their partner, the Home Safety Council, to display EPA's
information on their website. http://www.homesafetycouncil.org/
safety guide/sg poison w003.aspx.
EPA also conducted an extensive mailing to various
associations and organizations, including home building and
repair magazines, newsletters, and a number of home and garden
television shows, to share information about VAL The Agency
sent approximately 60 letters as part of its outreach efforts
to provide information on asbestos and vermiculite attic
insulation.
------
Responses by Susan Parker Bodine to Additional Questions
from Senator Inhofe
Question 1. Do you agree with the conclusions of the report
authored by Professor Steinzor ``The Toll of Superfund
Neglect?''
Response. EPA does not agree with Professor Steinzor's
conclusions that the Superfund program no longer cleans up
hazardous waste sites because of funding shortages and neglect.
The report ignores the extensive cleanup construction and risk
reduction measures taken at the sites identified as not being
cleaned up.
The appropriated funding levels for the Superfund program
have remained steady over the past five fiscal years, between
$1.2 and $1.3 billion dollars. Moreover, EPA supplements its
annual appropriated funding with resources deobligated from
prior fiscal year contracts, settlements with responsible
parties, and State cost share contributions. The report fails
to account for these resources. There has not been a
significant decrease in Superfund cleanup work. Superfund
construction work has remained relatively steady over the
years; however, work is now concentrated on more costly,
complex sites. We are pleased to report that in fiscal year
2007, EPA funded all new construction projects that were ready
for funding, therefore, there is no backlog of unfunded
Superfund site construction projects.
Far from neglecting Superfund site cleanup, through fiscal
year 2007, 1,030 Superfund sites had cleanup construction
completed, that represents 66 percent of the sites listed on
the National Priorities List (NPL). Moreover, through fiscal
year 2007,95 percent of NPL sites have had remedial or removal
cleanup construction work performed.
Significant work has occurred at the 50 sites identified in
Professor Steinzor's report. Construction has been completed at
2 of the sites; UGI Columbia Gas Plant and ALCOA Lavaca Bay.
However, ``Construction Complete'' is an interim measure of
site cleanup progress and much work occurs at a site before
this milestone is achieved. At 22 of the 50 sites in the
report, construction work is underway. At another 6 sites,
engineering design work is underway in preparation for
construction. At 17 other sites, important studies are in
progress to determine how the sites should be cleaned up. In
addition, at 3 of the 50 sites, although studies have not yet
begun, early response actions have been taken.
Although completing remedy construction at large, complex,
sites may take many years, EPA often addresses immediate risks
at sites through its Removal program. For example, EPA has
provided alternative water supplies to more than 2 million
people so they are not drinking or using contaminated water.
Through fiscal year 2007, the Removal program conducted more
than 9,400 removals at more than 6,900 sites. Of these, more
than 2,400 have occurred at NPL sites.
In fact, EPA has carried out removal actions at 56 percent
of the sites on the NPL, including 142 removals at NPL sites
not yet in the long-term construction phase.
Ten of the 50 sites in Professor Steinzor's report are
known as mega sites--NPL sites where the final cleanup remedy
is expected to cost more than $50 million. Mega-sites typically
take a longer time to clean up because they are more complex
than the average NPL site. Of 535 sites that are not
construction complete (as of end of fiscal year 2007), nearly
40 percent are either Federal facility sites or are mega-sites,
where cleanup costs are expected to exceed $50 million. This
compares to 1,030 sites that are construction complete (through
fiscal year 2007) of which only 11 percent are Federal facility
or mega-sites. Today the remaining number of sites to be
completed is much smaller, but a greater percentage of those
remaining sites are the larger, more complicated, mega-sites
which take more time to complete.
The Iron Mountain Mine Superfund site, one of the fifty
sites in Professor Steinzor's report, is a good example sofa
mega-site where a significant amount of cleanup work has been
achieved. Iron Mountain Mine covered 4,400 acres in northern
California and operated from 1860 to 1962. Annual rains and
surface waters washed through the abandoned, exposed mine and
created acid mine drainage (AMD) that flowed into the
Sacramento River--making it the largest discharger of heavy
metals to surface waters in the United States. After being
added to the NPL in 1983, EPA has studied the source of the AMD
and carried out several emergency response (removal actions)
and long-term cleanup actions (remedial actions) to reduce the
AMD discharging from the mine to the Sacramento River by 95
percent.
The report also mischaracterizes the purpose of the
Superfund Hazard Ranking System (HRS). The HRS has never been
an indicator of relative risk among sites. A site need only
score above 28.5 to be eligible for listing on the National
Priorities List. It is not necessary to score beyond this, and
inappropriate to use the scores as indicators of relative risk.
In setting cleanup priorities, the Superfund program focuses
attention and resources on the sites that present the greatest
imminent risk.
Question 2. Do you agree with the characterization of the
Superfund program found in Bradley Campbell's hearing
testimony?
Response. EPA does not agree with Bradley Campbell's
conclusions that Superfund program completions have dropped
because of funding shortages and lack of enforcement. These
assertions are simply untrue. The appropriated funding levels
for the Superfund program have remained steady over the past
five fiscal years, between $1.2 and $1.3 billion dollars.
Moreover, EPA supplements its annual appropriated funding with
resources deobligated from prior fiscal year contacts,
settlements with responsible parties, and State cost share
contributions.
Superfund program work has remained relatively steady.
Through fiscal year 2007, 1,030 Superfund sites had cleanup
construction completed, that represents 66 percent of the sites
listed on the National Priorities List (NPL). Moreover, through
fiscal year 2007,95 percent ofNPL sites have had remedial or
removal cleanup construction work performed. Annual site
completions have been affected by the composition of sites that
have not yet reached construction completion. These sites are
generally more complex than the sites we have completed in the
past. Of 535 sites that are not construction complete (as of
end of fiscal year 2007), nearly 40 percent are either Federal
facility sites or are mega-sites, where cleanup costs are
expected to exceed $50 million. This compares to 1,030 sites
that are construction complete (through fiscal year 2007) of
which only 11 percent are Federal facility or mega-sites.
In addition, EPA continues its vigorous Superfund
enforcement efforts. Through aggressive enforcement, EPA has
been able get responsible parties to conduct cleanups, and has
collected settlement dollars to clean up sites. Since the
beginning of the program, the value of Superfund settlements
has exceeded $25 billion. In fiscal year 2007 alone, EPA
secured more than $1 billion in settlements for cleanup or cost
recovery. EPA currently has more than $1 billion in site
specific special accounts that can be used to clean up sites,
and since 2002, more than $535 million has been used for
cleanup work.
Question 3. Would reinstating the lapsed Superfund taxes
provide additional funding for the Superfund program?
Response. The lapsed Superfund taxes did not dictate the
annual level of congressional appropriations for the Superfund
program. Neither taxes nor the balance in the Superfund Trust
fund governed annual levels of congressional funding. EPA never
had direct? access to tax revenues or to Trust Fund balances.
The Superfund program has always relied on appropriated funding
to fund Superfund program activities.
Question 4. Mr. Michael Steinberg suggested in his
testimony at the Committee hearing on October 17, 2007 that
there historically has not been coordination between senior EPA
headquarters policymakers and the regional staff on major
clean-up and funding decisions. What input did EPA headquarters
have into the Manville Site decisions and what process did EPA
follow to ensure that the cleanup decisions were effective but
also reasonable?
Response. To ensure that the cleanup decisions were
effective and reasonable, EPA followed the statutory
requirements for CERCLA remedies and the process established in
the National Oil and Hazardous Substances Pollution Contingency
Plan (NCP) for meeting these requirements.
EPA headquarters was kept informed and involved during the
remedy selection process for the Federal Creosote site. In
March 1999, comments on the Operable Unit 1 (OU1) proposed plan
were solicited and received from EPA Headquarters/the Office of
Solid Waste and Emergency Response (OSWER). Comments received
from OSWER were incorporated into the proposed plan. Also in
March of 1999, the proposed remedial action for the Federal
Creosote Site was presented before the National Remedy Review
Board (NRRB), which is chaired by OSWER. The NRRB reviews
proposed Superfund cleanup decisions projected to cost greater
than $30 million at this time to assure that they are
consistent with Superfund regulations and guidance, and to
verify that remedy selection is cost effective. The NRRB
focused on the nature and complexity of the site, health and
environmental risk, cost, the range of alternatives that
addressed site risks and other relevant factors. The
recommendations that NRRB provided were followed by the Region.
EPA Headquarters provided additional solicited input on the
draft Record of Decision (ROD) for OU1, which were incorporated
into the final OU1 ROD. In addition, EPA headquarters was
engaged and provided input on proposed plans and the draft RODs
for the two subsequent operable units at the site.
EPA Headquarters was kept informed and provided support
during the implementation of the remedy. Remedial action
funding was prioritized through the National Risk-Based
Priority Panel process and all funding requests were developed
in conjunction with Headquarters throughout the entire period
of the remedial action at the site.
Question 5. It has historically been EPA's policy to
identify and pursue as many potentially responsible parties
(PRPs) as possible to contribute to site clean-up costs. To
date EPA has focused on only one PRP at the Manville Site. Is
EPA going to investigate fully and pursue other PRPs?
Response. EPA's enforcement efforts at this site have been
substantial. EPA evaluated the liability of and sent notice
letters to two parties, who were the owners/operators of the
facility at the time of disposal. EPA has also sent numerous
104(e) Information Request letters to parties to assess
potential liability that those parties may have for the
transactions that their companies had at the site. To date, EPA
has received no information that has justified issuance of
notice letters to these parties. Although EPA's PRP
investigation is in its last stages, EPA is in the process of
evaluating information from two additional parties.
Question 6. EPA has not ranked the Federal Creosote site
high on its ranking list of priority sites. In addition, the
Federal Agency for Toxic Substances Disease Registry (ATSDR)
and New Jersey health officials concluded that there were no
significant health risks at this site, unless long-buried
materials were dug up. Do you believe that spending close to
$300 million (approximately 25 percent of EPA's average annual
Superfund appropriation) to respond to one site that apparently
posed no significant public health risk is a wise use of
limited taxpayer dollars?
Response. By definition, a site on the National Priorities
List is a priority. The Federal Creosote site was placed on the
NPL in 1999. Prior to listing, the Site was operated as a coal
tar wood treatment facility from 1911 to 1956. After operations
ceased and the wood treatment facility was dismantled, the
property was purchased by a developer. In the 1960's, 137
single family homes were built on 35 acres of the Site. This
residential area became known as the Claremont Development. The
remaining 15 acres of the site was developed into the Rustic
Mall which consists of commercial and retail establishments.
A review of historical information revealed that, during
its operation, the facility treated railroad ties with
creosote. Wood treatment activities at the Site resulted in the
production ofcreosote--contaminated sludge, sediments, process
residuals, preservative drippings, and spent process liquid.
The most prominent features of the wood treatment operations
included two unlined canals that conveyed creosote waste to two
unlined lagoons that were used to hold concentrated creosote
waste sludge.
Investigations by EPA revealed that creosoting materials
and contaminated soils associated with the wood treating
facility were not removed prior to construction of the
Claremont Development and Rustic Mall. The former lagoons are
located from 2--5 feet below ground surface; the waste from one
lagoon extends approximately 25 feet below ground surface while
the other extends over 35 feet to bedrock. At several
properties, the former lagoons and associated sludge were found
to abut and/or underlie existing residences. The material in
the lagoons was concentrated creosote sludge; on at least one
occasion, creosote sludge seeped into a residential basement
sump, was pumped onto the residential street, and flowed into
the storm sewer system. The creosote waste in the canals is
shallower--extending approximately 14 feet below ground
surface. The material found in the buried canals range from a
dry, crusty creosote/soil mixture to flowable creosote waste
sludge.
EPA conducted extensive surface soil sampling in the spring
of 1998 to determine whether there was any immediate threat to
current residents. This sampling revealed that surface soil at
approximately 11 homes with the highest overall levels of
carcinogenic polycyclic aromatic hydrocarbons (material
associated with wood treating chemicals) posed an unacceptable
risk over the long-term and EPA took immediate action at those
properties. The lagoon sludge and canal waste is highly
contaminated source material which poses a risk to current and
future residents. The primary routes of exposure included
dermal contact with contaminated sludge and soil (present and
future risk). Source material contaminated groundwater which
could result in a future risk associated with ingestion of
contaminated groundwater.
EPA concluded, based on its investigations, that the site
did pose a significant public health risk. Following the
Remedial InvestigationlFeasibility Study, the proposed remedial
activities were reviewed by the National Remedy-Review Board
and later, the National Risk--based Priority Panel for funding.
The site work was considered as the highest prioritized new
construction project in 1999 and was allocated funding that
fiscal year.
ATSDR did not conclude that there was no significant public
health risk at this site. At the time of its review, ATSDR
concluded that ``past and present exposures to surface soil
represent no apparent public health hazard.'' ATSDR followed up
this conclusion by stating: ``However, this conclusion does not
rule out the need to continue remedial activities''.
Furthermore, based on their conclusions, ATSDR made the
following recommendation in the Public Health Assessment for
the Federal Creosote site: ``The NJDHSS (New Jersey Department
of Health and Senior Services) and ATSDR recommend that the
USEPA continue its remedial plans to remove source material
from the site.'' ATSDR was fully supportive ofEPA's selected
remedies for the site.
The decision to take remedial action at the Federal
Creosote Site is consistent with the risk-based approach as
mandated by the National Contingency Plan (NCP). As stated in
the NCP, the acceptable risk range for site-related exposures
is 10-4 and 10-6 . EPA conducted a Baseline Human Health Risk
Assessment (BHHRA) to estimate the potential risks associated
with the Federal Creosote site. The BHHRA demonstrated that the
site-related exposures exceeded EPA's acceptable risk range
which triggered EPA's response action.
Question 7. EPA removed more than 450,000 tons of soil from
the Federal Creosote site-almost 300,000 tons more than EPA
originally estimated. If the scope and cost of a selected
cleanup changes as fundamentally as this did during the
cleanup, shouldn't EPA re-evaluate the choices it has made for
the site? Was that done in this instance?
Response. While the increase in quantity from EPA's
original estimate was significant, the quantities provided in
the statement above are incorrect. EPA's original quantity
estimate was approximately 250,000 tons at the ROD stage not
150,000 as indicated above.
EPA re-evaluated its remedial decisions at several points
during the remedial process; however, site constraints limited
the available remedial choices, and EPA concluded that the
increase in volume did not justify a change in remedy. After
the OUI ROD, additional investigations led to an increase in
the estimated quantity of OUI waste. This increase in quantity
and resulting cost was evaluated in the remedy selection
process and was documented in the OU2 ROD.
The remedial action differed significantly from the remedy
selected in the OUl, OU2 and OU3 RODs with respect to cost. In
accordance with the NCP, EPA consulted with the New Jersey
Department ofEnvironmental Protection and published an
Explanation of Significant Differences (ESD). The ESD made an
explanation of these significant cost differences and
supporting information available to the public in the
administrative record established for the site and published a
public notice that summarized the ESD, including the reasons
for such differences, in a local newspaper.
Question 8. EPA's ``presumptive remedy' guidelines direct
EPA's regional offices to use bioremediation or low temperature
treatment on former wood-treating sites. EPA's guidance also
advises against selecting a remedy that would incinerate large
volumes of soil because ``incineration of large volumes of
contaminated media may be prohibitively costly.'' Do you
believe an EPA decision to ship more than 150,000 tons of soil
from the Federal Creosote site to Canada to be incinerated is
consistent with EPA's own policy and guidelines in this area?
Response. EPA implemented the remedy in accordance with its
policy and guidelines, considering site-specific conditions
such as space constraints and the residential nature of the
site.
The presumptive remedy guidance document is intended to
assist EPA in determining appropriate cleanup technologies. The
guidance document states that ``EPA officials may decide to
follow the guidance provided in this document or to act at
variance with the guidance, based on an analysis of specific
site circumstances.'' Recognizing that there is no such thing
as a ``one--size fits all'' remedy for sites, the NCP requires
the agency to formulate different remedial alternatives
``taking into account the scope, characteristics, and
complexity of the site problem that is being addressed'' 40
C.F.R. 300.430.(e)(2).
EPA's presumptive remedy guidance considered three
technologies effective in treating creosote wastes that contain
organic contaminants: bioremediation; thermal desorption; and
incineration.
On-site and offsite applications of these technologies as
well as additional technologies were given consideration during
the remedy selection process for the Federal Creosote site.
The site-specific evaluation of treatment alternatives
required by the NCP resulted in EPA's determination that site
conditions were such that onsite treatment using either
bioremediation, thermal desorption, or incineration was not
appropriate. In additional to the practical concerns regarding
the operation of a hazardous waste treatment facility in the
town center and within a housing development, there were
technical concerns regarding the ability of bioremediation and
a thermal desorption system to treat the high concentration of
contaminants present in the soil and address the types of
material encountered at the site.
Senator Clinton. Thank you so much, Administrator Bodine.
It certainly will be, without objection.
I have some specific questions, but I want to make just a
general comment. As I said in my opening remarks, you know, the
glass is half full, the glass is half empty. People look in,
see the same set of facts and draw different conclusions.
I think what we are interested in on this Subcommittee is
what we can do together to help make progress in dealing with a
lot of these complex sites in a more expeditious way. My ears
perked up when Senator Inhofe talked about targeted funding
sources. What targeted funding sources would be acceptable to
the Administration to begin to get more money into the process?
Because certainly if we are dealing with more complex sites
that certainly does for me argue that there is a higher level
of technical skills required; it is more painstaking. And yet
the amount of money requested has not increased to reflect the
complexity of those cleanups.
So I hope that the EPA will work with this Committee to
come up with some solutions for these complex sites.
I want to specifically draw your attention to a site called
Lawrence Aviation Industries. It is a 160 acre site in Suffolk
County which is on Long Island in New York where huge
quantities of TCE and acid sludge were dumped into two large
lagoons. The site is located on a hill and the waste has
leached toward wells and the Long Island Sound.
Now, this is a case where we do have a responsible party,
and yet the site has a status of human exposure uncontrolled,
more than 7 years after it was listed in 2000. I would like to
ask why the EPA has not controlled human exposure to pollution
at this site and when can we expect the EPA to get it under
control?
Ms. Bodine. Thank you.
Actually, I am glad that you brought up this site because
it illustrates a broader point. We are dealing with sites and
determining whether the human exposure is under control or
whether we have sufficient data to make that determination.
That is a determination that can change as our information
about the site changes over time. So a site can be under
control, and then we can learn about a new exposure pathway and
it could be not under control or insufficient data until we
have learned what is going on.
So at Lawrence Aviation, it is one of many sites around the
Country where we have become aware of a pathway related to TCE,
which is vapor intrusion. By no means is that the only site.
There are a lot of sites around the Country where we have
recognized that there is this new exposure pathway, vapor
intrusion, that wasn't thought of. In the 1990's, we were
dealing with these sites, and we thought if we dealt with the
groundwater, we were done. We have discovered, no, there is
another pathway. We have to go back and check because we need
to protect human exposure.
So that is why a large number of sites either are not under
control, or particularly a large number of sites are
insufficient data because we are going back. We think there may
be a vapor intrusion problem. We don't know yet. We will
collect the data.
Specifically at Lawrence Aviation, we did do the sampling,
and to date we have not found a vapor intrusion problem, but we
need to go back and verify that. Again, the groundwater problem
was taken care of at the site a long time ago. The local
residents were hooked up to a public water supply system, and
on the vapor intrusion site we have conducted the sampling and
I will have to get back to you on the record on what the
results are.
Senator Clinton. Well, Ms. Bodine, I would like for a full
status report on all the 111 sites where there is a finding of
human exposure to dangerous levels of toxic chemicals.
Obviously, I would like to know the status of that. I
understand the vapor intrusion problem. We have that
unfortunately at a number of sites in New York. But I would
appreciate your submitting that to the Committee.
I also want to just clarify something. In your written
testimony, you talk about how the potentially responsible
parties have performed work at 70 percent of the sites. I have
a letter from Chairman Dingell in the House to Administrator
Johnson asking whether 50 percent is a more accurate figure.
The EPA responded, ``We cannot accurately predict what the
percentage will be in the future. However, some believe that
there will be more orphan sites where there are no viable PRPs
in the future, and thus the percentage of PRP participation may
decrease.''
May I ask you, what do you think the future holds? Is it
likely that the PRP share will increase or decrease?
Ms. Bodine. Well, you are looking just at NPL sites.
Senator Clinton. Right.
Ms. Bodine. We are not listing as a proportion of the sites
as many sites that are PRP-lead, because oftentimes there will
be a highly qualified State program that can manage and oversee
the responsible parties action. So those sites don't
necessarily get listed. So again, the sites that are being
listed have the recalcitrant PRPs, the complex sites, or the
orphan sites.
So yes, going forward, the proportions of the cleanup
actions that are orphan are larger than they had been in the
past, because we don't list every responsible party.
Senator Clinton. Well, but then of course that raises the
question that we now think there are nearly 400 orphan sites.
Since the Superfund trust expired 4 years ago, that does mean,
as Senator Lautenberg pointed out, that totally innocent
parties, namely American taxpayers, are paying for all of these
cleanups, and they are in a sense carried as unfunded
liabilities on the Superfund program.
So I would like also in writing what you think the
liability is; how much the total cleanup costs at these so-
called orphan sites currently on the NPL will be. I think it is
an important question for us to try to get to the bottom of
together because it will help inform the debate about what to
do with respect to reinstating the Superfund fees or trying to
get some targeted funding to help us cleanup.
So if I could, Administrator Bodine, I would appreciate
that. And then I would ask unanimous consent to submit the
letters and the backup to my questions for the record.
Let me now turn to Senator Barrasso.
Senator Barrasso. Thank you very much, Madam Chairman and
thank you for being here today. I appreciate your time.
Senator Boxer referred to some privileged documents. I
think we saw a big pile in the possession of the Committee. Is
this information that needs to be privileged because EPA is
bound by laws to do that? Could you just help clarify that a
little bit for me?
Ms. Bodine. We generally claim a privilege for our
deliberative processes, as have all Administrations before us,
as well as other agencies, because you need to be able to
preserve the candor in the communication within an agency as we
are dealing with whatever complex situations that is under our
authorities.
So of course, you are our oversight Committee. We are
sharing documents with the oversight Committee, but when it
involves, again, privileged internal debate discussion draft
deliberative material, we ask that this not be made public
because if it were, it would then chill the ability to have
those kinds of discussions with our staff within the
Administration about how to deal with situations.
Senator Barrasso. I have read through the testimony of the
second panel as well, and if I could just refer to one of those
and visit with you about it, because you are testifying now and
they are later. Mr. Steinberg says that there is a need for the
EPA to manage its annual appropriations differently, that some
of the money that is going into what people might think is
Superfund activities is actually being used for other
administrative and other purposes. What would you think about
that?
Ms. Bodine. The Superfund program is a large program. As I
talked about, we have over 3,200 Federal employees, men and
women who are working every day on the program. So yes, we are
paying their salaries. We do manage a large construction budget
for sites where we are overseeing the cleanup directly. So we
do have to have staff that deal with management of contracts.
So there is, as there is in the private sector, you have
your base core program costs and then you do have
administrative overhead costs that are associated with that,
but those costs are necessary to get the work done.
Senator Barrasso. And then the final question, we talked a
little bit about the Amoco refinery and a partnership, and I
know you talked a little bit about the local communities and
what they are doing. So I think it shouldn't be a surprise that
there are maybe fewer things going on the list because of the
efforts that are being done at a local level and private-
Government partnerships.
Ms. Bodine. Absolutely. EPA and the Superfund program is
not the only game in town at all. Where local communities can
manage their problems, where the State can deal with the
situation that is good news. That is success.
Senator Barrasso. Thank you very much.
Thank you, Madam Chairman.
Senator Clinton. Thank you very much, Senator.
Senator Boxer.
Senator Boxer. Thanks, Madam Chairman.
Ms. Bodine, you said that we have always had a lively
debate on how the program should be managed. I would
respectfully disagree that this is what the debate is about.
You can always have a disagreement on management. I think the
debate is much more fundamental. It is about the priority that
is given to the Superfund program and the lack of priority that
is given to it under this Administration, and the seeming lack
of concern for the people who are impacted.
With that in mind, I would call to your attention a 2004
EPA report where there is an acknowledgment that, ``current
resources appropriated to the Superfund program may be
insufficient to fully implement the program.'' Do you disagree
with these statements?
Ms. Bodine. I would have to look at the report that you are
referring to.
Senator Boxer. OK. Grant? This is your own agency, cleaning
up the Nation's Waste Sites, 2004 edition, and this is where
that comment is made. We will send it over. Could you send that
over to the Administrator?
Do you agree or disagree whether or not you see it there?
Do you believe that there is in fact a shortfall coming of $100
million to $200 million over a 10 year period?
Ms. Bodine. I know that in 2004 there were some analyses
that were looking forward in terms of what we may be expecting
for sites that were coming and what we were expecting for
funding. I don't know exactly what you are referring to, but I
do know that our out-year estimates of costs are not
particularly reliable, so whatever numbers there would be a
degree of uncertainty associated with those.
Senator Boxer. Forget the uncertainty. Do you feel
comfortable with the funding as far as the Superfund site and
what we need? Do you feel comfortable that you have the
resources that you need now and into the future for your people
who are coming after you, assuming we just kept the same
funding stream?
Ms. Bodine. We are continuing to make progress in cleaning
up sites, and we have funding to continue to make that
progress. We are part of the whole unified budget.
Senator Boxer. I know you are part of the unified budget,
and I am not asking about the unified budget. I don't have a
lot of time here, so the point is you are answering me not yes
or no, but you are giving me a story. The story is just very
confusing to people, because either you have it or you don't.
EPA in 2004 said you don't have it. You seem happy, and you
seem to think the debate we are having is about management,
when a lot of us believe it is much more than management. It is
about a fundamental decision made by this Administration to
short the program.
Now, you are familiar with Region VI, correct, which is
Oklahoma, Texas, are you not?
Ms. Bodine. Yes.
Senator Boxer. OK. I am going to ask you something here.
You in your opening statement were very positive about working
with the community. You mentioned it several times, working
with the community, working with the State, working with our
tribal partners. Are you aware that in Region VI that part of
your budget has been decimated in order to take money out of
those so you can have money for other matters? Are you aware of
that?
Ms. Bodine. No, ma'am, I am not.
Senator Boxer. Well, you should be aware of it because it
is a document I got, and it is a document that says it is for
oversight. So I am talking to you about this. Do you know how
much was cut from technical assistance in order to have money
for the NPL site in this region?
Ms. Bodine. I don't.
Senator Boxer. Well, it was 64 percent in 2003. And then
community involvement, you know how much that was cut? About 56
percent, State, tribal management assistance was cut 32
percent. State, tribal grants were cut 100 percent. EPA site
assessment was cut 48 percent. State, tribal core grants were
cut 88 percent. Contracts, program management were cut 66
percent. Other support assistance was cut 25 percent. And the
statement is made, and there are no names on this document.
This is nothing to do with confidentiality here. This is the
taxpayers' money, how it is being spent or not spent. And it
says by reducing these categories, Region VI was able to keep
its NPL site work progressing.
So this Administration is destroying this program just to
keep the facade of the last dollar you can eke out to keep
things moving.
So I would just simply say to you, and my time is running
out, the debate is a lot more than the way you are portraying
it. It is very serious. In my State, EPA failed to use health-
based standards when assessing risks. At 271 sites that
received asbestos-contaminated material from Libby, Montana,
and 36 of those sites are in my region, including my State. How
are you responding to that? I know Senator Baucus has a great
deal of concern about this. Do you agree with the GAO study of
October, 2007 that said you failed to use health-based
standards when assessing the risks; you failed to follow your
own regulations and guidance in notifying the public about
potential dangers? Do you agree?
Ms. Bodine. We know more about asbestos than we did when we
were going out and looking at the sites where Libby material
was sent. Since then, we have developed better methodologies.
Again, it was since that work was done. We have improved our
technologies and improved our methodologies. And so, yes, we
understand that we need to go back and look at sites where----
Senator Boxer. So you agree with the criticism of the GAO
study of 2007?
Ms. Bodine. I don't agree with the conclusion that we
failed to follow regulations with respect to informing the
public. Those actions were under removal actions and under the
national contingency plan, under our regulations the degree of
public involvement, whether you would need a public hearing,
for example, is scaled to the level of effort, to the size of
the cleanup. So in some cases, you could have had a single home
that we were addressing and you wouldn't have a large-scale
public meeting for a situation like that. In other cases, we
did have public meetings.
So again, it was scaled to the relative degree of----
Senator Boxer. So do you agree or disagree with this
report?
Ms. Bodine. I agree we need to go back and evaluate the
sites using our better methodology, as well as when we complete
the toxicity assessment of the Libby amphibole, look at the
data, and evaluate against that. That is all new methodologies
and new information that we are developing, that we didn't have
when we did the work originally.
Senator Boxer. So you agree with this report?
Ms. Bodine. There are two parts. I agree with the
recommendation we need to go and look further, and I disagree
with the conclusion that we failed to follow our regulations
with respect to it.
Senator Boxer. OK. Well, the GAO said you agreed with the
whole report. So I don't know whether you told them that or
not, but I will send this over. It said GAO expressed general
agreement on the notification. Are you planning to go out and
notify my people as far as what they have been exposed to? Do
you have plans to remediate the problem?
Ms. Bodine. Again, we will go back and evaluate and notify
the public as we go back and as we do the work, as we find out
more.
Senator Boxer. Madam Chair, I find this response very
unsatisfactory because it is halting. It is not clear. Whenever
we raise anything to do with Libby and asbestos, this is what
we get. I would hope if we could through the Subcommittee and
the full Committee, get a response from you to the GAO
investigation, and how you are going to go back to my people
and people all over this Country, tell them what they were
exposed to, and what precautions they ought to take about this
exposure.
Thank you. Sorry I went over.
Senator Clinton. Thank you very much, Senator Boxer.
Administrator Bodine, we will submit very specific
questions along the lines of Senator Boxer's concerns to try to
get very specific answers, because clearly this is important to
all of us that have these sites in our States and are trying to
figure out how to protect the people that we represent.
Senator Inhofe.
Senator Inhofe. Thank you, Madam Chairwoman.
Administrator Bodine, you heard my opening statement. I
referred to the fact that Senator Reid and I are actively
looking into the Federal creosote site in New Jersey and we
will be requesting a GAO investigation into the site,
particularly the cleanup methods used leading to over $300
million for a 50 acre site.
I think this is a good thing to talk about because all the
finger-pointing that is here and which Administration did what,
first of all, you weren't here when that happened so you are
off the hook. This is something that started in 1999, so both
Administrations were involved in it.
Now, at the Federal creosote site, EPA dug up 450,000 tons
of dirt and shipped more than 150,000 tons to Canada to be
incinerated, raising the cleanup costs of this site
dramatically. This was done when there were other remedies
available. The EPA's own guidance, which says that incinerating
anything over 5,000 would be cost-prohibitive.
Now, you weren't here, but do you have any insight into why
the EPA used such a costly remedy as they did at this site?
Ms. Bodine. Sorry, Senator Inhofe. I don't have any insight
into that. I can go back.
Senator Inhofe. Well, I would like to have you do that for
the record because specifically they say that you should not
use this methodology if it is over 5,000. This was way over,
and so something got into that decision, and I would kind of
like to know what it is.
Now, up until I became Chairman of the EPW Committee, and
that was four and a half years ago, the Federal Government
spent $130 million on Tar Creek. This is over about a 20 year
period. Tar Creek is the site I referred to in the State of
Oklahoma. And the results weren't good. Once we got all the
Federal agencies to work together and to work on this with the
State agencies in a new cooperative manner, we found that sound
solutions for the site addressing the environment, the
residents, and the cost. Is there some way that you could have
used this model of cooperation for the Federal creosote site or
for some of the other Superfund sites?
Now, what we did was something that is unheard of in
government. We got everybody in one room--DOJ, DOI, EPA, the
Corps of Engineers, the State agencies. And we ended up doing
this in a cooperative way with Oklahoma University, the State
of Oklahoma, and I must say with a lot of cooperation from our
Democrat Governor out there. We worked on this thing, but we
worked with all the Federal agencies and we got it done.
Now, I would ask you, if you are familiar with this and if
this is a model that could be used for other sites?
Ms. Bodine. Yes, I am familiar with the collaborative work
among the agencies at Tar Creek. And yes, in situations where
you have other Federal agencies involved, then I think in fact
you need to follow that model. You need to get all the Federal
agencies at the table.
Senator Craig is not here, but there is a site in Idaho
that is phosphate mining where they brought----
Senator Inhofe. He and I have argued in the past over which
is the most devastating site, and I have won that argument,
clearly.
[Laughter.]
Senator Clinton. Why am I not surprised?
Ms. Bodine. No debate. Thank you.
It is not Bunker Hill that I was talking about, but there
is a phosphate mining site which has a lot of the land
management agencies involved in addition to EPA, in addition to
the State, and exactly the kind of model that you described for
Tar Creek is very helpful at that site as well, where you bring
folks together. You have different jurisdictions and different
responsibilities, but to make progress you all have to work
together.
Senator Inhofe. And there is a propensity that seems to be
inherent in Government not to do that. It is a turf thing.
Anyway, you have probably not noticed that in your years.
We have been referring to that site in New Jersey. That is
a site that health officials concluded there weren't any
significant health risks. I would like to know, if that is the
case, then why did that have such a high priority? Why were we
spending so much on it?
Ms. Bodine. Well, I know that we are nearly done with this
site, so I wouldn't be surprised that it no longer has health
risks because we have addressed them. Now, how it was at the
beginning, I would have to go back and find out. But that site
is nearly complete.
Senator Inhofe. OK. You said something, and I unfortunately
didn't read your written testimony. I normally try to do that,
but I believe you said that there were 1,200 sites prior to
1991.
Ms. Bodine. That were listed.
Senator Inhofe. That were listed at that time.
Ms. Bodine. Right. The vast majority of sites on the NPL
were listed before 1991.
Senator Inhofe. OK. Now, those that were listed before
1991, of those, how many would you say are still not treated? I
think you said 284. Is that correct?
Ms. Bodine. I think it was about 284. Yes.
Senator Inhofe. OK. Yes, it is 284. All right, what
characteristics are in those 284 that were in the other 1,000
sites?
Ms. Bodine. Some of them, if you look at the sites that we
are still working on, they are really the famous sites. What I
would like to do is provide you with that list for the record,
but they are sites that have either had contentious litigation
or they are just very large complex sites.
Senator Inhofe. I think that would be a good idea, because
the argument we keep hearing, and I know it is sincerely posed,
is that there is not a great difference in the ones that were
done during the 1990's as opposed to during this
Administration.
Ms. Bodine. Right. You have to look at the ones that aren't
done.
Senator Inhofe. OK. One last thing, very occasionally
Senator Lautenberg and I agree on some things.
[Laughter.]
Senator Inhofe. And one statement that he made that I agree
with, he said, and it is very simple, and he has a way of
putting in terms that even I understand. He said, if you
pollute it, you should clean it up. And I agree with that.
Frankly, I think we all agree with that. But I think the whole
concept that if you are in a particular industry, should you be
taxed, even though you don't have any relationship or any
responsibility, have never operated in an area where there is a
Superfund site, why should you and the stockholders of that
company be responsible for something that you had nothing to do
with?
Now, in so far as policies that you take, I would like to
have you keep that in mind. Look for areas, yes, if you can
find the polluter that polluter should clean it up. We all
agree with that, so this should not be a contentious issue.
Ms. Bodine. We have a very strong enforcement program for
cleanup work or commitments to clean up work of over $25
billion, with the work done by people who actually caused the
problem.
Senator Inhofe. Yes. Good for you.
Thank you, Madam Chair.
Senator Clinton. Thank you very much.
Senator Lautenberg.
Senator Lautenberg. Thanks, Madam Chairman.
I enjoy my opportunities to be with Senator Inhofe. He
always makes me think of a response, but I will forego that
pleasure.
Ms. Bodine, you seem to take some delight in the fact that
we have a bunch of sites that are left, and you excuse them by
saying they are a greater cleanup challenges than others. Does
that mean that they are not dangerous in any way?
Ms. Bodine. No, I didn't say that.
Senator Lautenberg. Well, you said it in your remarks. I
will remind you: ``This does not mean that EPA has been
neglecting these sites. It simply means that some sites present
a greater cleanup challenge than others.''
Does a greater cleanup challenge mean that these sites
might be dangerous to the people in the area?
Ms. Bodine. If there is an immediate risk, we go out, do a
removal action, and address any----
Senator Lautenberg. But you used the word complicated, and
that suggests that there is something big and terrible in
there.
Ms. Bodine. At a site, you can have addressed substantial
engagement associated with the site and still have a
complicated remedy that is technically complicated where the
work needs to obviously continue and will take a long period of
time.
Senator Lautenberg. You remind me of a doctor who was
visiting with a patient and says I have good news for you. Your
heart is fine, but your cancer is overtaking your body. So here
is the good news for you, that one part of you is terrific and
the other part of you is terrible. You are taking some high
degree of satisfaction out of the fact that we don't have money
with which to pursue the cleanup of these sites.
Do you approve of the fact that the taxpayers are paying
$1.25 billion to clean up these sites?
Ms. Bodine. We would like to have the responsible parties
pay for the entire cleanup. There are some sites where the
responsible parties are not there.
Senator Lautenberg. Yes, but that is why we had the
Superfund reserve at some three some billion dollars in 1996.
Now it is zero. There are many sites that need attention, but
Senator Boxer was interested in some of the materials, some of
the text that was withheld from the public at large. Now, our
former Commissioner Bradley Campbell is going to testify on the
second panel. I will give you that notice, that he
inadvertently receives e-mails in which EPA directed its
technical staff to make up excuses why a cleanup could not take
place to cover for the real reason, which was lack of
sufficient funds. Are you aware of that incident?
Ms. Bodine. No, I am not.
Senator Lautenberg. Is there a practice at EPA that says
whatever you do, don't admit that things have slowed up because
we have insufficient funds; we don't have the resources; we
don't have the staff?
Ms. Bodine. I am not aware of that practice, no.
Senator Lautenberg. You are not? So you have sufficient
staff to do all these cleanups and all the tools that you need
to do them with?
Ms. Bodine. We manage our program and we manage it tightly.
We scrutinize the sites. We require all of our projects to go
through value engineering. We require the projects to be ranked
by a national risk-based priority panel before we fund them. So
we are closely managing this program, and indeed we are also
managing the funds so that we are not putting too much money on
a project, because in fact we have been able----
Senator Lautenberg. Are you short at all? Do you find any
shortages of direct resources, personnel, equipment, or
anything like that as a result of not having enough money? You
have plenty of dough?
Ms. Bodine. We have been able to de-obligate. In other
words, we put money on a project. It wasn't needed. We have
been able to de-obligate $740 million since 2001 from sites. So
we are managing our resources more closely now. Before, we had
a tendency to over-obligate. We put too much money on a
project. That gave us the opportunity when the project is done
to take the unused money and go and use it at other sites.
We are managing our projects more closely now so that we
are not over-obligating. We are not putting too much money on a
project.
Senator Lautenberg. Even though they might need it to get
it cleaned up. My good friend, Senator Inhofe, talked about, or
others talked about the low-hanging fruit and how the early
sites were easy cleanups. That creosote site cost $300 million
by your own statements. So how low was that fruit hanging?
Senator Inhofe. Would the Senator yield for a comment?
Senator Lautenberg. Sure. It is not my time.
Senator Inhofe. Yes. I would only comment, and that is my
point, that so much was spent in a way that violated the normal
rules of what you should spend in terms of the incineration,
particularly when it was a site that apparently posed no health
risk. That is the point I was making.
Senator Lautenberg. Thank you very much, Madam Chairman. I
assume the record will be held open and we can expect prompt
returns from EPA on any questions that we submit in writing.
Senator Clinton. I am sure that is the case. We will leave
the record open and we will look for those prompt responses.
I just have one final question, and that concerns the TCE
standard. Last year, the National Academy of Sciences Board on
Environmental Studies and Toxicology returned its review of TCE
to EPA, and recommended that you act expeditiously to release a
new TCE health risk assessment that includes vapor intrusion
and indoor air standards.
As we were talking earlier, this vapor intrusion problem
from TCE is a serious one that we have to address. We have 10
Superfund sites in New York alone with TCE contamination that
is already in the groundwater. We have evidence of vapor
intrusion.
Has EPA set that standard yet, Administrator Bodine?
Ms. Bodine. What you are referring to is a new IRIS,
integrated risk information system, standard that the Office of
Research and Development is working on. What the NAS said was
that the Office of Research and Development could take not the
data that they had used before to set a draft standard, which
was based on mouse livers or mouse kidneys, but could take data
based on rats and set a standard expeditiously. If the agency
did that, then the conclusion would be that TCE is far less
potent a risk than folks would have assumed based on data
derived from mice as opposed to rats.
So the Office of Research and Development is carefully
looking at all of these issues with respect to what data set
they are looking at. So an expeditious setting of a standard
and doing perhaps what was issued by the NAS could result in a
standard that says, no, you can be exposed to much more TCE. So
obviously, that Office of Research and Development is being
very careful before they draw any conclusions.
Senator Clinton. Well, Administrator Bodine, I would very
much appreciate the chance to have our experts sit down with
the EPA staff tasked on this because the NAS found that the
evidence on carcinogenic risk and other health hazards from
exposure to TCE has strengthened since 2001. Hundreds of waste
sites are contaminated. It is well documented that individuals
in many communities are exposed to the chemical with associated
health risks.
It is very clear in the report that was issued that the
Federal agencies were urged to finalize their risk assessment
with currently available data so risk management decisions can
be made expeditiously. I am now hearing that this is not how
the EPA is viewing the data that is available, and I wish to
have a thorough briefing on this, and have our experts meet
with the requisite staff at the EPA to try to understand what
happened between the NAS recommendation and where we are today
based on your testimony. Is that appropriate?
Ms. Bodine. That is very appropriate, because the fact that
there is a stronger relationship or stronger showing that it is
a carcinogen doesn't mean that it is more potent. There is a
difference.
Senator Clinton. I understand that.
Ms. Bodine. And that is why we will get those folks
together.
Senator Clinton. We need to get them together because the
National Academies, which I believe have a full understanding
of the difference that you are referring to, urged expeditious
action. So I think that it is time that we got expeditious
about this, because I have a lot of people in my State who are
suffering from and worried about the vapor intrusion.
Any other questions?
Senator Boxer.
Senator Boxer. Yes, I do, if no one else does.
Again, I want to get back to the budget. You sort of make a
dismissive nod. Our budget is important to the people of the
United States of America, and the budget of the Superfund
program is very important to the 10 million that live within
four miles of a Superfund site, and who are suffering, getting
sick, dying early, getting cancer and all of that. And that is
why I ask a lot about the budget.
Do you ask division directors to recommend cuts in the
Superfund program?
Ms. Bodine. No. We ask them to manage their sites and
manage their resources carefully.
Senator Boxer. You don't ask them to come up with cuts?
Ms. Bodine. We ask them to carefully review what their
projects are and how much money they need and at what point in
time.
Senator Boxer. Well, Madam Chair, I have a document here
given to me by the EPA which shows that in fact the division
directors were called to a meeting in 2006. They were asked to
recommend cuts. Now, you mentioned State grants as you gave
your very optimistic opening statement. Are you aware that they
are continuing to cut the State grants so that they can come up
with more money for remedial actions?
Ms. Bodine. I am aware that we fund State programs through
cooperative grants. We also fund State programs through the $50
million that comes out of Brownfields, and that a lot
preliminary work onsites can be done using either source.
Senator Boxer. Are you aware that people were called
together for a fly in meeting and asked how they could cut
their budget? You said you were not aware. How could you not be
aware? Aren't you in charge of the Superfund program?
Ms. Bodine. I am not micro-managing the Superfund program.
Senator Boxer. Oh, OK. So cuts coming from your division
directors would not be of concern to the person at the top? Is
that right? Is that what I am hearing?
Ms. Bodine. That is not.
Senator Boxer. So you don't know. It doesn't sound like you
know what is happening, because your own documents that you
made available to me show possible disinvestments, asking
people how they could cut. They said, well, in order to
continue cleanups, we have to cut, slow down the remedial
investigations, remedial designs, State programs, the C
program, which as I understand it brings in retired people to
help with these matters, and across the board cuts.
Madam Chair, this program is not in good shape right now.
We have someone here who doesn't even know that the district
directors are asked how to cut funds. That says to me, this
isn't about micro-managing. These are district directors. These
are the people who are close to the problem. I would just
suggest to you, we are all Senators here. We have to go back to
our States. One of the things we are very aware of is not to
lose touch with people. Don't lose touch with your district
directors or you cannot do your job.
Thank you.
Senator Inhofe. Madam Chairman.
Senator Clinton. Senator Inhofe.
Senator Inhofe. Well, first of all, you may not be aware of
that, but if you would pass on to whomever made the decision to
ask the district directors to find places to cut their budgets,
that I applaud them for doing that. I think all government
should be doing that, so I think they are doing a good job.
I would say, Madam Chairman, that we have been joined by
the Senator from Idaho. Before he is recognized for his
questions, I would say to him that we had a discussion between
the Superfund sites in Idaho and Oklahoma, and the one in
Oklahoma was much more devastating than the one in Idaho. I am
sure you will have a chance to ask some questions.
Senator Clinton. Welcome, Senator Craig.
OPENING STATEMENT OF HON. LARRY CRAIG, U.S.
SENATOR FROM THE STATE OF WYOMING
Senator Craig. Madam Chairman, thank you very much.
Susan, it is great to have you with us today.
Almost from the time I began my service in the U.S.
Congress, a great mining district of Idaho went from being
highly profitable and productive to slumping into a depressed
metals market that spun it ultimately into a Superfund site. So
Madam Chairman, literally for 22 years, I have worked with one
of the largest Superfund sites in the Nation, and the EPA our
of Region X in Seattle, so thorough and so competently that
they even brought people out to establish permanent residency
in Idaho to work specifically on that site.
We have had our troubles. It has not all gone well. There
were major human factors involved, Madam Chairman, because it
was an old smelter site and there was heavy lead in the
environment. Over the years and with the frustration involved,
I went so far as to ask the National Institute of Health to
come in and review. The National Academy of Sciences has been
in to review.
I must tell you that EPA in almost every way met the
standards. They didn't meet them in the time we would have
liked, largely because it was not their fault. It was the fault
of the litigation and the law that made it so complicated and
so cumbersome that it was in many instances because we were
always trying to find the bad buy because of legacy
environments, that we spent more time in litigation and in
court than we did in cleanup for a time. If we hadn't been
looking for bad guys and our purpose was to go out and clean it
up and bring everybody in to participate, my guess is the great
Silver Valley of Idaho and the Coeur d'Alene mining basin would
have been cleaned up years ago.
Having said that, Ms. Bodine, I am very pleased with the
progress that EPA is making, and very pleased with the
relationship that EPA has with the State of Idaho now. We have
established some landmark environments out there, some
cooperative relationships that really ought to be a template on
how you solve problems, in my opinion. I know that Tony
Hardison has worked very hard on this issue. We have what is
called the Basin Environmental Improvement Project Commission,
State and Federal cooperatively working together.
This is not just a Federal responsibility. We have shown
that there is a State responsibility. There is a cooperative
effort that can in fact streamline and make things very
productive. So I want to thank you for that.
Talk to me, if you would, and the Committee for a few
moments about how you view the relationship between EPA and the
Basin Environmental Improvement Project Commission, because in
my opinion, that is where a lot of our approaches toward
resolution of these Superfund sites ought to move, not just in
Idaho, but nationwide.
Ms. Bodine. Thank you, Senator. It is a very good
relationship. In fact, it is critical. When you look at the
Coeur d'Alene site, in size it is absolutely enormous. It deals
with multiple watersheds, multiple basins. When you are
addressing a situation like that, it is not just the mine
tailings and the environmental impacts. It is the ecological
impacts, the human health impacts. It is the entire community
involved there. Therefore, you have to have the State as a
partner to deal with and to engage, as well as the local
community. That is the only way you can address one of these
watershed-wide issues. So yes, it is not only a good
relationship. It is an absolutely critical relationship.
Senator Craig. Madam Chair, let me address one other issue
if I may, and I think, Susan, before I got here, touched on it.
Clear across the State and over in the toe, in the top of the
boot of Idaho, is another major mining area.
Ms. Bodine. Yes.
Senator Craig. It is one of the last major phosphate mining
areas in the United States. There are a lot of interests out
there trying to shut it down, plain and simple. I have been
blunt about it, and said, fine, if you want all of your
phosphate fertilizers to grow America's food crops imported
from China, so be it. That is what will happen if we can't get
this right.
EPA, the U.S. Forest Service, because it is Federal land,
permitted for the purpose of phosphate mining, with three major
mining companies in there, providing a huge supply of America's
phosphate fertilizers. And EPA has worked with them.
The downside, Madam Chairman, is one of the minerals that
comes from the process is selenium. Selenium in concentrate is
poisonous. It has caused some problems. There are tremendous
plans, tremendous efforts to bring all of that together with
multiple agencies and to keep a phosphate mining industry in
the United States.
Can you speak to us about how that cooperative and
coordinated effort has gone on?
Ms. Bodine. Again, having that cooperation is critical,
particularly as you pointed out, the land is Federal land. Our
mission is protection of human health and the environment. We
also have to work cooperatively with the Federal land managers.
When it is their land, they in fact have the lead with respect
to that property.
So again, dealing with this phosphate mine situation, all
of the agencies and the State agencies as well, have to work
cooperatively together, and that is the case in the phosphate
mine cleanups.
Senator Craig. Thank you, Madam Chairman.
Susan, thank you.
What I find in Idaho that is an active agriculture State,
mining State, now a new technology State, is that we have a
cooperative and coordinated relationship with EPA that has at
times been rocky, but in most instances highly successful. In
all instances where we have come together cooperatively, we
have improved the environment and the condition of human health
and life quality substantially from what it was originally.
So I am extremely pleased to date. I would like to redo the
Superfund law. I think it is a complicated, cumbersome system
that is reflective of the past, and not the current
environment. We all ought to be oriented toward cleanups,
instead of finding bad guys and sometimes legacies exist that
you can't find the bad guy anymore. He or she or they simply
don't exist. Our mission ought to be to clean, instead of to
litigate.
Thank you.
Ms. Bodine. Thank you, Senator.
Senator Clinton. Thank you very much, Senator Craig.
We will keep the record open.
Administrator Bodine, I at least will have additional
questions for the record. Thank you very much for being here.
We are moving now to our second panel. Obviously, we are
pleased to have such a broad cross section of panelists here
for this important issue. We are going to move immediately into
the statements from the panelists. We would appreciate you
keeping to the 5-minute rule. We have your written testimony,
and of course it will be in the record. So if you could
summarize the high points of what you wish the Committee to
hear, that would be extremely helpful.
We will go in the following order. We will start with Rena
Steinzor, then Dr. Porter, then Bradley Campbell, then Michael
Steinberg, then Lenny Siegel. So as soon as people are settled
in, we will begin with Rena Steinzor, the Jacob A. France
Research Professor of Law, University of Maryland School of
Law, and a scholar at the Center for Progressive Reform.
Thank you very much, Professor Steinzor, for being here.
STATEMENT OF RENA STEINZOR, JACOB A. FRANCE RESEARCH PROFESSOR
OF LAW, UNIVERSITY OF MARYLAND SCHOOL OF LAW; SCHOLAR, CENTER
FOR PROGRESSIVE REFORM
Ms. Steinzor. Madam Chairwoman and members of the
Committee, thank you for inviting me.
Superfund badly needs your attention, and I congratulate
the Committee for reviving the constitutional check and balance
of rigorous oversight. I request that our report, The Toll of
Superfund Neglect, be included in the hearing record.
Senior EPA political appointees and industry
representatives may or may not understand how Superfund is
supposed to work. They should understand how it does work.
Unfortunately, they are not sharing either explanation with
you.
The truth is that Congress intended the program to be a
three-legged stool: one, identification of the worst sites;
two, a multi-billion dollar fund to prime the pump for cleanup
and pay costs at orphan sites; and three, strict joint and
several liability to give parties compelling incentives to
initiate cleanups.
Over the last several years, EPA's political leadership has
sawed the first leg in half, dumping many Superfund sites into
the laps of underfinanced States; removed the second leg of
public funding; and left the third leg, enforcement, to rot to
its core. No wonder the program is in trouble.
To obscure this dismal reality, EPA officials and industry
representatives have created five legends about Superfund. The
first legend is that long-neglected Superfund sites are not
harming anybody and can safely be neglected. These assertions
are ludicrous. Indeed, if the people who advance them truly
believe they are true, we would have a more honest debate if
the question was whether we should abolish Superfund. No one
wants to go there, and for good reason.
Thousands of uncontrolled Federal and State Superfund sites
plague communities across the Nation. Most sites are located in
or near heavily populated urban or suburban neighborhoods. Many
have languished on the Superfund national priorities list for
two decades. Often, no more than holes in the ground, they are
filled with a noxious mix of chemicals leading into the air,
soil or water. The sites sit stop aquifers used for drinking
water, spill into rivers and streams used for swimming and
recreation, and contaminate soil where children play. Millions
of people live close to the sites, including hundreds of
thousands of children. Many of these communities are low income
and comprised of people of color.
The second legend, contending that cleanup has slowed
because EPA did the easy sites first, is half true. It is
difficult to complete cleanup at the biggest sites, but up
until a few years ago our government rolled up its sleeves and
deployed with fervor when confronted with a difficult job.
Agencies did not come to Congress urging you to decrease their
funding.
This bizarre development brings us to the third legend,
that EPA has all the money it needs. The broad-based industry
taxes that support the program expired in 1995. President
Clinton asked Congress to extend them every year he was in
office. The Bush administration not only opposed extension of
the tax, it has addressed chronic shortfalls by drawing on
general taxpayer revenue and steadily lowering annual
appropriations. In constant dollars, Superfund appropriations
are 40 percent lower than the amount specified in the last
reauthorization.
Glossing over the implication of these missing resources,
EPA and industry representatives argue that Superfund taxes are
not only unnecessary, but onerous. The truth is that before the
taxes expired, they raised revenues that amount to 1.79 percent
of the 2006 profits of just six of the Nation's largest oil and
petrochemical companies.
As for the last legend, that responsible parties are
already shouldering the Superfund burden, we confront another
half-truth. At sites where orders were issued before today's
enforcement doldrums, responsible parties are moving cleanup
along. But at countless other sites, the Nation's most
prominent and richest corporations have ignored or stonewalled
their obligations. For the sake of those living near these
sites across the Country, I urge you to support the
reinstatement of Superfund taxes and continue your rigorous
oversight of EPA implementation.
[The prepared statement of Ms. Steinzor follows:]
Statement of Rena Steinzor, Jacob A. Francis Research Professor of Law,
University of Maryland School of Law; Scholar, Center for Progressive
Reform
Madam Chairwoman and members of the Committee, thank you
for inviting me to testify today. Superfund badly needs your
attention, and I congratulate the Committee for reviving the
constitutional check and balance of rigorous oversight.
I have worked on Superfund for 25 years. I was subcommittee
counsel for Representative James J. Florio, widely perceived as
the ``father'' of Superfund, when Congress last reauthorized
the program. I served as a senior staff person on the National
Commission on Superfund, which included the CEOs of all major
stakeholders and negotiated a consensus reauthorization of the
Superfund statute,\1\ only to have its work washed away by the
Contract with America. I have represented clients liable at
Superfund sites and counseled clients who wanted to avoid that
fate. I teach Superfund law to students and have written five
scholarly articles on the subject, as well as a report entitled
The Toll of Superfund Neglect, which is the focus of my
testimony today.\2\ The report was released by the Center for
Progressive Reform\3\ and the Center for American Progress\4\
and is available at http://www.progressivereform.org/articles/
Superfund--061506.pdf. The report analyzes the environmental
conditions and demographics of 50 of the worst sites in the
nation's ten most populous states.\5\ A list of the sites we
studied is attached as Appendix A to my testimony. I
respectfully request that the report and its attachments be
included in the record for this hearing.
---------------------------------------------------------------------------
\1\Comprehensive Environmental Response, Compensation, and
Liability Act (CERCLA), 42 U.S.C. 9601 et seq.,
\2\I appreciate the assistance of Margaret Clune, CPR policy
analyst, in preparing the original report and my research assistants,
Michael Wright and Xochitl Strohbehn, students at the University of
Maryland Law School, who helped me prepare this testimony.
\3\The Center for Progressive Reform (CPR) is an organization of 45
academics who specialize in the legal, economic, and scientific issues
that surround Federal regulation to protect public health, natural
resources, and worker safety. One component of the Center's mission is
to circulate academic papers, studies, and other analyses that promote
public policy based on the multiple social values that motivated the
enactment of our nation's health, safety and environmental laws. We
seek to inform the public about scholarship that envisions government
as an arena where members of society choose and preserve their
collective values. We reject the idea that government's only function
is to increase the economic efficiency of private markets. For more
information, please see http://progressivereform.org.
\4\The Center for American Progress is a progressive think-tank
dedicated to improving the lives of Americans through ideas and action.
It is committed to creating a long-term, progressive vision for
America--a vision that policymakers, thought-leaders and activists can
use to shape the national debate and pass laws that make a difference.
For more information, please see http://www.americanprogress.org.
\5\The report selected the 50 sites on the basis of the severity of
contamination, their proximity to people, whether construction has been
completed at the facility, and other criteria. See pages 157-162 of The
Toll of Superfund Neglect for a full description of our selection
methodology. In the year since the report was issued, construction has
been completed at two sites on the list: the ALCOA (Point Comfort)/
Lavaca Bay in Texas and the UGI Columbia Gas Plant in Pennsylvania.
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LEGENDS
Senior EPA political appointees and industry
representatives may or may not understand how Superfund is
supposed to work. They should understand how it does work.
Unfortunately, they are not sharing either explanation with
you. Instead, they have created five Superfund legends that
have little relationship to history or reality:
1. Few if any sites endanger public health.
2. Because EPA has only recently gotten down to the worst,
most complex sites, cleanup has slowed, with the construction
phase of remedial action\6\ completed at only 24 sites in 2007,
as compared to 87 sites in 2000.\7\
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\6\As the Subcommittee is aware, completing construction does not
mean that a site is finished, and does not pose a risk to the public.
Especially where remedies are temporary, long-term monitoring,
operation and maintenance are essential to ensure that risks remain
contained.
\7\An EPA chart submitted to the subcommittee shows 47
``construction complete'' sites in 2001, 42 in 2002, 40 annually in
2003-2005, and 24 in 2007. These numbers are substantially less than
annual figures for the preceding 6 years which were 68 (1993), 61
(1994), 68 (1995), 64 (1996), 88 (1997), 87 (1998), 85 (1999), and 87
(2000).
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3. EPA has enough money without renewal of the Superfund
tax.
4. Superfund taxes are onerous.
5. Companies that created the sites are paying to clean
them up.
TRUTH
The truth is that Superfund's creators intended it to be a
three-legged stool:
1. systematic identification and prioritization of
abandoned toxic waste sites all over the country that require
cleanup;
2. creation of a multi-billion dollar fund supported by
industry taxes to both prime the pump for cleanup and pay for
so-called ``orphan'' sites; and
3. strict, joint, and several liability that gives
responsible parties that created the sites compelling
incentives to clean them up and allows Government to recover
most of the money spent upfront.
Over the last several years, EPA's political leadership has
sawed the first leg in half, removed the second leg, and left
the third leg to rot to its core. No wonder the program is in
trouble.
The assertion that long-neglected Superfund sites are not
harming anybody and can safely be neglected is ludicrous.
Indeed, if the people who advance this legend believe it to be
true, we would have a more honest debate if we discussed
whether we could safely wind down Superfund, ending the program
within some fixed timeline. No one wants to go there, and for
good reason.
Thousands of uncontrolled Federal and State Superfund sites
plague communities across the Nation. Our report offers a
snapshot of these conditions. Most of the 50 sites we studied
are located in heavily populated urban or suburban
neighborhoods. Many have languished on the Superfund National
Priorities List for two decades. Often no more than holes in
the ground, they leak toxic soups comprised of hundreds of
chemicals into the air, soil, or water, including PCBs,
creosote, lead, polycyclic aromatic hydrocarbons, chromium,
copper, zinc, cadmium, arsenic, mercury, and trichloroethylene.
The sites sit atop aquifers used for drinking water, leak toxic
chemicals into rivers and streams used for swimming and
recreation, contaminate soil where children play with hazardous
wastes, and in one particularly tragic and egregious case,
provide the foundation for an apartment building that is still
occupied.\8\
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\8\See page 71 of The Toll of Superfund Neglect for a description
of the Normandy Park Apartments site in Hillsborough County, FL.
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Millions of people live in the census tracts\9\ where the
sites are located, including hundreds of thousands of children.
Many of these communities are low income and comprised of
people of color. Of the 50 sites we studied, 60 percent were
located in neighborhoods where households reported median
incomes in the range of $40,000 and some 26 percent were in the
midst of populations comprised of 40 percent or more racial or
ethnic minorities.
---------------------------------------------------------------------------
\9\Census tracks are small geographic areas averaging 4,000 people.
See https://ask.census.gov.
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The second legend, contending that cleanup has slowed
because EPA did the easy sites first, is half true. It is
difficult to complete cleanup at the biggest, most contaminated
sites, such as (1) the Operating Industries site, a 190-acre
municipal landfill in the Los Angeles suburbs where millions of
gallons of liquid hazardous waste was poured over densely
packed household garbage, producing leachate that contains
vinyl chloride, benzene tetrachoroethylene, and heavy
metals\10\ or (2) the 160-acre Lawrence Aviation Industries
site in Suffolk County, New York, where the owner poured
unknown quantities of TCE and acid sludges onto the ground and
into two unlined lagoons.\11\
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\10\See page 38 of The Toll of Superfund Neglect for a description
of the Operating Industries site.
\11\See page 60 of The Toll of Superfund Neglect for a description
of the Lawrence Aviationsite.
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But up until a few years ago, our Government rolled up its
sleeves and deployed the complicated technology and significant
resources that are required to get difficult jobs done.
Agencies in charge of such efforts did not come to Congress
demanding fewer resources as these challenges became more
daunting, as EPA now does.
This bizarre development brings us to the third legend: EPA
has all the money it needs to complete cleanup. The broad-based
industry taxes that support the program expired in 1995.
President Clinton asked Congress to extend them every year he
was in office, and every year, the Congress refused the
request. The Bush administration opposes extension of the tax
and has made up chronic shortfalls by drawing on general
taxpayer revenues and steadily lowering annual appropriations.
In fiscal year 3, EPA ran through all the money left over from
the years when the program was supported by industry taxes and
the program has been exclusively supported by general revenues
ever since.
Not only are the wrong people paying to support a program
that is starved for resources, crucial tasks are increasingly
left undone. In constant dollars, revenues appropriated for the
Superfund program now stand at levels 40 percent lower than the
amounts Congress specified when it last reauthorized the
program in 1986.\12\
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\12\See page 3 of the testimony of Katherine N. Probst, Senior
Fellow and Director, Risk, Resource, and Environmental Management,
Resources for the Future, before this Committee at a Superfund
oversight hearing held on June 15, 2006, available at http://
epw.senate.gov/public/heating--statements.cfm?id=257181.
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As any businessperson knows, it takes money to make money.
Not only are there hundreds of sites at the Federal level that
need investigation so cleanup plans can be made, thousands of
additional sites have ended up in the states' laps. Even if
they wanted to, EPA and the states cannot go to court to demand
responsible party cleanups without first completing these
investigations and writing cleanup plans and, without more
money, they have little hope of cleaning up orphan sites where
no responsible party is available. Yet EPA has precipitously
cut the funding for states to do the technical analysis
necessary to determine what should be done about these
hazards.\13\ The result is that the sites are swept out of
sight, getting worse and worse as their public health and
environmental implications are buried in a sea of mind-numbing,
``don't-worry-be-happy'' EPA statistics.
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\13\For information on State funding shortfalls, see EPA, Office of
the Inspector General, Evaluation Report No. 2004-P--00027, Some States
Cannot Address Assessment Needs and Face Limitations in Meeting Future
Superfund Cleanup Requirements (September 1, 2004), available at http:/
/www.epa.gov/oig/reports/2004/2004--01--2004-P--00027.pdf.
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Let me give you another example. I teach at the University
of Maryland School of Law in Baltimore. This past spring, Dr.
Joshua Sharfstein, the City's Public Health Commissioner,
closed a popular baseball field called Swann Park after old
documents came to light revealing that in the late 1970's,
arsenic from a nearby Allied Signal pesticide plant had blown
onto the park, insinuating itself into the soil at toxic
levels. The Maryland Department of the Environment managed to
overcome the funding gap that has paralyzed its State Superfund
efforts, and ordered that the park be remediated. Undoubtedly,
the saga of Swann Park is but the dusting of snow on top of the
iceberg, as we will learn over the next decades unless we
resuscitate both the Federal and State Superfund programs.
The fourth legend is that Superfund taxes are too onerous
and corporate responsible parties are already paying their fair
share through cleanups ordered by past consent decrees.
Glossing over the implications of these missing resources, EPA
and industry representatives argue that the Superfund tax would
amount to double dipping against these responsible parties.
The truth is that before they expired in 1995, Superfund
taxes raised revenues of approximately $1.5 billion annually,
or $4 million daily, from taxes on crude oil and chemical
feedstocks and through a broad-based corporate tax. As the
following chart shows, annual Superfund tax revenues amount to
1.79 percent of the 2006 profits of just six of the nation's
largest oil and petrochemical companies. The CEO salaries of
these six companies alone would cover almost 6 weeks of missing
revenues.
[GRAPHIC] [TIFF OMITTED] T3576.174
.epsAs for the assertion that responsible parties are
shouldering the large majority of the burden for cleaning up
Superfund sites, we confront yet another half-truth. At sites
where cleanup orders were issued well before today's
enforcement doldrums, responsible parties are moving cleanup
along, often at a clip faster than government-funded cleanups.
But at countless other sites, some of the nation's most
prominent corporations have backed off their obligations,
apparently waiting for Federal and State enforcement officials
to come compel them to address their responsibilities.
An analysis by the Center for Public Integrity completed in
2007 relied on confidential EPA enforcement material to compile
a list of the 100 large companies that have the most Superfund
sites, breaking down this data to show the numbers of sites on
the list that remain unaddressed years and even decades after
listing.\14\
---------------------------------------------------------------------------
\14\See Center for Public Integrity, Wasting Away, Superfund's
Toxic Legacy (2007), a series of reports, all of which are available at
http://www.publicintegrity.org/Superfund/.
---------------------------------------------------------------------------
For example, the 75-acre Universal Oil Products site in
East Rutherford, New Jersey was first listed in 1983 and is
heavily contaminated with 4.5 million gallons of waste solvents
and solid chemical wastes. Honeywell, the only responsible
party at the site, is leading cleanup efforts, which have
crawled along for a quarter century. According to the most
recent EPA site description posted on the web this past
February, an investigation into contamination of onsite
wetlands and creek areas did not begin until 2005 and still are
not completed.\15\
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\15\Universal Oil Products, New Jersey, EPA ID# NJD002005106,
available at http://www.epa.gov/region02/superfund/npl/0200101c.pdf.
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CONCLUSION
More than any other environmental program, Superfund is a
victim of compassion fatigue and political doublespeak. The
Federal Government and responsible parties have dragged their
feet on cleanup for so long that it has been impossible for the
public at large to maintain the level of outrage that propelled
the birth of the program in 1980 and Congress' decision to
increase Superfund resources sixfold in 1986. In many
locations, cosmetic changes have been made ? rusting barrels
have been removed from the surface and vegetation has reemerged
on what were moonscapes 20 years ago. Beneath the surface,
though, little has really changed. The toxic stews continue to
circulate, moldering and spreading, adding chemicals to
aquifers, rising to the surface of the soil as the land freezes
and thaws, and releasing methane and other volatile gases.
For the sake of those living in the census tracts
containing the 50 sites detailed in this report, as well as the
untold other people living near hazardous waste sites across
the country, CPR urges this Committee to support the
reinstatement of Superfund taxes and continue its rigorous
oversight of the implementation of this vital program.
Thank you again for inviting me.
[GRAPHIC] [TIFF OMITTED] T3576.175
Response by Rena Steinzor to an Additional Question
from Senator Boxer
Question. Your 2006 report found that some si1es with
potentially responsible parties have waited the longest for
cleanup. In your opinion, what accounts for this, since EPA
knows who should be responsible for cleaning up these sites?
Response. Our report concludes, and I continue to believe,
that EPA lacks the political will and the resources to mount an
effective enforcement effort, undermining the liability track
of the Comprehensive Environmental Response, Compensation, and
Liability Act (CERCLA or Superfund) and congressional intent
that the polluter should pay for cleanup. EPA lacks the
political will in the sense that too many career staff believe
that they do not the support of political appointees to demand
that responsible parties undertake the financial and
operational responsibility for cleanup and to go to court if
those parties refuse to sign enforceable agreements. The Agency
lacks the resources because Superfund taxes expired in 1995,
and EPA too often Jacks the funds to assemble the technical in
formation to support its case in court.
------
Responses by Rena Steinzor to Additional Questions
from Senator Inhofe
Question 1. One Thousand two hundred and eleven of the
1,569 sites on the NPL were listed prior to 1991. The Superfund
program has been successful at cleaning up many of these sites.
Isn't it a result of the program and the addition of State
programs that the number of new sites listed in declining?
Response. I believe that EPA and the states have
consciously decided not to list additional sites because they
do not want to increase their Superfund responsibilities. These
decisions are made not on the basis of environmental
conditions, but rather on the basis of bureaucratic
convenience. The program has achieved notable success. The
trend toward lower numbers of listings do not provide reliable
evidence that the need for a robust program to continue is
waning.
Question 2. In your testimony you comment of the argument
(sic) that 10 reinstate the Superfund taxes on the oil and
chemical industries would be ``double dipping. `` To rebut this
you point to the salaries of the CEOs as justification. Do you
believe because these companies pay their CEOs high salaries,
they should be subject to unfair taxes?
My testimony observes that requiring specific companies to
pay to clean up sites, and also asking some of those same
companies to pay taxes to support the program, is exactly the
scheme that Congress in tended and does not constitute ``double
dipping'' as some industry representatives have argued.
Congress decided that it was fair to impose costs on industry.
especially the oil and chemical industries, because they played
a large role in creating the sites initially and avoided the
costs of safer waste disposal. Congress rejected the idea that
these costs should be borne primarily by the general taxpayer.
Oil companies are enjoying a period of enormous, windfall
profits, and pay their CEOs very large salaries. The large size
of those profits and salaries shows that they can easily afford
reinstatement of Superfund taxes.
Question 3. In your testimony, you refer to a ``bunch of
mind numbing 'don't-worry-be-happy' EPA statistics'' that EPA
allegedly uses to conceal risks to human health. Can you give
some specific examples of this?
Response. Ample examples of this phenomenon can be found in
fiscal year Superfund Annual Report, Building on Success:
Protecting human Health and the Environment, available at
http://www.epa.gov/oerrpage/superfund/accomp/pdfs/sf annual
report 2007.pdf
Senator Clinton. Thank you very much, Professor.
We move now to Dr. J. Winston Porter, President of the
Waste Policy Center.
STATEMENT OF J. WINSTON PORTER, PRESIDENT,
WASTE POLICY CENTER
Mr. Porter. Thank you, Madam Chairman.
It is a real pleasure to be here today. I used to run this
program, as some of you know, a number of years ago, including
Senator Lautenberg certainly. I want to talk a little bit about
what I see needs to be done to improve the program.
Certainly, ever since my day, there has been an issue of
the pace of the program. I would say in general sites take too
long and cost too much to get cleaned up. My background is
project management engineering and things of that nature, so I
want to come at it from that angle in terms of my remarks.
Superfund is not an exact science and a lot of engineering
judgment is required to clean up the sites. So I am going to
talk about three phases, very briefly: the study phase of
Superfund; the selection of remedy phase; and the construction
phase.
Now, at two thirds of the sites, construction is complete,
so we have done something right because two thirds of the sites
have been actually completed. On the study phase, the most
important thing is to set deadlines. Amazingly, on a program of
this type, we don't seem to have firm deadlines for cleaning up
the site. I think that is fundamental. I grew up in the
engineering world, and I think we should share with the world,
and I tried to do it in my way, is to put in memo form for
everyone to see what is my deadline for site X, Y, and Z. I
have a lot of respect for Susan, and I think I would like to
see them do more of that.
It is very important to identify alternatives. There are
only three or four alternatives in a Superfund site, or maybe
five or six. There are not thousands. It is important early in
the game to identify the alternatives and for the responsible
parties and others to get together and set deadlines to deal
with the work.
Let me give you a couple of quick examples of catching
somebody doing something right, as they used to say. The Rocky
Flats site near Denver is a large Federal facility site. It was
scheduled to finish in something like 2040 or 2030, and cost
billions and billions and billions of dollars. The engineering
firm got together with the Department of Energy and the State
and others and they agreed to finish in 2005. So from 1995 to
2005, they worked toward a specific deadline. They made it.
Everyone was happy and they saved billions of dollars. So it
can be done.
I would like to see us actually work harder at identifying
where things have gone right. Some things have gone right. So
that is a good example.
We need to have much more sense of urgency. The PRPs,
responsible parties, should do the work. I would like to make a
little bit of a sad commentary on the industrial people. That
is, I would like to see more senior management involved with
these companies. When I go to these sites, I see a lot of
scientists and a few engineers and lots of lawyers, and that is
all fine. We need all those people, but I think those sites
would move much more quickly if the senior management of those
companies was more involved in the cleanup. The theme I am
trying to weave here is responsibility put on real individuals.
That is the way you finish projects.
I believe the removal program, as Susan said, is very
important because it has in fact worked. Nine thousand removals
have been done. That means going out and dealing with obvious
problems. There is often an obvious problem at these sites,
leaking barrels or things of that nature.
As far as selection of remedy, I would like to also make
another suggestion in terms of responsibility. Since my day and
others' days, the decisionmaking power has been delegated down
further and further into the EPA regions. I would like to see
the regional administrators, the political appointees by the
President, be it Clinton or Bush or whomever, to have a person
who is their agent to get that site cleaned up and to deal with
that site. I think we need to go back to that. That person
should have a broad overview. That person may not be able to
deal with all the technical factors, the micro-management, but
the Superfund law requires things like community acceptance,
like cost-effectiveness, State impacts, et cetera. They can
talk about the role of land use.
Another quick example is the Rocky Mountain Arsenal near
Denver that I worked at quite a few years ago. The Army decided
they were going to make that huge arsenal into a wildlife
refuge, as opposed to putting houses there. That immediately
made the site much more quickly cleaned up. If you go out to
Denver nowadays, you will find a very nice wildlife refuge at
that site. It would probably not be finished until now if we
had tried to put houses there.
The construction phase let me close with that. The $1.2
billion which was mentioned this morning has been around for a
while, and Rena is certainly right. In constant dollars, it is
not as great as it used to be, but we have also cleaned up two
thirds of the sites. This program doesn't need to have a flat
budget in perpetuity. We need to put more and more focus on
finishing the sites.
I would like to be sure that Susan and others are really
doing it, and I am a big fan of hers, but really doing a good
job of being sure that the money is going toward cleanups.
There are 3,000 staff members at EPA working on Superfund. That
is one out of every four or five EPA employees working on
Superfund. I am not sure it is one fourth of the problems in
this Country environmentally speaking, so that caught my
attention a little bit.
Congress might want to consider supplemental appropriations
for specific projects if they need it, but I don't think a
wholesale more money is needed. If anything, Superfund has had
a lot of money over the years. I used to get $2 billion year in
and year out for that and other hazardous waste programs. What
I think we have done is frankly created a fairly large
bureaucracy in the program and we need to be much more focused
on the job at hand.
In summary, I want to offer results over process. Speeding
the pace has many benefits. The public is much happier.
Hundreds of times I have heard in my official capacity and my
consulting practice how upset the public is. Why does it take
so long, in California or New York or wherever? I think they
will be much happier if we look like we are really focusing on
finishing. The costs to industry and taxpayers are less. Time
is money. Sites that take 10 or 15 or 20 years obviously cost
more than a site that is completed in three or four or 5 years.
And finally, the benefits. If these sites are so bad, and
some of them are, why do we take forever to clean them up? It
seems to me kind of counter-intuitive. If a site is bad enough
to get on the NPL, the national priorities list, we should try
to move in a matter of years, not decades, to get it cleaned
up.
So that is my testimony, Madam Chairman. Thank you.
[The prepared statement of Mr. Porter follows:]
Statement of J. Winston Porter, President, Waste Policy Center
Madame Chairman, my name is J. Winston Porter, and I am
president of the Waste Policy Center in Leesburg, VA. The WPC
is a private research and consulting organization which deals
with management, policy, and technical issues in the areas of
solid and hazardous waste management, as well as other
environmental matters. From 1985 to 1989, I was the EPA's
Assistant Administrator for Solid Wastes and Emergency
Response.
It is a pleasure to be here today to provide testimony on
the pace of the cleanup of Federal Superfund sites. I will make
a number of recommendations to improve this pace.
In my testimony I will draw on over 20 years of Superfund
experience, including management of the EPA program as well as
consulting activities with various Federal agencies and states
and numerous private parties. My professional background also
includes the fields of chemical engineering and project
management. I will start with a brief background statement,
followed by my recommendations related to Superfund's study,
remedy selection, and remedy construction phases in relation to
improving the pace of the cleanup program.
BACKGROUND
Briefly, the current status of EPA's Superfund program is
that about two-thirds of the 1,550 national priority list sites
have reached the construction completed (remedy installed)
phase, about 400 sites are in the remedy design or construction
phases, and approximately 150 sites are in the study phase.
In addition, many thousands of ``emergency removals'' have
been conducted at Superfund sites in order to directly and cost
effectively deal with obvious problem areas. This program has
been perhaps Superfund's biggest success story.
It is also important to note that the EPA has a significant
number of Superfund sites in the remedy construction phase for
which both potentially responsible party (PRP) and Federal
funds are limited.
In addition to the EPA, both the Departments of Energy and
Defense have major Superfund-related programs underway. The DOE
work primarily involves a few dozen very large facilities, most
of which have been components of the nuclear weapons program.
The DOD sites are much more numerous, although usually less
complex, and include both Superfund and base closure
activities.
So, a large amount of work is underway or has been
completed by dedicated Federal and State personnel as well as
PRPs and various private contractors. Much has been achieved
under the Superfund program, but much remains to be done. For
this remaining work it is important to improve program
efficiency in order to ensure timely and technically sound
cleanups in a more cost-effective manner.
As we strive to improve the Superfund program, let me first
make several general observations which will serve as the bases
for my later recommendations.
First, Superfund is not an ``exact science.'' Science and
technology are very important in addressing Superfund waste
sites, but selecting a sound remedial action at a site requires
a good dose of common sense and ``engineering judgment'' since
no two sites are the same. The Superfund regulations themselves
require decisionmakers to consider such elements as cost
effectiveness, implementability, and State and community
acceptance in selecting a remedy. These are not primarily
technical issues.
Second, while much has been accomplished by Superfund, site
study and remedial activities generally take too long and cost
too much.
Third, the trend in recent years to use the Superfund
program for only the most complex and hazardous sites is sound.
Most waste sites in the country can now be managed under other
EPA or State programs, brownfields activities, and various
voluntary cleanup processes. The voluntary cleanup programs
should, in particular, be emphasized.
Most of the following recommendations will be directed at
the EPA Superfund program, but will also have important
implications for other Federal agencies. My comments will be
divided into study, remedy selection, and construction phases.
THE STUDY PHASE
While the study projects related to Superfund sites are a
decreasing part of the overall program, such activities are
still very important to overall program success. Superfund
projects usually begin with a ``remedial investigation/
feasibility study'' (RI/FS). This complex study process is
described in some detail in Superfund's primary regulation ?
the National Contingency Plan.
Very briefly, the RI portion calls for characterization of
the site in terms of its natural features, as well as the
amount and location of contamination and likely risks of such
contamination to both public health and the environment. The FS
part involves identification of alternative remedial actions,
and then comparison of such alternatives against a set of nine
remedy selection criteria.
Based on the RI/FS process, as well as substantial
stakeholder input, EPA then selects a remedy for the site
through a ``record of decision'' (ROD) process.
In general, the RI/FS process has become steadily more
complex and lengthy over the years, for almost all types of
sites. My recommendations for conducting faster, less costly,
and more technically sound RI/FSs are as follows:
1. Most importantly, timeframes for completing the study phase should
be agreed to by the EPA and other key participants, such as
PRPs.
Unfortunately, at many sites the study work simply meanders
around for many years without much focus or mid-course
corrections, leading to wasted time and money, and ,in some
cases, an unimaginative or non-cost-effective remedy selection.
Frankly, part of this lengthy process has to do somewhat with
the fact that Superfund has become something of a ``jobs
program'' for various consultants, lawyers, and governmental
agencies. All of these specialists are needed, but their work
needs to be more directed toward results rather than complex
processes.
Stated differently, there is often little sense of urgency
in completing the study phase due, in part, to the lack of a
senior ``champion(s)'' to complete the work. This is, or
course, very frustrating to the communities involved. I would
like to see such ``completion champions'' developed in both the
governmental and private sectors at Superfund sites.
Some very complex Federal and private sites will require
longer study periods, but for most sites about 2-3 years should
be adequate to produce a sound RI/FS.
To improve matters, early in the RI/FS process the EPA,
PRPs, and other relevant organizations, should work together to
set a clear goal to complete the study activities. This end
date can be modified if necessary, but it is important for all
to understand that, like almost every other type of engineering
project, schedule (and budget) are key factors and should be
adhered to.
There are a number of examples of the success of target
setting in Superfund, but perhaps the most dramatic has been
the DOE Rocky Flats Closure Project, near Denver. For this site
the ``completion contractor,'' Kaiser-Hill, and the DOE agreed
upon a 2005 target date for all study and remedy implementation
work to be completed. If successful, the contractor was to
receive a completion bonus. Not only was the project completed
on time, but billions of dollars and many decades of time were
saved. This work, of course, required good cooperation among
the DOE, EPA, the State of Colorado, local stakeholders, and
the contractor. The firm completion target date greatly focused
this cooperation.
Finally, this project illustrates the importance, for both
study and construction work, of the site personnel developing
what I have referred to as a ``culture of completion.''
2. When the RI/FS process begins one of the first orders of business
should be to use experienced staff and key stakeholders to
quickly identify about 4-7 major remedial action alternatives.
During this phase use should be made of EPA's list of
``presumptive remedies'' for many types of problems, as well as
experience gained at similar Superfund sites.
The selected set of alternatives can always be modified
during the study phase, but the current process which often
involves ``taking data'' for many years before detailed focus
on remedial options often leads to overly costly information,
much of which may not be needed. Also, since the data
collection is often not focused on comparing alternative
remedies, the key information to compare such alternatives is
sometimes missing.
An iterative approach should be used where information
collection and analysis of remedial alternatives work
cooperatively in order to achieve sound comparisons of options,
leading to a good remedy selection.
Even more importantly, the identification of key options
early in the study process allows the decisionmakers and
stakeholders to begin their dialog on the non-technical factors
which are contained in the remedy selection criteria. These
include such items as cost-effectiveness, implementability, and
State and community acceptance. Many times these types of
factors are at least as important as the strictly technical
matters, such as precise levels of contamination for dozens of
substances.
3. Significantly streamline the process for developing the myriad of
deliverables at Superfund sites.
While certain documents are clearly needed to guide the RI/
FS activities, the long, tedious process of developing complex
draft and final work plans, for example, should be expedited.
This is also true of dozens of other ``deliverables'' which
take so much time at Superfund sites, many of which should be
quite standard by now. It might be helpful to revisit the need,
or at least the complexity, of such deliverables.
To increase the pace of Superfund site cleanups, we need to
develop a ``culture of completion,'' as opposed to a ``culture
of deliverables.'' It might even make sense to develop
incentives of some type to encourage such completions.
There are several perverse effects which have led to such
lengthy periods for document development and review. One has to
do with the fact that Superfund is about the only Federal
environmental program where responsible parties have to pay for
additional oversight beyond that which salaried regulators
normally provide. Thus, if a group of PRPs are forced to give
EPA, say, $5 million for oversight, then EPA can retain
contractors to provide hundreds of pages of ``comments'' on
such items as the aforementioned work plans. So, we now have
dueling contractors battling over many pages of detailed text,
before work can even begin.
One near term answer would be for review periods and
oversight dollars to be reduced substantially, so participants
can focus more on results than elaborate processes.
4. The PRPs should be encouraged to conduct the RI/FSs themselves with
their own contractors and under EPA's overall supervision.
While this concept has been largely accepted and
successfully promoted by the EPA, more could be done to
encourage PRPs to do the study work, particularly where PRPs
would commit to more reasonable timeframes than EPA often takes
for its own studies.
A key aspect of PRP-conducted studies has to do with
selection of appropriate consulting firms to conduct the
necessary RI/FS activities. Such contractors have a difficult
role in that they need to be responsive to their client, the
PRPs, but must also provide the objective and professional work
needed by EPA to allow selection of a sound and cost-effective
remedy for the site in question.
The key is for the EPA, the relevant state, and the PRPs
and their consultants to develop a cooperative and results-
oriented relationship for the site work.
THE SELECTION OF REMEDY PHASE
The RI/FS process discussed above presents the
decisionmaker with detailed comparisons of alternative remedial
actions, from which this person must select a remedy, present
it to the public for comment and make a final determination.
The selection of protective, cost-effective remedies is, of
course, a key to the overall success of the Superfund program.
My suggestions in this area are as follows:
1. The decisionmaker should be a very senior EPA official
who can oversee all of the considerations which go into remedy
selection. As noted earlier, technical factors are very
important in this process, but non-technical factors are also
key. For example, if there is very strong community opposition
to a particular remedial action, or if a remedial option is not
cost-effective, such factors must be considered by the
decisionmaker.
During my tenure as an EPA assistant administrator I made a
number of ROD decisions, mainly at ``nationally significant
sites.'' Most decisions I delegated to the ten EPA regional
administrators (RAs). However, over the years the ROD decision
responsibility has, in most cases, been delegated further down
the line in the EPA regions.
My own view is that the RA should usually be the
decisionmaker in this important process since he or she is the
one who can speak for the region and has the position and
stature to consider all aspects of the problem, while
``pushing'' the staff to provide the necessary information to
complete remedy selection expeditiously.
2. The role of expected land use should be an important factor in
selecting a remedy.
While all remedies should be protective, it does not make
much sense to demand that a cleanup be sufficient for, say, a
children's daycare center, when the site is slated for use as a
golf course, or a factory, or a wildlife preserve. All of these
uses have their own requirements, so we do not need a one-size-
fits-all approach to waste sites. The goal should be for a site
to always be protective, so the remedial action may need to be
modified at a later date if the site use changes dramatically.
During Superfund's history one of the better examples of
the role of land use in remedy selection has to do with the
DOD's Rocky Mountain Arsenal in Colorado. For this site, the
DOD decided ultimately that the land use would be for a
wildlife refuge, not residential housing. Once this decision
was made the DOD, Shell Oil, EPA, and the State and local
stakeholders worked together to select the remedy and move
quickly into the implementation phase, and a important wildlife
refuge is the result.
Another DOD example may also be instructive with respect to
the land use issue. This has to do with the DOD's Superfund-
related remediationsites versus those conducted under the base
closure program. Simply stated, the base closure cleanups,
including the selection of remedy, seem to proceed much faster
than those related to Superfund. One of the reasons, I believe,
has to do with the fact that local communities and others are
usually highly motivated to finish base closure cleanups in
order to bring the affected land into productive use. The same
time pressure often does not exist with Superfund remedial
activities.
THE CONSTRUCTION PHASE
As noted earlier, the major activity these days has to do
with the construction phase at Superfund sites. About 400 sites
are in the phase where the selected remedy is being either
designed or constructed. Currently, this is also the most
controversial phase in that EPA apparently does not have
sufficient funds to expeditiously complete all of the
construction work now planned.
This is particularly true for so-called fund-financed sites
where EPA must install the remedy itself as there are
insufficient willing and able PRPs to conduct this work at some
sites. This issue is further compounded by the views of some
that at a significant number of sites the community may not be
fully protected since construction funds are not readily
available.
The following are my recommendations on these construction-
phase issues:
1. The roughly $1.2 billion dollars which is annually
appropriated to EPA by Congress should be looked at very
carefully by EPA senior management to ensure that the highest
priority is given to protecting human health and the
environment by ensuring that Superfund sites are completed.
2. If Congress is satisfied that EPA has done all it can do
to squeeze out funding for as many construction sites as
possible, then it might consider a supplemental appropriation
to EPA to focus on additional construction activities.
3. The EPA might selectively revisit the ROD decisions made
at selected sites to see if some savings can be made based on
new information or technology.
4. Although I suspect that this is already being done, that
portion of the site which may provide actual, near term risk to
the community should receive very high priority for funding.
5. While aiming at the highest risks is always the most
important priority, I personally believe that where sites can
be finished for modest sums of money, such funding should be
considered, as there are usually site ``carrying charges''
which can then be reduced.
6. The EPA and others should be creative in finding non-
Federal funds for completing sites. In some cases, local
developers or others may be so interested in having access to a
completed site that they may be interested in helping
financially. This type of financial driver has, of course, been
instrumental in dealing with brownfields sites, which can often
be very valuable when cleanup measures are completed.
7. Other creative measures should be pursued in the future
to minimize costs and to develop more creative financing. A
good example is the joint EPA and Army Corps of Engineers eight
pilot programs referred to as the ``urban rivers restoration
initiative.'' In this program the EPA and the Corps, along with
State and other agencies, work together to achieve a better and
more cost-effective restoration program than by using Superfund
alone.
8. Finally, it was mentioned earlier in this testimony that
the emergency removal program has been one of Superfund's major
successes. This program can deal with obvious contamination
problems anytime during the Superfund process, with much less
process costs than the remediation program. Given, this
program's success, Congress might consider allowing EPA to
spend more than the current limit on individual removal
actions.
Implicit in all the above is the fact that I don't believe
that the chemical and petroleum feedstock taxes should be
renewed on Superfund. These taxes are unfair in that they
target only two industries, which together account for much
less than half of Superfund's contamination problems. Also,
Superfund sites are a broad societal problem which has been
created by many types of industries; local, state, and Federal
agencies; and even individuals.
Therefore, I believe the current process of requiring
directly responsible parties at a site to fund the necessary
work at that site is the best approach. For those sites, where
responsible parties are not available, willing, or able
financially to conduct the work general revenues are the most
equitable approach, given the widely varied causes of
contamination at such sites. EPA also has strong legal
authorities to seek reimbursement from known responsible
parties who are able, but not willing, to do the work in
question.
Madame Chairman, I hope my remarks will be helpful to
Congress in dealing with this important program, and I will be
happy to answer any questions which you might have.
------
Responses by J. Winston Porter, to Additional Questions
from Senator Inhofe
Question 1. Do you believe there are certain decisions
related to Superfund sites that shouldbe made by high level EPA
officials rather than career staff in the regions?Why?
Response. Yes, I do believe that certain decisions related
to Superfund should be made by highlevel EPA officials, usually
the Assistant Administrator or Regional Administrators.These
officials have much more authority to set priorities than the
career staff and abetter overview of the situation. Having said
that, the input of the career staff is veryimportant and should
be listened to carefully by the senior officials.
Question 2. Why do you think the pace of cleanups was
apparently faster during the ClintonAdministration?
Response. The pace of the cleanups was somewhat faster
during the Clinton Administration for two primary reasons: (a)
The Assistant Administrator during much of the Clinton
Administration was Tim Fields who made it clear that his major
priority was completing construction at Superfund sites. Tim,
who formerly reported to me when I was the AA during the Reagan
Administration, is very knowledgeable about Superfund and
pushed hard with the staff to complete sites and (b) the push
to complete sites during the Clinton days did lead to
concentration on "easier" sites to finish. Many of the current
sites are more complex ones.
Question 3. Would more money for EPA be a significant
factor in speeding up cleanups?
Response. I don't think more money would make much
difference in the pace of Superfund cleanups. It is more
important in my opinion to place more emphasis on completing
sites and to be sure significant funding is not spent on non-
site, administrative activities, which are usually large in the
Superfund program. Also, the number of remaining sites in
Superfund are getting smaller and $1.2 billion, or so, annually
is still a lot of money. I am somewhat afraid that more money
will yield more bureaucracy, not faster cleanups.
Question 4. What are the one or two items which you think
would be the most helpful inincreasing the pace of Superfund
cleanups?
Response. The two items which would be most helpful in
increasing the pace of Superfundcleanups are: (a) setting
visible deadlines for completing sites, and (b) having senior
EPAofficials directly involved in pushing the pace of cleanup,
and held accountable for theresults.
Senator Clinton. Thank you very much, Dr. Porter.
Next, Bradley Campbell. Mr. Campbell was very active at the
EPA and the Council of Environmental Quality in the 1990's. We
appreciate your being here.
STATEMENT OF BRADLEY M. CAMPBELL, PRINCIPAL, BRADLEY M.
CAMPBELL, LLC
Mr. Campbell. Thank you, Madam Chair.
Senator Clinton. And the Commissioner of New Jersey.
Mr. Campbell. Thank you, Madam Chair and members of the
Subcommittee. It is a pleasure to be here, and I am grateful
that this Subcommittee is focused on what I view as a vital
program for protecting public health in our communities.
As the Chairman suggested, my background includes more than
18 years of work on this program in various roles as regional
administrator and White House lead counsel for the Clinton
administration Superfund reforms, and as a State commissioner
having to work cooperatively with EPA to get sites cleaned up.
I think from those perspectives, I can say with some
certainty that the flaws that the members of this Committee
have identified in this hearing are very clearly the flaws of
the program today. It is badly managed, it is underfunded, and
enforcement is on the wane in the last 6 years of this
Administration.
With all due respect to Administrator Bodine and certain
members of the Committee in terms of the pace of cleanup, the
composition of the national priorities list and the list of
sites and actions that are in the funding queue didn't change
overnight in 2000. However, the management of the program did
and the pace of cleanup did, going in half from more than 85
site completions over the 4-years immediately preceding, to 42
or less ever since. That is an enormous change. The list didn't
change, but the management did.
Second, on funding, it is obviously very difficult to
decipher sometimes the language of Superfund. You have to know
the code. There are numerous times when sites are ready to
fund, simple excavations are ready to fund, but you will see on
an EPA site that is in engineering or in design. Frankly, in
New Jersey at some of the sites I will discuss, there are
simple excavation remedies that have been in design for the
length of time it would take a high school senior to get an
engineering degree.
I think in those cases, it is fair for members of this
Committee in their oversight, and as Senator Lautenberg knows
well, to infer that something else is going on, and that
something else is typically a funding shortfall obscured by the
bureaucratic language suggesting that there is still work to be
done before it is ready to fund.
Of course, these are reinforced by failures of enforcement,
which has occurred at numerous sites in New Jersey, which I
discuss in my testimony.
Each of these factors--the failures of enforcement, the
failures of funding, the failure to manage, to complete
protection of the community at these sites--is mutually
reinforcing. If management isn't sending the message from the
top that these sites have to be completed, there is little
institutional incentive to take needed enforcement action.
There is little need for funding because essentially management
is not sending the signals. Those failures have very real
impacts for public health and the environment.
I highlight in my testimony a number of sites where cleanup
actions are ready to fund, but the communities are still
waiting after years and years for cleanup to begin. The
Imperial Oil facility, which I mention in my testimony,
repeatedly EPA representations that a simple excavation remedy,
removing contaminated soils that are adjacent to densely
populated communities, are still being designed; in that case,
8 years to design a simple remedy. It is simply not credible.
In the case of the Cornell-Dubilier site, with open dumps
of capacitors containing PCBs in the midst of an area where
there are hundreds of families. I have a chart that just gives
you some sense of the levels of contamination. These are onsite
soils. The offsite soils are relatively similar. This is the
State standard to protect public health. These are the levels
at the site, and yet there are numerous actions at the site
that are waiting to be done and are unfunded.
At the Roebling Steel site, literally a site that has been
in hiatus for years, very simple remedy, not a complex
complicated remedy that takes years to decide, but one where
the cleanup actions have been decided and have been decided for
years. And yet for 4 years, the cleanup actions that were ready
to go simply were in the funding queue and the public was told
that they were awaiting design, even more devastating, in those
sites that affect low-income and minority communities. I
applaud the Chair for her bill linking the environmental
justice issues to the Superfund cleanup issues.
In the Ringwood site, which Senator Lautenberg has visited
numerous times, a Native American community waited and waited
for EPA to respond to its calls to remove contamination from in
and around their homes. When EPA failed to enforce, I took
action and in 3 days we removed more material under State law
from around the homes than EPA had been able to remove in 30
years. And even now, as the community has asked for more
actions by the Ford Motor Company, EPA, to my chagrin,
continually sides with the company over the community and over
my successor, Commissioner Jackson, in terms of the studies
that are needed; in terms of the needed actions to protect
human health.
An even sadder story on the Passaic River. We have levels
of dioxin that are creating enormous risks for low-income,
mostly non-English speaking communities along the Passaic
River. And yet year after year, EPA's decision is to do more
studies. Only after the State took action under its enforcement
authorities, funded its own remedy, did EPA begin to move away
from a schedule that contemplated a decision no earlier than
2011, with remedies coming in 2013.
Each of these circumstances I think highlights those three
flaws of this program. They are not a function of more complex
sites. They are not a function of the changed nature of the
NPL. They are functions of bad management and a failure to
commit to the funding that is needed and the enforcement that
is needed to protect public health in our communities.
[The prepared statement of Mr. Campbell follows:]
Statement of Bradley M. Campbell, Principal, Bradley M. Campbell, LLC
Madam Chairman and Members of the Subcommittee, I am
pleased to appear before you this morning to testify on the
Superfund program's capacity to protect public heath. I am
Bradley M. Campbell, currently an environmental attorney and
consultant and president of Bradley M. Campbell LLC and
Minotaur Consulting LLC.
My testimony today is informed by more than 18 years of
work with the Superfund program spanning the administrations of
three Presidents. As an attorney with the United States
Department of Justice from 1990 to 1995, I tried or
participated in many of the seminal liability cases under
statute, and also served as the Department's lead attorney for
Superfund reauthorization and reform during the 103d Congress.
As Associate Director of the White House Council on
Environmental Quality (CEQ), I helped coordinate the Clinton
administration's positions on Superfund and brownfield
legislation during the 104th Congress. While at CEQ, I also
worked directly with the Environmental Protection Agency to
develop and implement the Clinton administration's Superfund
reform and brownfields initiatives.
In 1999, President William Jefferson Clinton appointed me
Regional Administrator of EPA's Region 3, where I was
responsible for oversight and implementation of the Superfund
program in Delaware, Maryland, Pennsylvania, Virginia, West
Virginia, and the District of Columbia. I served as regional
administrator until the change of administration in 2001.
In 2002, I was nominated by the Governor of New Jersey and
confirmed by the New Jersey Senate as Commissioner of New
Jersey's Department of Environmental Protection, a position in
which I served for 4 years ending in January 2006. In this
role, I was responsible for protection of human health and the
environment in a State that has more sites in Superfund's
National Priority List (NPL) than any other.
Currently, I am in private practice as an attorney and
consultant, where I continue to interact with the program on
behalf of municipalities, responsible parties, and
environmental and community organizations.
In these varied roles, I have seen firsthand how important
the Superfund program can be in protecting communities from
toxic threats, in returning contaminated sites to productive
use, and in renewing the economy and fabric of communities. I
also have understood, through the work of Members of this
Committee and the testimony of those who live near Superfund
sites, many distinct failures of the program throughout its
history.
SUPERFUND TODAY: THREE AGENCY FAILINGS
1. Overview
There has been a common thread in both Superfund's
successes and its failures. Simply put, this is a program that
is highly sensitive to EPA's agency leadership on cleanup pace,
to levels of funding, and to the program's enforcement
emphasis.
In the first years of the Superfund program, Congress
responded directly to program failures of leadership, funding,
and enforcement in the Superfund Amendments and Reauthorization
Act of 1986. Four years later, Administrator William K. Reilly
initiated the ``90-day review,'' which resulted in additional
reforms and the start of an ``enforcement first'' policy that
accounted for the first significant increase in the pace of
remedial work under the program.
When the 103d Congress failed to enact President Clinton's
broadly supported proposals for Superfund reauthorization and
reform legislation, Administrator Carol Browner implemented a
sweeping set of management and policy reforms to address the
broad range of challenges identified during the legislative
process. This second wave of reform included, among other
achievements, EPA's highly successful Brownfields Program.
While the number and scope of these reforms are beyond the
scope of this testimony, they can be fairly described in the
mantra that all of us working on those reforms heard and
repeated often: Superfund cleanups had to be faster, cheaper,
and fairer. The success of the effort was easy to document,
however, in the sustained increase in the pace of Superfund
cleanups that resulted unfortunately, over the last six and a
half years, the program has suffered from the current
administration's approach to management, funding, and
enforcement.
Pace of Cleanup: EPA has effectively abandoned any
management focus on maintaining a reasonable pace of cleanup
completion. By EPA's own statistics, the pace of cleanup
progress has been cut roughly in half as measured by
construction completions. While the use of this program measure
has had its critics, the agency's failure to manage the program
to maintain the pace of cleanup is documented by other measures
as well.
Funding: Closely linked to the pace of cleanup is the
level of funding. Over the past 6 years, shortfalls in funding
at sites where remedial work is ready to start have been more
numerous and more pronounced. As a consequence, bureaucratic
delay in the cleanup process has been encouraged, or has been
used as a veil to obscure funding shortfalls.
Loss of enforcement ethic: In the absence of clear and
transparent goals for cleanup completion, and in the absence of
funding for the agency to assume the lead for cleanups when
responsible site polluters are uncooperative, EPA has been far
less willing to use the powerful enforcement tools the statute
confers on the agency, and less willing to compel responsible
polluters to perform more thorough or more comprehensive
cleanups.
2. Pace of Cleanup
Through a combination of Administrator Browner's program
reforms, imposition of clear management goals, and the full
funding of the Superfund through the Superfund tax, EPA
achieved a remarkable pace of 85 or more construction
completions each year in the 4 years ending in fiscal year
2000. In the preceding 4 years, as a consequence of
Administrator Reilly's ``enforcement first'' program and
Administrator Browner's early leadership, the annual number of
construction completions averaged more than 65.
By contrast, in the 4 years ending in 2006, the current
administration has achieved construction completion at 41 or
fewer sites each year.\1\
---------------------------------------------------------------------------
\1\Source: EPA 2007. See also Katherine N. Probst and Diane
Sherman, Success for Superfund: A New Approach for Keeping Score
(Resources for the Future, 2004)(Probst & Sherman) at 2 (``the number
fo new construction complete sites has decreased quite dramatically in
the new millennium'').
---------------------------------------------------------------------------
This decline in program efficacy was as sudden as it has
been stunning in magnitude. In response, EPA leaders and others
have suggested that the decline in construction completions is
attributable to the fact that remedial remaining NPL sites
cleanups are larger and more complex than those in preceding
years.
This explanation is deficient for a number of reasons.
First, the composition of the NPL did not change overnight in
2000, but the pace of cleanup and the agency leadership clearly
did.
Second, some of EPA's most ambitious and complex site
cleanups, such as the Hooker Chemical or Love Canal site, were
among the sites at which the agency achieved construction
completion and, in the case of Love Canal, deletion from the
NPL.
Third, any change in the complexity or scale of cleanup
challenges at sites where communities still await construction
completion is offset by EPA's increasing reliance on
institutional or engineering controls in lieu of permanent
remedies, compared to earlier phases of the program.
Institutional controls typically reduce both the cost and time
required for major cleanups to achieve construction completion.
While EPA's dependence on institutional controls gives rise to
serious concerns about the reliability of Superfund remedies
and long-term protection for affected communities,\2\ it is
beyond dispute that the expanded use of institutional controls
enables EPA to maintain the pace of cleanup even if, as current
agency leaders assert, remaining cleanup challenges are more
complex or larger in scale.
---------------------------------------------------------------------------
\2\See Jophn Pendergrass and Katherine N. Probst, Estimating the
Cost of Engineering Controls (Environmental Law Insitute and Resources
for the Future 2005).
---------------------------------------------------------------------------
Fourth, as some of the examples in the second half of my
testimony help illustrate, many of the cleanups that await
completion are utterly commonplace in nature, presenting no
unusual challenges of complexity or scale.
I acknowledge that ``construction complete'' is an
imperfect measure of program success in protecting public
health, as some of the programs most trenchant analysts have
noted.\3\ Yet whatever the limitations of ``construction
complete'' as a program measure, it is the only readily
available and transparent indicator of program success. It
remains the measure that the current administration itself
holds out as an appropriate measure of success, and so it
should remain among the standards by which the performance of
the agency leadership is judged.
---------------------------------------------------------------------------
\3\Probst & Sherman 6--9.
---------------------------------------------------------------------------
Moreover, other significant indicators of program efficacy
reinforce this measure. In New Jersey, for example, more than
half of the sites that lack construction completion have
uncontrolled human exposure pathways or uncontrolled
groundwater migration, risks that are almost always eliminated
by construction completion. While there is no longitudinal data
to determine how this figure has changed over time, it tends to
reinforce the virtue of using ``construction complete'' as a
milestone of program efficacy.
These broad observations about the changed pace of the
program are borne out by the very different approaches to the
program that I experienced first as an EPA Regional
Administrator in 1999--2001 and that I experienced later as DEP
Commissioner from 2002-2006 in New Jersey, the State with more
Superfund NPL sites (140) than any other.
During my tenure as an EPA regional administrator, EPA's
national Superfund program goals were clearly communicated by
the agency's national leadership and incorporated in regional
and site-specific management of the program. These goals also
were reflected in our cooperative work with our State
counterparts. As a consequence, everyone at EPA from
headquarters to the field learned to focus on resolving
impediments to clean up and, where consistent with public
health protection, to accelerate the pace of cleanup.
When I became DEP commissioner in 2002, it was apparent in
working with the Superfund program that EPA had little or no
agency initiative or senior management emphasis on maintaining
or improving the pace of cleanup. New Jersey's requests for EPA
to step up the pace at particular sites were generally
unproductive. Conversely, EPA rarely requested State action to
hasten cleanup progress or accelerate construction completion,
requests I made often during my own tenure at EPA.
3. Funding Shortfalls
The pace of cleanup is closely tied to the availability of
funding. There has been long recognition due to EPA's success
in the late 1990's at achieving a construction completion rate
of 85 or better that the Superfund would have to be replenished
and funding expanded. This was reflected both in President
Clinton's repeated calls to reinState Superfund taxes, and in
budget proposals that included significant expansion of program
funding to meet the accelerated pace of cleanup.
During my tenure as a Regional Administrator, I never had
to delay or defer cleanup actions because funding was
unavailable. During my later tenure as DEP Commissioner, EPA
repeatedly told me that cleanup would be delayed because of
funding shortfalls. In addition, there were numerous occasions
in which proposed remedies were rejected for trivial or
pretextual reasons because funding was not available to proceed
with cleanup. In one case, EPA staff shared with me internal
emails in which they were directed to find a technical basis to
reject a remedy because funding was not available. In other
cases, the message was less explicit but no less clear, as some
of the examples in the second half of my testimony illustrate.
4. Diminished Enforcement
Even with clear management goals for cleanup pace and
adequate funding, the pace of the Superfund program depends
vitally on strong enforcement.
This principle was embedded in EPA policy as ``enforcement
first'' during the tenure of Administrator Reilly, and this
policy shift transformed the program from one in which
approximately two-thirds of cleanups were led by EPA using
Superfund resources, to one in which responsible polluters took
the lead in funding and performing cleanup at two thirds of NPL
sites.
With responsible parties in the lead at the majority of NPL
sites, use of enforcement tools is essential to maintaining the
pace and quality of cleanup. EPA must be willing to use its
unilateral order authority to compel responsible polluters to
perform protective and expeditious cleanups, and must be
prepared to use the threat of treble damages if EPA must assume
control of the cleanup in place of the responsible party.
EPA's willingness to use its enforcement tools is critical
not merely for completing cleanups, but also to compelling
interim measures to control hazardous substances and to cutoff
pathways to human exposure. My experience in dealing with EPA
as New Jersey's DEP Commissioner was that EPA's willingness to
use the enforcement tools Congress has given the agency has
waned significantly over the past 6 years. At several New
Jersey NPL sites, I had to threaten enforcement action under
State law in order to prompt responsible parties to enter a
consent order with EPA to implement interim measures to stop
ongoing pollution to ground and surface waters.
Of course, the agency's enforcement posture in the cleanup
context is difficult to quantify and generally opaque to the
public. My experience, both as New Jersey DEP Commissioner and
subsequently as a private attorney, as the examples in the
second part of my testimony suggest, has been that the current
EPA leadership is rarely willing to order responsible parties
to perform remedial activities at an accelerated pace or to
order remedies that are more protective than those that the
responsible polluters are willing to perform.
Of course, these three failings of the current program are
closely related. In the absence of clear management oversight
to maintain or accelerate the pace of cleanup, there is little
institutional incentive at EPA to take aggressive enforcement
action. When funding is short, the resources to support
potential enforcement litigation are more limited, the ability
to resolve enforcement disputes through the use of mixed public
and private funding is eliminated, and the credibility of EPA's
most potent threat, that of taking over the disputed cleanup
and asserting treble damage liability against the responsible
polluter, is greatly diminished.
SUPERFUND TODAY: THE EXPERIENCE ON THE GROUND
The combination of management failure, funding shortfalls,
and diminished enforcement now manifest in EPA's administration
of the Superfund program are not abstract failures to meet
bureaucratic program measures. Rather, they are failures that
have direct and grave implications for public health in our
communities, for economic growth and renewal in communities
saddled with contaminated sites, and for the quality of life in
communities that already have waited far too long for
Superfund's promise of protective cleanups.
Moreover, there is a ``downstream'' effect of these
failures on hundreds of sites beyond those on the NPL. For
years, State agencies like New Jersey had enormous leverage to
compel prompt cleanup at NPL-caliber sites because responsible
polluters sought to avoid the greater cost, public attention,
and stigma associated with NPL listing and remediation under
Federal requirements of the National Contingency Plan (NCP). As
the Federal program has become less focused on cleanup
completion, hampered by funding shortfalls, and less willing to
use enforcement tools, the potential for listing on the NPL is
no longer a strong driver for responsible polluters to complete
protective cleanups under State law.
The following examples, drawn from my experience over he
past 6 years, should highlight how the broad program trends
outlined in the first part of my testimony directly and
adversely impact New Jersey's communities.
1. Passaic River Dioxin (Diamond Alkali)
Nearly 27 years after the passage of Superfund, and more
than 23 years after site listing on the NPL, dioxin
deliberately and unlawfully dumped in the Passaic River from
the Diamond Alkali site in Newark, New Jersey continues to
spread down the river and throughout the Newark Bay estuary.
With each tide, the dioxin spreads further throughout the
system. With each tide, and with each year of sediment, the
cleanup challenge becomes more difficult and more expensive. To
date, EPA has proposed no interim or final action to address
the dioxin contamination in the river.
The toxic threat presented by this site has not been cured
by fish advisories, even though DEP took the lead in posting
more effective warning signs, and in funding extensive outreach
to communities to make them aware of dioxin risks. Scores of
New Jerseyans, predominantly in non-English-speaking
communities, continue to take the crabs as subsistence, failing
either to understand or to heed warnings in multiple languages.
On the New York side of the estuary, no warnings or take
prohibitions are posted at all. Levels of dioxin in blue claw
crabs are such that one could only safely eat one crab in 20
years. In a risk estimate developed at DEP and reviewed by EPA,
cancer risks for those taking the crabs for consumption were
estimated to exceed one hundred percent, meaning the exposed
populations were at risk of multiple cancers over their
lifetime. Prior to my start at DEP, neither EPA nor DEP made
any significant effort to publicize these risks or to compel
the responsible companies to address the dioxin contamination.
For decades, EPA's pattern had been to do years of studies,
take years to review the studies, and then order additional
rounds of studies on the basis that newer data was needed,
never asking more than the responsible polluter was willing to
do early in my tenure as Commissioner of DEP, I joined with EPA
and other Federal agencies in a ``Passaic River Restoration
Initiative'' or PRRI, authorized by Congress with the stated
intention of accelerating remedial work on the river. In the
context of that initiative, New Jersey repeatedly urged EPA to
accelerate the development of remedial options, to no avail.
EPA consistently interposed the need for more study, and cited
the failure to fund the legislative initiative as an additional
cause of delay.
I then personally met with the leading regional scientists
who had studied the contamination. They presented a clear and
strong consensus that the data needed for a remedial decision
was available and delay for further study would only allow the
extent of contamination to expand. When I renewed my press for
early action to address the contamination, EPA circulated a
revised draft schedule promising a remedial decision in 2013
and remedial action in 2015.
New Jersey then made clear to EPA that we intended to issue
our own order under State authority requiring the principal
responsible party to develop, design and engineer an
appropriate remedial measure to reduce dioxin loadings within a
year, making clear that our decided preference was for EPA to
act or for EPA and the State to develop an order together.
Again, EPA refused, even as they asserted that their own
intention was to develop remedial options within a year.
Throughout the process, EPA cited the lack of funding
available to proceed with the process if a major dispute were
to arise with the responsible parties, and exhibited a
steadfast unwillingness to use its enforcement tools to compel
the responsible parties to design remedial measures within a
reasonable timeframe.
Only after New Jersey issued its independent order,
retained outside counsel to enforce the order, and committed
its own funds to the design of a remedy, did EPA finally begin
to pursue a reasonable schedule for the cleanup they had
neglected for nearly thirty years. Happily, Governor Jon
Corzine took office and expanded the funding for this effort
under my able successor, Commissioner Lisa Jackson.
But the pattern of delay has not ended. Just recently, EPA
once again postponed long-overdue remedial action on the river
by deferring, until next spring, a review of its remedial
options by the agency's remedy review board. The dioxin will
spread further, remedial options will be made more expensive by
another year of sedimentation, the day when fish and shellfish
will be healthy to eat will recede further into the future.
And, most tragically, the health of scores of New Jerseyans
will remain at great risk for years to come.
2. Ringwood Mines
For years, the Ford Motor Company dumped paint sludge from
its manufacturing operations in old mine shafts and
uncontrolled dump sites in Ringwood, New Jersey, leaving waste
bearing lead and other toxins over more than 500 acres in the
small Borough of Ringwood. The population of Ringwood numbers
13,000, and still fewer--less than a hundred ? live in the
immediate vicinity of the waste, but runoff from the sites
migrates to the Wanaque Reservoir, which serves more than 2
million New Jersey residents.
Ringwood and the predominantly low-income families living
near the waste had long complained about the adequacy of Ford's
cleanup effort, but EPA and DEP ignored these complaints for
years.\4\ As a result of effective advocacy by the Borough and
local residents, and a superb investigative series by the
Bergen Record newspaper, the community called my attention to
the failures of the cleanup at the site. New Jersey DEP
undertook a renewed investigation, and found enormous volumes
of paint waste left in plain sight, adjacent to and inside the
yards of local families, where toxic exposure has been a fact
of life for these residents for decades.
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\4\I must note my disagreement with the recent conclusion, by EPA's
Inspector General, that the past failures had nothing to do with
minority and low-income composition of the community.
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The regulatory failure at both the Federal and State levels
that allowed this site to be de-listed from the NPL is a
tragedy of terrible proportions, and one not attributable to
the current program. I credit EPA and its Regional
Administrator, Alan Steinberg, for responding to our calls to
visit the site, for promptly recognizing that this site should
be re-listed on the NPL, and for requiring Ford to initiate a
new and more comprehensive cleanup.
Yet even in the aftermath of extraordinary agency failure,
and EPA's recognition of the programmatic failure that left a
distressed community at risk for years after the site was
deleted from the NPL, the cleanup process at Ringwood is
hampered in this second cleanup by funding shortfalls and lax
enforcement.
Despite the earlier failure to give the community an
adequate voice in the cleanup, EPA from the outset refused our
request for technical assistance grants that would enable to
community effectively to participate in the cleanup. Despite
Ford's clear responsibility for the site and its earlier
failures to perform an adequate cleanup, EPA has repeatedly
sided with Ford and against the citizens and the Borough in the
cleanup process.
For example, both the community and current DEP
Commissioner Lisa Jackson have asked for seismic studies to
determine the impact of the waste and the cleanup process on
local ground stability, because local residences have been
plagued with sinkholes in the area of the contamination. Rather
than compel Ford to perform this needed work, EPA sided with
Ford and against DEP and the community in deeming the work
unnecessary.
When Ford responded to the re-listing of the site by
asserting liability against the tiny Borough that had helped
bring the egregious failures by Ford and EPA to light, EPA
again sided with Ford, and to this day has failed to enter a
settlement that would appropriately limit the Borough's
exposure to hostile litigation by Ford.
Here as elsewhere, EPA has demonstrated little willingness
to compel more cleanup work than the responsible polluter is
willing to offer its taxpayers, has been unwilling to use its
enforcement tools to ensure complete cleanup or to protect the
Borough, and has not provided or required Ford to provide the
funding needed for the community to participate fully in the
cleanup.
The long-suffering Borough of Ringwood and its residents,
it appears, will suffer still longer.
3. Imperial Oil
The Imperial Oil/Champion Chemical site encompasses 15
acres surrounded by residential neighborhoods in Monmouth
County, New Jersey. Past operations at the site included waste
oil reprocessing and agricultural chemical production, and the
legacy of those operations include waste oil, PCBs, and arsenic
contamination. This contamination has extended offsite and into
a nearby creek. While there has been some removal of
contaminated soils from areas outside the fenced-in boundary of
the site, the remediation of the onsite contamination at the
site of the former Imperial Oil facility has been continually
postponed due to lack of funding. EPA has relied primarily on a
fence to protect the local community and curious children from
onsite contamination at the facility.
The impact of funding shortfalls in the Superfund program
has been especially apparent in EPA's management of the third
phase or ``operable unit'' of the cleanup (Operable Unit 3
(OU3). The Record of Decision (ROD) for OU3, which finally
determines the cleanup plan, was signed in 1999. New Jersey DEP
assumed the lead for the design and engineering of OU3, and
this work was substantially completed in 2001.
From 2002 onward, EPA continually rejected completed design
work for OU3 on trivial or pretextual grounds, while making
clear the funding was unavailable for the site even if EPA were
to approve the designs. EPA staff inadvertently forwarded to
DEP staff internal correspondence in which EPA technical staff
were directed to find a technical basis to reject DEP's OU3
design, because funding would not be available for some time.
Over time, New Jersey's complaint over this impasse and the
funding shortfall became more vocal, joined by members of New
Jersey's congressional delegation.
In 2006, EPA simply took over the lead for the site.
Notably, but not credibly, the agency reports on its website
that it is still ``designing'' the relatively straightforward
excavation remedy provided by OU3.
This is a site that is entirely dependent on adequate
funding by the Superfund program, the responsible parties being
largely insolvent or defunct. While EPA's public descriptions
of the site suggest that it has taken the last 8 years for two
different agencies to design and agree to a remedy for a simple
soil excavation, the reality is that the cleanup delays are
attributable to inadequate funding and failure to manage for
construction completion.
4. Roebling Steel
Another site where cleanup depends entirely on program
funding and has been delayed repeatedly is the sprawling
Roebling Steel site, encompassing five hundred acres along the
Delaware River in Florence Township, New Jersey. All of the
funding available from the responsible party was recovered in a
Chapter 11 bankruptcy proceeding in 1992.
The site is at the heart of the Township's plans for
economic redevelopment, a fact highlighted by EPA's award of a
$100,000 planning grant for reuse of the site and its stated
willingness to enter a prospective purchaser agreement (PPA)
with potential redevelopers. But neither the modest planning
grant nor a PPA can overcome the principal obstacle to
redevelopment of the site: protracted delays in EPA's cleanup
of the site.
Despite repeated requests by DEP and the Mayor of Florence
to EPA to fully fund cleanup at the site, remedial activity at
the site went into an extended hiatus throughout my 4 years as
commissioner. EPA staff privately attributed the hiatus to
funding shortfalls, whereas EPA's public summaries of cleanup
progress suggest that delays are due to design of the
relatively straightforward remedial action selected for the
site. Here again the remedy ``design'' process serves as a veil
to obscure the agency's current failures of management and
funding. Here again, the remedy still-to-be funded is a simple
excavation, presenting no unusual complexity.
As at Imperial Oil and Cornell-Dubilier (discussed below),
the relatively uncomplicated nature of the remedial work that
remains to be funded belies EPA's claims that construction
completions have slowed due to the nature of the remedy rather
than management failure or funding shortfalls.
EPA's own portrayal of the site on its web pages
illustrates starkly the extent of delay. The third remedial
action selected for the sight was completed in 1994. EPA
currently projects that design, not construction, of the fourth
remedial action will be completed in the fall of 2007 ? 13
years later. While other work, including a revetment along the
river, has been completed in the interim, little or no work
occurred for more than 5 years.
Given this pattern of funding shortfalls and cleanup delays
over the past 6 years, the Township of Florence can have no
optimism as to whether and when the site will be available for
redevelopment and returned to productive use. Prospective
purchasers have little or no reason to choose redevelopment of
this site over available greenfield sites. And the site
continues to be a source of toxic loadings to the adjacent
Delaware River.
5. Berry's Creek/Universal Oil Products
As the Passaic River example illustrates, the failures of
management, funding, and enforcement that mark the current
Superfund program appear especially pronounced at contaminated
sediment sites, even where (as on the Passaic) the
contamination at issue is primarily attributable to a single
polluter. Current program failures at these sites adversely
affect not only surrounding human and natural communities, but
also hamper the good-faith efforts of responsible companies to
complete their cleanup work and resolve their liability.
The Berry's Creek Superfund provides a New Jersey example
of this problem. At this site, remedial actions for the land
portion of the site progressed, but the cleanup process for the
mercury contamination of marsh and river sediments has
languished for years. At this site, one of the responsible
parties repeatedly sought to accelerate the pace of remedial
investigation and feasibility studies, but found that after
many years EPA had done little more than have the responsible
party fund a literature search.
In response, the responsible party took the unusual step of
asking New Jersey DEP to assume the lead for the cleanup and
undertake an accelerated remedial effort. While New Jersey
DEP's own program for hazardous site cleanup already was
overburdened, the good faith of the company in making this
overture persuaded me to make the request of EPA, either to
have the State take over the lead or to jointly develop an
accelerated approach with EPA. EPA flatly rejected this
request, but the fact of the request demonstrates the level of
frustration with the current program pace even among
responsible parties.
EPA did finally begin remedial investigation of the marsh
and creek in 2005, but there is little prospect of a remedial
decision in this decade if current program approaches continue.
5. Cornell-Dubilier
The severity of Superfund funding shortfalls is further
illustrated by the fact that even sites with ongoing human and
ecological suffer long delays in the queue for funding.
Located in South Plainfield New Jersey, the Cornell-
Dubilier Electronics site has more than 540 residents living
within one quarter of a mile of the site, and the site includes
direct surface water connections to ecologically sensitive
tributaries of the Bound Brook.
EPA has undertaken numerous emergency response and remedial
actions at the site, but funding shortfalls have delayed a
number of major remedial actions called for by the record of
decision signed in 2004. In particular, there is an open and
uncontrolled dump of capacitors that comprises, by EPA's own
description, the most contaminated portion of the site.
This phase of the cleanup should have proceeded no later
than 2005, but due to funding constraints and the cleanup of
the capacitor disposal area is not projected by EPA to take
place until later this year. In addition, expanded cleanup of
commercial and residential areas has progressed at an unduly
slow pace ? by all accounts because of inadequate funding.
In the interim, both the public and sensitive natural
resources are being exposed to PCBs, heavy metals, and toxic
organic compounds.
CONCLUSION
Both broad statistics and the experience of states on the
ground are consistent: the Superfund program has lost its focus
on completing cleanup work, is hamstrung by funding shortfalls,
and is unwilling to make full use of the enforcement tools
Congress as given the agency.
The consequences for public health and the economy of
affected communities in New Jersey are profound. So too, are
the consequences for New Jersey DEP, already managing far more
hazardous sites than its resources permit.
I am grateful to the subcommittee for focusing its
attention on this vital public health and environmental
challenge.
Senator Clinton. Thank you very much, Mr. Campbell.
Next, Michael Steinberg, Senior Counsel of Morgan, Lewis
and Bockius, and Outside Counsel to the Superfund Settlements
Project.
STATEMENT OF MICHAEL W. STEINBERG, SENIOR COUNSEL, MORGAN,
LEWIS AND BOCKIUS LLP, AND OUTSIDE COUNSEL, SUPERFUND
SETTLEMENTS PROJECT
Mr. Steinberg. Thank you, Madam Chairman and members of the
Subcommittee. It is a pleasure to be here this morning on
behalf of the Superfund Settlements Project.
Superfund is far from perfect, but I believe it functions
more effectively today than it has during most of its life.
Today, responsible parties are cleaning up most of the sites on
the NPL and they are paying the full cost of those cleanups. It
hasn't always been that way. At the orphan sites, where there
are no responsible parties, EPA uses the so-called trust fund
to pay for cleanups.
This morning, I would like to address three issues: health
risks, financial management, and listing sites on the NPL.
First, Superfund is doing a better job than you might think
in reducing risks to public health. In fact, most NPL sites no
longer pose current health risks. How do we know this? Because
Superfund has already eliminated human exposure to unsafe
levels of contamination at those sites. Without exposure, there
is no risk.
Now, that is a pretty basic point, but it sometimes gets
overlooked. For example, the report issued last year by
Professor Steinzor looked at 50 NPL sites and said that they
all posed major health risks. In fact, that report looked at
proximity, not exposure. Again, proximity alone is not the same
as exposure. Half of those 50 sites are listed by EPA as having
human exposure under control. That means EPA found no exposure
to unsafe levels of contamination at those sites--not in the
air, not in the soil, and not in the groundwater or the surface
water or the sediment. Again, without exposure, there is no
risk.
Of course, no one is suggesting that we walk away from
those sites. They still need to be cleaned up. But when we look
at the competing needs of other Federal programs that protect
public health and we try to establish priorities for getting
things done, we need to remember that most NPL sites no longer
pose current health risks.
Second, if we look at how EPA runs the Superfund program, I
would echo some of the comments made earlier that there is a
pressing need for stronger financial management. My written
statement offers a few recommendations that would conserve
EPA's appropriation for use at sites where there are no
responsible parties. I would like to focus this morning on just
one of those recommendations.
A big chunk of EPA's Superfund appropriation each year is
consumed by support offices that are not involved in cleanup. I
am not talking about administrative overhead. I am talking
about things like the Office of Inspector General, and the
Office of the Chief Financial Officer. These offices provide
what are basically shared services to all of EPA's programs.
Superfund alone has its appropriation raided to pay for those
services, and these raids add up to some $200 million each
year, again some 15 percent of EPA's budget for Superfund,
going to offices that are not involved in cleanups.
We would urge that this spending be sharply reduced
beginning in Fiscal Year 2008. This is the most direct and
logical way to free up more money for the program's core
mission of working on NPL sites that lack responsible parties.
Third and last, let's look at the NPL. Listing a site on
the NPL creates a long-term financial obligation for Superfund.
So before a site is listed, we should ask whether other
approaches might work just as well or even better. For example,
the State's voluntary cleanup program might encourage
responsible parties to move forward with a faster and more
efficient cleanup. EPA agrees in concept, and that is why they
call the NPL the tool of last resort. But it is difficult to
tell whether EPA is looking at those other approaches before it
lists a site.
If you open the Federal Register and you look at a proposed
listing, you will notice that EPA never says why it wants to
list the site. It doesn't say whether it has looked at other
approaches. This means that communities and interested parties
can't submit meaningful comments on proposals to add sites to
the list.
Whatever EPA's reasons for listing sites, the real need
here is for transparency. Every proposed listing should say why
EPA wants to list the site and whether it looked at other
approaches besides the NPL. This way we will ensure that EPA is
considering alternatives and we will avoid using Superfund
resources for sites that can be addressed effectively through
other programs.
Thank you very much.
[The prepared statement of Mr. Steinberg follows:]
Statement of Michael W. Steinberg, Senior Counsel, Morgan, Lewis and
Bockius LLP, and Outside Counsel, Superfund Settlements Project
executive summary
Superfund today is a mature program that has addressed most
of its original workload. Construction of the remedy has been
completed at most of the sites on the National Priorities List,
and even more NPL sites have human exposure under control.
Today, private parties are cleaning up most of the sites on
the NPL, and they are paying the full cost of those cleanups.
The Trust Fund is used to pay for the ``orphan sites'' where no
responsible parties can be found to perform the work.
Despite Superfund's many accomplishments, there is still
room for improvement. By strengthening its financial management
controls, EPA can and should do more with its annual Superfund
appropriation.
Specifically, EPA should conserve more of its annual
appropriation for the core mission of the Superfund program--
completing long-term cleanup at NPL ``orphan sites.'' Among the
key steps EPA should take are these:
spend less money on support services from EPA offices
that are not involved in actual site cleanups;
provide all stakeholders a meaningful opportunity to
comment on proposed additions to the NPL;
exercise centralized management control over remedy
selection decisions that shape Superfund's long-term financial
obligations;
spend less money on oversight of work performed by
experienced private parties; and.
spend less money on non-emergency removal actions.
INTRODUCTION
The Superfund Settlements Project (``the Project'')
appreciates the opportunity to share with the Subcommittee some
industry perspectives on the Superfund program as it operates
today. The Project is a not-for-profit association of major
companies from various sectors of American industry. It was
organized in 1987 in order to help improve the effectiveness of
the Superfund program by encouraging settlements, streamlining
the settlement process, and reducing transaction costs for all
concerned.
The members of the Project share an extraordinary degree of
practical, hands-on experience with the Superfund program. They
have been involved at literally hundreds of Superfund sites
across the country over the last 25 years. Representatives of
the Project have testified before Congress on many occasions
regarding various aspects of the Superfund program. The Project
has also played an active leadership role in the national
policy debate over many Superfund issues, and has been a strong
supporter of EPA's Superfund Administrative Reforms since they
were announced in 1995.
Collectively, the Project's members have spent well over
six billion dollars onsite cleanups and site studies since
1980. That spending covered not only the companies' own shares
of liability, but also sizable shares attributable to other
parties that were defunct, insolvent, or otherwise unable to
pay their fair shares. On top of that, these companies also
paid out hundreds of millions of dollars more in Federal
Superfund taxes during the first 15 years of the program's
life. All told, these companies have paid far more than any
fair or equitable measure of their actual responsibility for
the contamination at these sites.
OVERVIEW
Superfund is a mature program that has largely accomplished
its goals, albeit at a cost that was not always justified by
the risks being addressed.\1\ The gaps in environmental
regulatory programs that led to the creation of many Superfund
sites have been filled by the Clean Water Act, the Resource
Conservation and Recovery Act, and the Toxic Substances Control
Act. Given the substantial deterrent effect of those statutes,
Congress has a right to expect that fewer sites are being
created that will require remediation in the future, and this
is consistent with our experience.
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\1\EPA considers ``cost-effectiveness'' only to a limited extent.
40 C.F.R. 300.430(f)(1)(ii)(D) (2006). EPA does not consider the more
fundamental questions as to the relative costs and benefits of
alternative remedial actions. See generally State of Ohio v. United
States EPA, 997 F.2d 1520, 1532 (D.C. Cir. 1993) (``there is nothing in
section 121 [of CERCLA] to suggest that selecting permanent remedies is
more important than selecting cost-effective remedies'').
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Today, private parties are cleaning up most of the sites on
the National Priorities List (``NPL''), and paying the full
cost of those cleanups. The Superfund Trust Fund is paying for
cleanups at the ``orphan sites'' where no responsible party
exists.\2\
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\2\This includes ``orphan sites'' where the responsible party is
insolvent, or has been exempted from liability by Congress. The Trust
Fund is also paying for general informational and outreach programs
such as technical assistance to community groups, research and
development, remedial and brownfields policy development, and public
participation.
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Superfund has also largely addressed its original workload.
Significantly, construction of the remedy has already been
completed at most of the sites on the NPL. Today, Superfund is
working on the remaining NPL sites, which include some of the
largest, most complex, and most challenging sites.
In this statement, we first describe the evolving
partnership between EPA and industry that has enabled the
Superfund program to achieve notable successes, particularly
since EPA's announcement of major administrative reforms in
October of 95. Then we turn to some of the pressing challenges
currently facing Superfund.
The central theme that connects all of these challenges is
the need for EPA to manage its annual appropriation more
effectively than it does today.\3\ Currently, EPA:
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\3\The Superfund budget is about 50 percent bigger than the budget
for the Food Safety and Inspection Service, which protects the nation's
meat, poultry, and egg products.
transfers a significant fraction of its appropriation
each year to EPA support offices that are not involved in
actual cleanup work;
assumes new long-term financial obligations each year
with little transparency and limited review by senior
management; and
spends money each year on projects that are not high
priorities and activities that are not essential.
In sum, EPA is not yet managing its Superfund ``income'' or
``expenses'' as well as it can. In the spirit of constructive
criticism, we offer today a series of recommendations aimed at
helping EPA address these challenges. In particular, EPA
should:
conserve more of its annual Superfund appropriation for
long-term cleanup work at NPL sites that have non-performing
PRPs;
provide greater transparency for its new NPL listings;
exert greater management control over the key cleanup
decisions that increase Superfund's long-term financial
obligations; and
reduce unnecessary spending on oversight and non-
emergency removal actions.
I. SUPERFUND TODAY REFLECTS A HIGHLY SUCCESSFUL PARTNERSHIP BETWEEN EPA
AND INDUSTRY.
Although the Superfund program has generated extraordinary
levels of controversy and criticism, EPA has, over time,
developed institutional capability and expertise, solved
problems, improved relationships, and ultimately established a
program that performs a critical function in society. To be
more specific:
tens of thousands of contaminated sites have been
evaluated;
short-term removal actions have been taken at several
thousand of those sites;
longer-term remedial actions have been completed at most
of the non-Federal sites on the NPL;
construction is underway at most of the remaining NPL
sites; and
human exposure is under control at most NPL sites.
Superfund--once a topic of intense public concern,
dominated by controversy and emotion--has fundamentally
achieved its objectives and accordingly has receded in the
public focus. Today a general public recognition exists that at
most sites, the actions that should be taken are being taken.
In the process and in recent years, EPA has also worked to
improve relationships with Potentially Responsible Parties
(``PRPs'') and has minimized its previously confrontational
approach to private parties. For the most part, there now
exists an atmosphere of cooperation and mutual respect. EPA
should be commended for its accomplishments in this field.
It should also be recognized that industry has made major
contributions to the success of this program. At site after
site across the country, companies rose to the challenge. They
organized PRP groups, established committees within those
groups, investigated the conditions of contamination, and
developed action proposals. Once EPA selected the remedies,
those companies carried out remedial actions, and today they
are managing long-term operation and maintenance at most sites.
They provided the leadership, the technical resources, and the
funding to perform required work at an ever-increasing
percentage of contaminated sites. That percentage is now
greater than 70 percent of NPL sites.
Welcoming the more cooperative spirit that EPA has
demonstrated since adoption of the administrative reforms in
1995, those companies have themselves taken pride in the
results of this program. They have earned the right to be
regarded as constructive partners in the achievement of success
under Superfund. They will continue to be constructive partners
in addressing other sites through other cleanup programs.
Despite Superfund's notable successes, however, the program
still has considerable room for improvement. In particular, EPA
can and should be more efficient with the money it receives
each year from Congress. Accordingly, in the spirit of
constructive criticism, we describe below several ways in which
EPA can direct more of its annual Superfund appropriation to
the core mission of completing long-term cleanup at NPL
``orphan sites.'' Importantly, all of the measures that we
recommend here are steps that EPA can take without the need for
legislative action or rulemaking.
II. EPA SHOULD CONSERVE MORE OF ITS SUPERFUND APPROPRIATION FOR
CLEANING UP NPL ``ORPHAN SITES.''
Currently, some $200 MM/yr of EPA's annual Superfund
appropriation is directed not to the Office of Solid Waste and
Emergency Response (``OSWER''), but to other EPA offices that
provide varying degrees of indirect support to the Superfund
program. These other offices include:
Office of Research and Development (``ORD'');
Office of Administration and Resource Management
(``OARM'');
Office of the Chief Financial Officer (``OCFO'');
Office of Inspector General (``OIG'');
Office of Policy and Environmental Information; and
Office of General Counsel (``OGC'').
The net effect of these transfers is that nearly one-fifth
of the total Superfund appropriation is diverted to other EPA
offices that are not actually involved in cleaning up any
Superfund sites. Congress should find this unacceptable, for
several reasons.
First, $200 million is a lot of money, particularly in
comparison to the total amount that EPA actually spends on
cleanup work. For example, the amount transferred to other
offices in fiscal year was about the same as the total amount
that EPA spent that year on Remedial Design and Remedial Action
at NPL sites--the core mission of the Superfund program. In
essence, Superfund has been spending about as much on indirect
support in non-Superfund offices as it has been spending on
actual cleanup of NPL sites.
Second, the dollar amounts of these annual transfers to
other offices were established years ago. These amounts
apparently have not been revisited in light of the current
level of program support that is actually needed from these
other offices. Thus, it is not clear that these allocations
reflect Superfund's current needs, or that they reflect sound
management decisions about the wisest use of public funds.
Third, we know of no sound policy reason why the Superfund
program should pay for the support of OARM, OCFO, and OIG,
among others. These support offices provide shared services to
EPA's many programs, which is why these offices are directly
funded by Congress as part of EPA's annual appropriation. The
current practice of having the Superfund program pay for these
shared services is a glaring departure from the normal
practice, both at EPA and throughout the Federal Government.
Finally, apart from the magnitude of these transfers to
other offices, the transfers are open-ended, in the sense that
any funds not actually used by the offices receiving the
transfer apparently remain available for their use in
subsequent fiscal years. Any funds not actually used in a given
year should be returned to OSWER at the end of that year, so
that they may be used on cleanups.
For all of these reasons, we recommend that EPA scrutinize
its use of the annual Superfund appropriation and conserve more
of that money for the core mission of the Superfund program.
III. EPA SHOULD MAKE ITS NPL LISTINGS FOCUSED AND TRANSPARENT.
Each new site listed on the NPL imposes long-term financial
obligations on the Superfund budget for many years to come. We
believe that new sites should be listed on the NPL only after
(1) a specific finding that they require Federal intervention
because no other options will work (``the tool of last
resort''), and (2) a transparent process that allows the public
to comment fully on the listing. We address these two points in
turn.
A. NPL LISTING SHOULD REMAIN THE ``TOOL OF LAST RESORT.''
In thinking about the purpose and scope of the NPL, it is
helpful to bear in mind the lessons learned during the past 25
years in three main areas:
the universe of contaminated sites;
the alternatives available for addressing those sites;
and
the strengths and weaknesses of the Superfund NPL
program.
We briefly address each of these points below, before
explaining why the NPL is, and should remain, the ``tool of
last resort.''
First, experience has dramatically changed our knowledge
about the number and character of contaminated sites throughout
the country, as well as the risks associated with them. Rather
than facing a few hundred sites, each of which was initially
believed to pose severe threats to public health, it now is
clear that we have a great many sites, most of which pose
relatively small, if any, risks. For example, one EPA count of
potential Brownfield sites indicated over 600,000 sites
perceived to be affected by contamination, the great majority
of which either are being addressed through State programs or
pose no severe or immediate risk to human health or to the
environment. These factors mean that instead of ``making a
Federal case'' out of each site, the framework for response
should emphasize state, local, and private efforts, rather than
``making a Federal case'' out of each site.
Second, there are now more ways to address contaminated
sites than when Superfund was enacted in 1980. Virtually all
states have developed their own ``mini-Superfund'' programs and
voluntary cleanup programs that have achieved success. In
addition, at the Federal level, EPA's RCRA corrective action
program governs thousands of operating facilities, and another
program covers underground storage tanks.
Third, Superfund has attached a lasting stigma to some
sites and the communities that surround them. In many cases,
Superfund has also imposed excessive operational, legal, and
financial restrictions on these sites that will interfere with
their future reuse or redevelopment. Moreover, the cost at
which Superfund has achieved results ? some $35 billion in EPA
appropriations alone since 1980, and at least that much more in
private sector spending--is widely viewed as far higher than
necessary or justified in light of the risks being addressed.
In hindsight, it seems clear that many sites addressed
under Superfund did not present major risks to human health or
the environment.\4\ Instead, sites were listed on the NPL based
on fairly crude assessments of their potential risks. Once a
site is listed on the NPL, however, the focus shifts from risk
reduction to ``cleanup,'' where progress is much slower and
completion is maddeningly elusive. Ironically, this focus on
``cleanup'' often delays or limits the risk reduction that
should be Superfund's focus.
---------------------------------------------------------------------------
\4\See, e.g., U.S. General Accounting Office, Environmental
Protection ? Meeting Public Expectations With Limited Resources 17--18
(1991) (GAO/RCED--91--97) (health risks from contaminated sites ranked
relatively low by EPA scientists, but relatively high by the public).
---------------------------------------------------------------------------
In light of this experience, it is clear that the NPL
should be the tool of last resort--a tool that because of its
unique nature should only be used in those situations that
require such a high-cost, inefficient mechanism. EPA adopted
this term--``the tool of last resort''--some years ago as its
unofficial policy, but then failed to communicate this policy
clearly in its actual NPL listings. As we show below, the
resulting lack of transparency makes it difficult for local
communities or other interested parties to understand why some
sites are listed and others are not.
The circumstances warranting use of the Superfund NPL as
``the tool of last resort'' include sites that:
are severely contaminated; and
pose immediate or severe risks; and
have no near-term prospect of cleanup by viable PRPs.
Apart from the sites that meet the above criteria for NPL
listing, nearly all other sites should be managed under other
programs, including the RCRA corrective action program and the
full range of State cleanup programs. If those other programs
are viewed as deficient in some respects, then those programs
should be improved, rather than shifting sites to Superfund and
thereby removing the incentive to remedy the perceived
shortcomings of those other Federal and State programs.\5\
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\5\This same approach should also govern NPL delistings or
deletions. It makes little sense to keep a site in the NPL universe
once it no longer meets the listing criteria.
---------------------------------------------------------------------------
Importantly, it is fully expected that PRPs--private
companies, as well as governmental departments and agencies--
will continue to perform and fund cleanups at sites they have
contaminated. The point here is simply that Superfund is not
the appropriate mechanism to address most of these sites.\6\
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\6\Similarly, EPA should discontinue its ``Superfund Alternative
Approach,'' which brings sites into a parallel program where they
compete with NPL sites for resources.
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We now turn to the process that EPA uses to list sites on
the NPL, with a focus on the need for transparency regarding
the reasons why sites are being listed at all.
B. EPA SHOULD GIVE ALL STAKEHOLDERS A MEANINGFUL OPPORTUNITY TO COMMENT
ON LISTINGS THAT ARE TRANSPARENT.
When it comes to transparency in government, more is
better. Yet considering the importance of NPL listings, EPA's
approach is relatively opaque--EPA never explains why it lists
sites on the NPL.
EPA adds sites to the NPL each year. Yet EPA does so
without offering any explanation of what it seeks to accomplish
by listing the new sites, what other option(s) it considered
for addressing those sites, or why it believes the other
option(s) were inadequate.\7\ Because EPA refuses to reveal its
thinking, local communities and other interested parties have
no opportunity to submit meaningful comments on proposed NPL
listings.
---------------------------------------------------------------------------
\7\EPA's Federal Register notices give the names and locations of
the sites EPA proposes to list on the NPL, but they never explain what
EPA hopes to accomplish by listing the sites. See, e,g., 72 Fed. Reg.
53,5--(September 19, 2007) (proposing to list 12 new sites on the NPL
without giving any reasons for doing so).
---------------------------------------------------------------------------
To address this deficiency, EPA should include in each
proposed NPL listing a statement that describes the other
approaches that EPA considered for addressing the site (e.g.,
State voluntary cleanup program). EPA should also explain why
it believes NPL listing is the best approach for each site.
Based on that statement, the public could then submit
comments that address the full range of possible approaches to
a site. Such comments might point out the availability of other
approaches to getting the site cleaned up. EPA would then
consider those comments before making a final decision on
whether or not to list the site. The net result would be a huge
increase in transparency, without any added cost or delay.
In sum, strong centralized management of the NPL listing
process will help insure that the NPL remains ``the tool of
last resort,'' so the Superfund will be conserved for orphan
sites. Second, greater transparency in the listing process will
help ensure that EPA has considered all viable options for
addressing a site.
IV. SENIOR MANAGERS AT EPA HEADQUARTERS SHOULD BE ACTIVELY INVOLVED IN
KEY DECISIONS ABOUT SITE CLEANUPS.
After NPL listings, the next most important decisions in
the Superfund program are the selection of final cleanup plans
for NPL sites. Each year, EPA issues new Records of Decision
(``RODs'') that select remedies for NPL sites around the
country.
As a practical matter, each new ROD imposes financial
obligations on the Superfund budget for years to come. If a
site has no viable PRPs, or if the PRPs fail to step forward,
then EPA eventually ends up paying for the cleanup. In this
way, each new ROD effectively controls some of Superfund's
future spending. Given the high cost of some cleanups, these
``commitments'' can amount to tens of millions of dollars.
Because the RODs are so important in shaping Superfund's
long-term financial needs, the senior program officials at EPA
Headquarters should review them closely before the final
decisions are made. But that is not the norm today. Instead,
EPA's Regional Offices usually have the final say on these
cleanup decisions.
Specifically, under an EPA delegation of authority dating
back to 1994, most new RODs are signed by Division Directors in
the 10 Regional Offices. Review by senior program management at
EPA Headquarters is typically quite limited. For all practical
purposes, EPA Headquarters does not actively manage the rate at
which the Superfund program takes on new financial obligations
each year.
We recommend that EPA take several actions to address this
problem:
revise its delegation of authority so that senior
managers at EPA Headquarters review new RODs before they are
signed;
expand its National Remedy Review Board so the Board can
review more sites and help insure that future remedy decisions
are consistent with decisions at similar sites, technically
sound, and, as required by section 121(a) of CERCLA, cost-
effective; and
revisit and expand its use of the Fund-balancing ARAR
waiver, the ``inconsistent applications of State standard''
ARAR waiver, and the Technical Impracticability ARAR waiver to
facilitate the selection and prompt implementation of cost-
effective remedies.
V. EPA SHOULD SPEND LESS ON OVERSIGHT OF WORK PERFORMED BY EXPERIENCED
PRIVATE PARTIES.
A decade ago, then-EPA Administrator Carol Browner
recognized that EPA devotes excessive contractor dollars and
excessive full-time equivalent personnel to duplicative
technical work and to monitoring the studies and cleanup work
performed by private parties (``oversight''). In a 1995
Administrative Reform, and again in guidance a year later,
Administrator Browner pledged a 25 percent reduction in
oversight at sites with capable and cooperative PRPs.
Despite that 1995 proclamation, however, EPA has yet to
implement the necessary across-the-board reduction in oversight
spending, or even institute a tracking system for its own
oversight spending. In fact, EPA only recently embraced the
general policy of tailoring oversight levels to reflect the
experience of the private party and its contractor, the
complexity of the site, the nature and strength of any public
concern, etc.\8\ In our experience, EPA typically performs the
same amount of oversight of PRPs that have successfully
performed numerous cleanups at other sites as it did many years
ago when those PRPs were just beginning to work on Superfund
sites. Clearly EPA could free up additional resources for
remedial construction at NPL sites by fulfilling its 10-year
old pledge to reduce substantially its oversight of work
performed by experienced private parties.
---------------------------------------------------------------------------
\8\See Using RCRA's ``Results-Based Approaches and Tailored
Oversight Guidance'' When Performing Superfund PRP Oversight (December
22, 2006). Having belatedly embraced the policy of ``tailored
oversight,'' EPA now needs to develop training and communications tools
to ensure that this new policy takes hold in the 10 Regional offices.
This will be made more difficult by the bureaucratic reality noted
earlier: the EPA Regions are accustomed to a highly decentralized
system where Headquarters has delegated most of the key decisionmaking
authority.
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VI. EPA SHOULD REFOCUS THE REMOVAL PROGRAM ON ITS ORIGINAL PURPOSE OF
ADDRESSING EMERGENCY SITUATIONS.
The Superfund removal action program was designed primarily
to address emergency situations that required an immediate
response. Yet today, relatively few removal actions involve
emergencies.
In fact, most removal actions now consist of so-called
``time-critical'' actions, where EPA believes that work should
be commenced within 6 months, and ``non-time-critical''
actions, where there is even less urgency involved. Of the
2,440 removal actions that EPA selected during the period from
fiscal year through fiscal year 9, a total of 1,892 (77.5
percent) were either ``time-critical'' or ``non-time-critical''
actions.\9\ Thus, less than one-fourth of all removal actions
involved emergency situations.
---------------------------------------------------------------------------
\9\K. Probst, et al., Superfund's Future--What Will It Cost? at 25,
Table 2--4 (2001).
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Given the availability of other Federal and State cleanup
programs, it appears that spending some $250 MM/yr to perform
primarily non-emergency actions is not a wise use of the
Superfund budget. Superfund removal actions should focus on
those sites, orphan or otherwise, that need immediate action to
address actual emergencies.
The point here is not to launch a debate over the precise
contours of the term ``emergency.'' Rather, the idea is to
limit the removal program to sites that present an emergency
under some reasonable definition of that term. Most Superfund
removal actions today, by EPA's own definitions, do not involve
emergencies in any sense of the term. Accordingly, the removal
program should be refocused on its original purpose.
------
Response by Michael W. Steinberg to an Additional Question
from Senator Boxer
Question 1. The Superfund statute gives EPA the role of
helping to protect the public interest by ensuring that
cleanups are done right, so that families can safely raise
their children and communities can safely use their land. In
your testimony, you call for reducing such oversight. How would
inadequate cleanups be addressed if reduced oversight results
in problems with cleanup?
Virtually all potentially responsible parties (``PRPs'')
recognize and agree that appropriate oversight of investigative
and cleanup work performed by PRPs constitutes an essential
safeguard toward assuring proper performance of the work and
enhancing public confidence. That said, however, the manner in
which oversight has been performed under Superfund has long
been a source of friction between EPA and PRPs.
EPA's Superfund program grants to the Remedial Project
Managers in the Regions extremely broad discretion to tailor
their level of oversight activities based on a host of site-
specific variables, including the complexity of the site, the
particular phase of the Remedial Investigation of Feasibility
Study (``RlfFS'') or Remedial Design of Remedial Action
(``RDfRA'') work involved, and the caliber of the PRP technical
team that is performing the work. Despite this inherent
flexibility, however, EPA oversight spending has frequently
reached excessive levels in relation to the scope and cost of
the work being performed. Of particular concern are direct
contract expenditures to pay for the services of EPA's
oversight contractors.
In general-and recognizing that major differences exist
from Region to Region and from site to site--EPA project
managers have failed to maintain effective control over the
outside contractors who actually perform the vast majority of
oversight activities. Those contractors often determine how
much oversight, and what kind of oversight, is performed--even
though the contractors have a direct financial interest in
maximizing such oversight.
EPA PLEDGES TO REDUCE OVERSIGHT
The clamor for oversight reform was one of the reasons that
EPA's 1995 Superfund Administrative Reforms featured a reform
entitled ``Reduce Oversight for Cooperative Parties.''
Specifically, Administrator Carol M. Browner declared that EPA
would ``reward [cooperative] parties by significantly reducing
or tiering oversight while continuing to exercise sufficient
oversight to ensure that the work is performed properly and in
a timely manner.''
In explaining this reform, EPA stated:
As the Superfund program has matured, parties have
developed a considerable body of experience in conducting
response activities at sites. Some not only have used this
experience to perform high quality work but have acted
cooperatively with EPA throughout the cleanup and enforcement
processes. In recognition of this development, and to promote
further cooperativeness, EPA will reward such parties by
significantly reducing or tiering oversight while continuing to
exercise sufficient oversight to ensure that the work is
performed properly and in a timely manner. Reduction of such
oversight will result in decreased transaction costs for EPA
and cooperating parties.
On July 31, 1996, EPA's two lead Superfund offices jointly
issued guidance on the implementation of this new reform. The
guidance contained several key directives.
First, it established a specific numerical goal for
reducing oversight. According to the oversight activities.''
Moreover, ``EPA's overall goal is for a nationwide 25 percent
reduction in oversight costs over the next year at these 100
sites.''
Second, the 1996 gUidance also called for expanding the
reform beyond the initial 100 sites. It directed the Regions to
evaluate ``every site where the PRP is performing the RifFS,
the RD/RA, or the [EE/CA] and response action for non-time-
critical removals'' to determine whether ``the level of
oversight can be reduced without reducing the level of
protection at a site.'' Where such reductions could be
achieved, the guidance specifically directed that ``[reductions
in oversight costs should be implemented as soon as possible.''
Third, the 1996 guidance directed that ``[a]t the time of
annual billing, Regions should provide PRPs with an estimate of
the oversight costs for the next year.''
In May of 1997, the General Accounting Office (``GAO'')
reported to Congress on EPA's implementation of the 1995
administrative reforms. With respect to the ``Reduced
Oversight'' reform, GAO stated:
According to EPA's annual report on administrative reforms
and other agency documents, EPA has reduced or plans to reduce
its oversight of potentially responsible parties at over 100
sites. Although EPA stated that such reduced oversight lowers
litigation costs for EPA and cooperating parties, EPA officials
could provide us with no data to demonstrate such results to
date.
At about the same time that GAO issued its report, Dr. J.
Winston Porter, former Assistant Administrator of the Office of
Solid Waste and Emergency Response (``OSWER''), issued a
proposal for ``Simplifying Superfund.'' Dr. Porter described
the oversight problem (and the solution) as follows:
Another prime reason why site studies take so long is that
regulators, particularly EPA and their contractors, conduct
overly tedious and lengthy reviews of every aspect of work by
PRPs or others. These reviews include such repetitive
``process'' items as work plans, sampling plans, and quality
assurance plans.
It is first recommended that the amount of money allocated
to regulatory oversight be reduced in order to truncate the
process.
Second, EPA should sharply curtail the number of documents
requiring EPA or other regulatory review.
That was more than a decade ago. Today, EPA still does not
track how much it spends on oversight. As a result, it is
impossible to determine whether oversight has actually been
reduced, as Administrator Browner pledged in 1995.
TAILORED OVERSIGHT
To its credit, EPA did issue Superfund guidance last year
that incorporated a ``Tailored Oversight'' guidance document
previously issued by the RCRA corrective action program.
Conceptually, tailoring oversight to the needs of particular
sites ensures that cleanups are done right, while freeing some
of EPA's limited resources for other important tasks.
It remains to be seen what impact this recent Headquarters
guidance document will have in a program as heavily
decentralized as Superfund. It would be important to know, for
example, whether program managers at EPA Headquarters have
undertaken any concrete initiatives to encourage the Regions to
apply the Tailored Oversight approach, or to monitor and track
future Regional decisions regarding oversight.
RELATIONSHIP TO CLEANUPS
With this background, it must be emphasized that the
possibility of an ``inadequate cleanup'' being performed at a
site is not a sound reason to maintain the current regime of
virtually unlimited oversight. First, most PRPs already have
every incentive to develop and perform sound cleanups. They
seek to be responsible corporate citizens and community
members. PRPs also know full well that their legal liability
does not end when they finish the cleanup.
Second, if a cleanup is ``inadequate,'' it is apt to be
because new information has come to light that was previously
unknown to both EPA and the PRPs. Perhaps some contamination
was not detected, or perhaps new scientific information is
released about a particular compound that was detected. This
sort of thing happens occasionally, but infrequently. The key
point is that it cannot be prevented by piling on oversight
resources on the front end.
Third, if a cleanup is found to be ``inadequate,'' the PRPs
typically remain legally responsible for any additional work
that is needed. Section 122(f) of CERCLA severely limits the
terms of cleanup.
------
Response by Michael W. Steinberg to an Additional Question
from Senator Inhofe
Question 1. Many think that when the Superfund tax was in
effect it was some kind of ``polluter pays'' tax. Is this how
the Superfund tax worked and if reinstated today how would it
work?
Response. In answering this question, we first address the
rationale for the Superfund taxes, and then explain why
Superfund today is a ``polluter pays'' program even though the
taxes expired over a decade ago.
THE RATIONALE FOR THE SUPERFUND TAXES
When Congress enacted Superfund in 1980, it was generally
expected that EPA would perform most of the cleanups, using
public funds to pay for them. A typical Superfund site was
expected to be an abandoned dumpsite.
In that context, the Superfund taxes seemed a natural
mechanism to shift financial responsibility for the cleanups to
the sectors of society that were perceived to have largely
caused the problem. In the early 1980's, EPA in fact did most
of the investigations and cleanups. For many companies, their
tax payments in those years far exceeded their payments for
work at sites, and EPA used its Superfund budget to clean up
many sites that had been contaminated mainly by industry.
During the 1980's, however, EPA began to successfully use
the law's Draconian liability provisions both to recover its
costs from PRPs and, more importantly, to require PRPs to
perform cleanup work themselves. This evolution in EPA's
enforcement approach led to a better understanding of the
problems that gave rise to Superfund sites in the first place.
As EPA began to identify and confront the responsible
parties at sites, it became evident that the original
assumption that Superfund sites were created by oil, chemical,
and large manufacturing and service companies was clearly in
error. In fact, the responsible parties include many medium and
small businesses and many industrial sectors not subject to
substantial--or any--Superfund taxation, as well as local and
State governments, defunct and unidentifiable parties, and, in
a surprising number of cases, the Federal Government itself.
In 1989, a Senate committee report urged EPA simply to find
a few deep-pocket PRPs at each site and force them to do the
work, using the strong-arm liability power of Superfund. At
about that same time, EPA issued its ``Enforcement First''
policy, which was intended to put the responsibility for
investigation and cleanup on the PRPs at every site where
viable PRPs could be found, thereby saving the Superfund budget
for sites without viable PRPs.
EPA's dramatic change in practice is documented in the
table below, which is reprinted from page 43 of Superfund's
Future: What Will it Cost?, published in 2000 by Resources for
the Future (``RFF''). From 1980 to 1986, PRPs performed the key
RifFS studies at only 24 percent of the sites, and they
performed the cleanup remedy at only 33 percent of the sites.
But from 1991 through 1999, when EPA's ``Enforcement First''
policy was in effect, these figures roughly doubled. PRPs
performed 46 percent of the RIfFSs, and 73 percent of the
actual cleanups. EPA understood that this trend allowed it to
leverage its Superfund budget far more effectively, and so EPA
has worked hard to have PRPs do the work at every site where
liable parties can be found.
[GRAPHIC] [TIFF OMITTED] T3576.002
As a result of ``Enforcement First,'' PRPs perform the
cleanups and reimburse EPA for its response costs at most
sites. For a smaller number of sites that have viable PRPs, EPA
has done the work and the PRPs have reimbursed EPA for its
expenditures, including its oversight costs and its indirect
costs.
Today, virtually the only NPL cleanups that EPA actually
pays for are those where no viable PRPs exist--the so-called
``orphan'' sites. These sites generally were not contaminated
by the companies formerly targeted by the three Superfund
taxes. Instead, these sites were contaminated by companies that
are defunct or insolvent, or by other types of generators, such
as municipalities. EPA's narrowly limited role in paying for
cleanups is a fundamental change from the original
expectations. It has resulted from the tenacious and successful
efforts of EPA to implement its ``Enforcement First'' policy.
And it has eroded the basic rationale for imposing the
Superfund taxes in the first place.
COMPANIES RESPONSIBLE FOR CONTAMINATION ARE PAYING FOR CLEANUP, SITE BY
SITE
For more than a decade, companies whose wastes contaminated
sites have been held directly responsible for cleanup costs,
one site at a time. Through payments to investigate and
remediate sites at which they are PRPs, such companies are
paying their fair share to address the national problem. In
fact, at many sites they are paying far more than their fair
share, due to the joint and several liability feature of
Superfund.
At most sites, it is impossible to identify the origin of
much of the waste, so the PRPs that are identified must divide
up the total costs among themselves. This means that each
viable PRP typically pays far more than its proportionate, fair
share of the costs to investigate and remediate the site.
Another factor that increases each PRP's liability is that
the allocations of responsibility usually take place 30 to 50
years after the waste disposal occurred and a number of the
identified PRPs no longer exist. The wastes generated by such
defunct parties are referred to as the ``orphan'' share. Under
joint and several liability, the viable companies have to pay
that share.
In 1995, EPA partially recognized the inequity of that
result and agreed to absorb part of the orphan share, subject
to severe limitations. EPA now absorbs part of the orphan share
in certain settlement agreements, but only up to 25 percent of
the cost of the work to be performed under the settlements, and
only if that amount can be written off against EPA's claim for
past costs at the same site. The Agency recognized that these
constraints meant that responsible parties would still be asked
to pay excessive shares. EPA, ``Interim Guidance on Orphan
Share Compensation for Settlors of Remedial Design/Remedial
Action and Non-Time-Critical Removals'' (June, 1996).
At the same time, EPA also committed to join parties in an
equitable manner rather than focus on a few deep-pocket PRPs.
But in our experience, EPA enforcement efforts continue to
focus mainly on the larger private sector parties alleged to be
involved at sites.
In a nutshell, existing large corporations responsible for
past disposal of hazardous waste are typically required to pay
the full costs of cleaning up the sites where their wastes were
sent--including the ``orphan'' share. Under this approach,
their obligations are discharged in full and then some. Indeed,
at least some of these companies have paid three times--once as
PRPs to remediate their sites, again as the larger viable
parties forced to absorb the orphan shares, and yet again as
corporate taxpayers to support the general Superfund program.
They have more than paid their fair share.
THE SUPERFUND TAXES ARE NOT NEEDED TO IMPLEMENT ``POLLUTER PAYS''
Because viable PRPs are already paying for cleanups, the
Superfund taxes are not needed to maintain the ``polluter
pays'' principle. Superfund is already overwhelmingly a
``polluter pays'' program. It is typically only at ``orphan''
sites, where no responsible parties exist, that EPA performs
cleanups using general revenues. This is entirely fair, because
the companies formerly targeted by the Superfund taxes did not
create those ``orphan'' sites.
It must also be recognized that there are other important
respects in which the ``polluter pays'' principle has been
departed from under Superfund. That is because EPA and Congress
have elected to release certain groups of responsible parties
from their full liability as PRPs, either by providing
preferential settlements (as in the case of municipalities or
very small private parties) or by granting full exemptions (as
in the case of scrap dealers, certain small businesses, and
lenders). In many instances the shares of liability that would
have fallen on these parties have been imposed on the remaining
PRPs. These dynamics have distorted any pure application of the
``polluter pays'' principle. They have instead substituted a
``Deep Pocket-Easy Target'' policy. Government should not
further compound this distortion of ``polluter pays'' by
reimposing the taxes on a group that has paid, and is paying,
more than its fair share.
2. When the Superfund tax was in effect, did it correlate to the amount
of money that EPA spent on cleanups?
The short answer is ``no.'' This fact was documented by the
U.S. Government Accountability Office, which in 2005 reported
that ``total funding for the Superfund and
Brownfields programs and the Superfund-related programs of
the ATSDR and NIEHS, in current year dollars, remained
relatively constant from fiscal year 1993 to fiscal year
2005.'' U.S. Government Accountability Office, Hazardous Waste
Programs: Information on Appropriations and Expenditures for
Superfund, Brown fields, and Related Programs 2 (June 30,2005)
(GAO-05-746R) (emphasis supplied). In other words, Congress
appropriated roughly the same amount for Superfund in each of
those 13 consecutive fiscal years, from fiscal year to fiscal
year 5. For example, Congress appropriated almost the same
amount (in current year dollars) in fiscal year 5, the last
year that the three Superfund taxes were still in effect, as it
did in fiscal year 6, a decade after those taxes had expired.
3. Why do you think there is a decline in the number of cleanups from
the 1990's?
There has certainly been a decline in the average number of
sites listed by EPA each year as being ``Construction
Complete,'' i.e., physical construction of the remedy has
occurred. This decline is widely misunderstood.
First, the enactment and implementation of the Resource
Conservation and Recovery Act, the Toxic Substances Control
Act, and other environmental statutes that impose liability for
releases of hazardous substances has already achieved the
desired end result: fewer sites that require remediation are
being created. To presume that the number of sites requiring
cleanup under CERCLA should remain constant, or even increase,
is to ignore the positive effects of these other environmental
statutes.
Second, investigating and cleaning up a site on the
National Priorities List (``NPL'') typically takes about a
decade and, for complex sites, several decades. That process is
sometimes referred to as the ``remedial pipeline.'' EPA has
calculated that the average duration of this process from start
to finish (not counting post-construction operation and
maintenance) is 8.1 years. RFF, on the other hand, found that a
more accurate average duration is over 11 years. And even when
``Construction Complete'' is achieved, long years of operation
and maintenance still lie ahead.
Thus, the number of sites that reach ``Construction
Complete'' in any given year is only one measure of progress,
and frequently not the most useful one. An exclusive focus on
that factor can obscure an accurate evaluation of total
progress being made, including the full range of intermediate
and ultimate milestones being reached, at all of the Superfund
sites where work is underway.
Superfund in fact has made great progress in cleaning up
the sites on the NPL. After many years of tedious efforts to
move sites through the initial stages of the remedial pipeline,
EPA has achieved ``Construction Complete'' at more than 1,000
NPL sites. With over two-thirds of the NPL sites now having
accomplished this objective, it should come as no surprise that
at some point there would be a reduced number of sites crossing
that particular checkpoint each year. This in no way suggests
that there has been a decline in the overall level or pace of
cleanup activity.
Another factor, perhaps less obvious, helps to explain the
reduced numbers of ``Construction Completes'' in recent years.
EPA made a deliberate policy choice in the early 1990's to
focus first on those NPL sites that could be completed
relatively quickly--the ``low-hanging fruit'' of the Superfund
program--and to defer work on many of the larger, more complex
NPL sites.
The payoff from this policy choice was record high numbers
of ``Construction Completes'' throughout the 1990's. But in a
way, EPA was robbing Peter to pay Paul. EPA now faces a smaller
portfolio that is dominated by larger and more complex NPL
sites--and a public that has grown accustomed to those
atypically high completion rates.
The numbers can be looked at in many ways. In the first 20
years of the program, 757 sites reached the point of
``Construction Complete,'' 411 of them in the 5 years from 1996
through 2000. Those statistics yield an average of 82
completions per year for those 5 years, but an average of 38
completions per year for the 20-year period as a whole. Neither
``average'' is very meaningful, however, because at any given
point in time, so much work is being done at so many sites that
simply is not reflected in the number of sites that happen to
reach any single milestone in any particular year.
4. What are some ways that EPA could better manage their current budget
of $1.24 billion dollars?
The Superfund program today faces a range of financial
management challenges. The central theme that connects them is
the pressing need for Superfund to live within its means.
Currently, the Superfund program:
loses a large part of its annual appropriation each year
to other EPA offices that do not perform cleanups;
takes on new long-term financial obligations each year
without strong management review, as new NPL sites are listed,
new Superfund Alternative (``SA'') sites are designated, and
new Records of Decision are signed;
spends money each year on projects that are not high
priorities and activities that are not essential; and
fails to maximize the use of private sector funds by
failing to offer incentives for private companies to perform
cleanups.
Taken together, these weaknesses mean that the Superfund
program is not yet effectively managing either its ``income''
or its spending to the extent necessary for the program to live
within its means. The following recommendations fall into
categories that match up closely with these weaknesses.
Specifically, EPA should:
1. CONSERVE FUNDS FOR OSWER
Currently, some $220 MM/yr of EPA's annual Superfund
appropriation is transferred to other EPA offices that provide
varying degrees of support for the Superfund program.
These include:
Office of Research and Development (``ORO'');
Office of Administration and Resource Management
(``OARM'');
Office of the Chief Financial Officer (``OCFO'');
Office of Inspector General (``OIG'');
Office of Policy and Environmental Information; and
Office of General Counsel.
The net effect of these transfers is that nearly one-fifth
of the total Superfund appropriation is redirected ``off the
top'' to other EPA offices that are not involved in cleaning up
sites. This is deeply troubling, for several reasons.
First, the amount of money involved here is very large,
particularly in comparison to the total amount that EPA
actually spends to clean up sites. For example, the amount
transferred to other offices in fiscal year is about the same
as the total amount that EPA spent on RD/RA at NPL sites, the
most important elements of the Superfund cleanup program. To
put it another way, Superfund is spending as much on
administration and indirect support--most of it provided by
offices outside of OSWER--as is spent on actual cleanups of NPL
sites.
Second, the dollar amounts of these transfers were
established years ago, and have not been revisited in light of
the level of program support currently provided by these other
offices. Thus, there is no basis to believe that the
allocations reflect current program needs.
Third, and last, there is no sound policy reason for the
Superfund program to pay for the support services of OARM,
OCFO, and OIG, among others. These support offices provide
shared services to EPA's many programs, and so they are
directly funded by Congress as part of EPA's annual
appropriation. The practice of having the Superfund program pay
for these services is a glaring departure from the normal
practice, both at EPA and throughout the Federal Government.
Finally, apart from the magnitude of these transfers to
other offices, the transfers are currently open--ended, in the
sense that funds not actually used by the offices receiving the
transfer remain available for their use subsequent fiscal
years. Any unused funds should be returned to OSWER at the end
of each fiscal year so they can be used for cleanups.
2. LIMIT GROWTH OF SUPERFUND DOCKET TO SITES THAT CANNOT BE ADDRESSED
THROUGH OTHER PROGRAMS
Each new site listed on the NPL--and each new site
designated as a SA site pursuant to EPA guidance--effectively
imposes long-term financial obligations on the Superfund budget
for years to come. New sites should not be listed or designated
absent a clear showing that no viable PRPs are willing to
perform or fund the work; the sites require Federal
intervention; and no other alternative programs will work
(``the tool of last resort'').
Currently, EPA lists sites on the NPL (and designates sites
as SA sites) without making these findings. Sites are added to
the Superfund docket even though viable PRPs exist. Sites are
added based upon very limited data. Sites are added without
attempting to quantify the actual risks they may pose.
Moreover, EPA's current NPL listing process is not very
transparent. As a result, some 20-30 sites are typically added
to the NPL each year with little explanation of what other
options were considered or why those options were judged
inadequate. (EPA recently began including in the docket a brief
statement about the ``Need for NPL Listing,'' but this alone
does not permit stakeholders to evaluate, or comment on, EPA's
decision--making.) Similarly, the SA designations are made
pursuant to poorly defined criteria and are shielded from
public review and scrutiny.
Greater EPA Headquarters management control over the NPL
listing process and the SA designation process is mandatory in
order to control the growth of the Superfund docket, which is
an essential element of managing Superfund's total ``debt''
load into the future. Greater transparency in both processes is
also critically needed.
3. REDUCE UNNECESSARY SPENDING
The total amount actually available for cleanup each year
is further limited by the fact that EPA spends more money than
is necessary on remedial actions and on oversight. This
situation could be improved in several ways.
A. Remedial Actions
Each new Record of Decision (``ROD'') selects a remedy for
a Superfund site, effectively imposing long--term financial
obligation on the Superfund budget for years to come. Yet
dozens of new RODs are issued each year, and they are signed by
EPA's Regional Offices (pursuant to delegations of authority),
with little involvement by the Superfund program management at
EPA Headquarters. In practical terms, then, program management
is not managing the rate at which the program takes on new
financial obligations each year.
EPA should take several actions to address this problem:
EPA Headquarters should review most new RODs before they
are signed;
the National Remedy Review Board should be given more
authority to ensure that future remedy decisions are both
technically sound and, as required by section 121 (a) of
CERCLA, cost-effective;
EPA should expand its use of the Fund-balancing
Applicable or Relevant and Appropriate Requirement (``ARAR'')
waiver, the ``inconsistent applications of State standard''
ARAR waiver, and the Technical Impracticability ARAR waiver to
facilitate the selection and prompt implementation of cost-
effective remedies;
Superfund's approach to risk assessment should emphasize
current land uses, realistic exposure scenarios, and sound
science.
B. Oversight of Cleanups Performed by Private Parties
As discussed above at pages 1-4, EPA could quickly free up
additional resources for remedial construction by fulfilling
its 12-year old pledge to reduce its oversight of work
performed by PRPs.
4. FOCUS ON PUBLIC HEALTH THREATS
CERCLA authorizes the President to take actions to protect
public health and the environment. Section 104( a)( 1) of
CERCLA, however, directs the President to ``give primary
attention to those releases . . . [that] may present a public
health threat.'' Despite this statutory directive, the
Superfund program continues to devote some of its scarce
dollars to projects that present no ``public health threat,''
and indeed may pose no significant risks to human health at
all, but instead pose purely ecological risks. EPA should
prioritize its spending so that all of the NPL sites with
significant human health risks are addressed before any
resources are directed toward sites that present only
ecological risks.
5. MAXIMIZE USE OF PRIVATE SECTOR FUNDS
Finally, the success of the Superfund program is heavily
dependent upon leveraging the resources of PRPs so that most
cleanups are performed by PRPs rather than by EPA. Although EPA
has made progress in this regard, it has yet to maximize the
use of PRP resources. Indeed, given recent court decisions that
restrict the ability of private PRPs to file contribution
claims against other liable parties, EPA needs to do far more
than it has done in the past simply to maintain the current
level of PRP-Iead cleanups.
To maximize the number of PRP-Iead cleanups, EPA should
provide PRPs with greater incentives to reach settlements.
Among the many potential incentives are the following:
meaningful orphan share funding, where EPA agrees to
either pay part of the costs, or to waive some or all of its
claim for past costs, in order to account for orphan shares;
expanded access to special site accounts, which typically
contain money collected from small parties that should be
disbursed to the performing parties at the site;
``carve-outs'' whereby EPA pursues non-settlers for
portions of site work and/or EPA past costs; and
consent decree language that is more flexible and
balanced than the provisions of the Model RD/RA Consent Decree.
In closing, it was a pleasure to be able to testify before
the Subcommittee at the October 17, 2007 hearing. If you or
your colleagues have any questions about this letter, or
require any additional information, I would be pleased to be of
assistance.
Senator Clinton. Thank you very much, Mr. Steinberg.
Our final witness is Lenny Siegel, Director of the Center
for Public Environmental Oversight.
STATEMENT OF LENNY SIEGEL, DIRECTOR, CENTER FOR PUBLIC
ENVIRONMENTAL OVERSIGHT
Mr. Siegel. Senator Clinton, members of the Subcommittee, I
appreciate the opportunity to appear before you today to relate
what I have learned about Superfund from communities throughout
the United States.
Last week, when I contacted grassroots activists from the
communities that I am featuring in my testimony, they responded
promptly, and were in fact excited that their stories might be
told in the Nation's Capital.
Over the past quarter century, the Comprehensive
Environmental Response, Compensation and Liability Act,
commonly known as Superfund, has been an important instrument
for protecting public health and the environment in the United
States. Today, with the Superfund account depleted, seriously
contaminated sites suffer from inadequate cleanup,
inefficiencies, and inequities.
I highlight four sites in my community plus three others,
which I have visited within the past year, to illustrate what
the shortage of fund money means to the people who live, work
or attend school on or near some of the Nation's most
contaminated properties. These include sites on the Superfund
national priorities list, as well as many that should be. My
focus today is onsites that are dependent upon the Superfund
itself.
At the Orion Park Military Housing Area in Mountain View,
California, the shortage of resources has severely handicapped
U.S. EPA's ability to address offsite sources, preventing it
from requiring the Navy to conduct onsite cleanup, and forcing
NASA's adjacent Ames Research Center to expend its own
resources on contamination migrating from the site.
Contamination prevented the development of new military
housing on the site, and the military personnel at the planned
Armed Forces Reserve Training Complex will be a long-term risk
from vapor intrusion and the migration of subsurface
contamination into buildings.
I might add there are no current exposures there. They
evicted all the residents. A local paper wrote, ``the Army's
plan to build a huge training center at Moffett Field on a site
it knows is contaminated with carcinogenic gas should be halted
at least until warnings from local environmentalists are
acknowledged and the dangers are mitigated.''
In Victor, NY, trichloroethylene from apparent illegal
dumping has poisoned private wells and released toxic vapors
into homes. A fund-led cleanup could protect the impacted
families, but the Superfund does not have enough money for it
to make much sense even to add the site to the NPL. Earlier
this month, Jackie Barry, whose family home has been directly
impacted, recently sent a message to ``anyone who cares'' on
the Internet: ``it has been 6 months since news broke of the
contamination. It has been 17 years that it existed. Why would
we think that anything could be accomplished? I sit here in my
home with my family and pray every day that someone will
listen. For God's sake, there has been death and illness and
who knows what else is here.''
In Ambler, PA, EPA successfully capped two asbestos waste
piles 14 years ago, but exposed piles not on the National
Priorities Listed are slated for redevelopment, with neighbors
fearing that the current exposures will be increased with the
release of development-associated asbestos dust, and would like
EPA to list the site and fund the response. But as long as the
fund is depleted, this appears unlikely. In my written
testimony, I have a picture of what they call a removal action
at that site. It says ``don't create dust.'' It is a sign.
Sharon McCormick, who lives within breathing distance of
the piles, asked: ``If you can make your presentation to the
Senate, now would be a good time because we are desperate down
here. Development on asbestos waste of this magnitude has never
been done before. Please help me.''
There is consensus support for the dredging of
polychlorinated biphenyls from New Bedford Harbor,
Massachusetts, a Superfund mega-site. This is a place where I
have been in a room where all the agencies do get together.
However, inadequate funding has forced an inefficient start-
and--stop cleanup that is currently slated to stretch out a
quarter century. Henry Bousquet, who grew up near the harbor,
explained: ``My little girls, Phoebe and Payton, are very
young, 3 years and 11 months respectively. At the current rate
of $15 million a year for the Acushnet River Superfund
remediation, Phoebe will be 29 years old, just 3 years younger
than I am now, before it is clean enough for parents to feel
safe about it.''
Today, both sites are already dependent upon EPA funding,
and those that should be added to the National Priorities List,
cleanup is slow and inefficient, and expenses are often borne
by third parties. Replenishing the fund would be a giant step
forward in recognizing, investigating and remediating the most
contaminated sites in America.
I think it is important to go beyond the statistics, go out
and visit these communities, see what it means to people's
homes, to their families, to their property, the fact that we
are not acting quickly enough to remediate these sites. We
aren't even putting them into the pipeline because there is not
enough money. Go out and talk to them and then come back and
decide whether we need money in the Fund or not.
Thank you.
[The prepared statement of Mr. Siegel follows:]
Statement of Lenny Siegel, Director, Center for Public
Environmental Oversight
EXECUTIVE SUMMARY
Over the past quarter century, the Comprehensive
Environmental Response, Compensation, and Liability Act
(CERCLA), commonly known as Superfund, has been an important
instrument for protecting public health and the environment in
the United States. Its tools--addressing response,
compensation, and liability--are like the proverbial three-
legged stool. At many sites, CERCLA collapses when one of those
tools is missing. Across the country, since the Superfund
account was depleted, seriously contaminated sites have
suffered from inadequate cleanup, inefficiencies, and
inequities.
I highlight four sites, all of which I have visited within
the past year, to illustrate what the shortage of Fund money
means to the people who live, work, or attend school on or near
the some of the nation's most contaminated properties.
At the Orion Park Military Housing Area, Mountain View,
California, the shortage of Fund resources has severely
handicapped U.S. EPA's ability to address offsite sources,
preventing it from requiring the Navy to conduct onsite cleanup
and forcing NASA to expend its own resources on contamination
from the site. Contamination prevented the development of new
military housing on the site, and military personnel at the
planned Armed Forces Reserve training complex will be at long-
term risk from vapor intrusion, the migration of subsurface
contamination into buildings.
In Victor, New York trichloroethylene (TCE) from apparent
illegal dumping has poisoned private wells and released toxic
vapors into homes. A Fund-led cleanup could protect the
impacted families, but the Superfund does not have enough money
for it to make much sense even to add the site to the National
Priorities List (NPL).
In Ambler, Pennsylvania, EPA successfully capped two
asbestos waste pile sites 14 years ago, but remaining piles,
not on the NPL, are slated for redevelopment. Neighbors,
fearing that current exposures will be increased with the
release of development-associated asbestos dust, would like EPA
to list the site and fund the response, but as long as the Fund
is depleted, this appears unlikely.
There is consensus support for the dredging of
polychlorinated biphenyls (PCBs) from New Bedford Harbor,
Massachusetts, a Superfund ``mega-site.'' However, inadequate
funding has forced an inefficient start-and-stop cleanup that
is currently slated to stretch out a quarter century.
Today, both at sites already dependent upon EPA funding and
those that should be added to the National Priorities List,
cleanup is slow and inefficient, and expenses are often borne
by third parties. Replenishing the fund would be a giant step
forward in recognizing, investigating, and remediating the most
contaminated sites in America.
CERCLA: A THREE-LEGGED STOOL
The Comprehensive Environmental Response, Compensation, and
Liability Act, commonly known as Superfund, is imperfect, but
over the past quarter century it has been an important tool for
protecting public health and the environment in the United
States. It provides tools for determining environmental cleanup
strategies and technologies, assessing and assigning
responsibility, and providing the resources to remove, treat,
and prevent contact with hazardous substances.
All three tools--addressing response, compensation, and
liability--are necessary. Like the proverbial three-legged
stool, CERCLA collapses when one of its legs is missing. Across
the country, since the Superfund account was depleted,
seriously contaminated sites have suffered from inadequate
cleanup, inefficiencies, and inequities.
From my recent visits to communities with seriously
contaminated sites, I have selected four examples. In each of
these cases, community members have strong reason to believe
that public health and the environment are at risk, and--
whether or not the site is currently on the NPL--that the
insufficiency of the Superfund is a major factor. I believe
that these four case studies each represents many more sites in
the NPL universe.
[GRAPHIC] [TIFF OMITTED] T3576.003
This site, in my own community of Mountain View,
California, is particularly complicated. Originally part of the
Moffett Naval Air Station, its 72 acres sit between NASA Ames
Research Center and Stevens Creek. It was transferred to the
Air Force as a result of the 1991 Base Realignment and Closure
(BRAC) round and re-transferred to the Army after BRAC 1995.
Despite the earlier discovery of other local groundwater plumes
of (VOCs), the Orion Park plume escaped detection until 1999,
when NASA detected trichloroethylene under its adjacent,
downgradient property. Subsequent sampling found widespread TCE
readings in the hundreds of parts per billion range, in the top
two aquifers.
Though the Navy argued that the contamination did not pose
a risk to the hundreds of military families who lived above the
plume, U.S. EPA conducted its own sampling, demonstrating that
vapors from the groundwater plume were rising into an unknown
percentage of the homes. This probably contributed to the
Army's decision to replace the housing in partnership with a
private builder, under the Residential Communities Initiative.
However its private partner decided not to build homes at Orion
Park, because of the contamination.
As an alternative, the Army proposed--and the 2005 BRAC
Commission agreed--to construct an Armed Force Reserve Center
training complex--on thirty acres at Orion Park. 413 full-time
employees will staff the facilities, which will also sup port a
total of 1,500 Soldiers for weekend classroom and
administrative training. To resist the intrusion of toxic
vapors, the Army plans to build engineering controls into all
of its new buildings, but there is no cleanup planned for the
site. In fact, no complete investigation is planned. Meanwhile,
NASA is planning a major treatment system, an air--sparging
barrier to intercept the toxic chemicals as they flow onto Ames
Research Center property y. This will cost over $1 million,
plus long-term operation and maintenance expenses.
[GRAPHIC] [TIFF OMITTED] T3576.004
Why has the Orion Park response stalled? After all, within
a few miles of my house there are at least a dozen National
Priorities List sites, including Moffett Field. At those sites,
the regulators, responsible parties, and the community have
worked together successfully to address the contamination. But
Orion Park is an exception.
For one, the Navy does not accept EPA's determination that
Orion Park is part of the Moffett NPL site. More important, it
argues that all of the contamination originates offsite, south
of Bayshore Freeway (U.S. 101), probably from abandoned
businesses. Most of the other stakeholders, including NASA,
EPA, and community activists, have concluded from site sampling
that TCE and other poisons were released both at Orion Park and
south of 101. Before EPA considers trying to force the Navy to
follow CERCLA at the site, it believes the offsite area needs
to be thoroughly assessed. The Navy says it cannot legally
conduct upgradient groundwater sampling, so the task has fallen
to EPA.
[GRAPHIC] [TIFF OMITTED] T3576.005
And that's where the Superfund comes into play. EPA must
pay for any sampling it conducts from the Fund. But there isn't
enough money to pay for the required investigation. And for
sure, there is not enough money to prevent additional
contamination from migrating under the freeway to Orion Park.
EPA cannot insist that the already recalcitrant Navy--or the
current owner, the Army--undertake cleanup until it addresses
the offsite source.
Thus, the long-term protection of Army personnel who will
work above a shallow groundwater plume on an NPL site is
handicapped because the Superfund cupboard is bare.
Furthermore, NASA's Ames Research Center continues to spend its
own Federal money to address contamination that should have
been captured and treated by other Federal agencies.
[GRAPHIC] [TIFF OMITTED] T3576.006
Earlier this year, the Rochester, New York Democrat and
Chronicle headlined that private wells in Victor, New York were
still contaminated by TCE. Furthermore, as at Orion Park and
many other sites across New York State and across the country,
contamination was also volatilizing into local homes. The
contamination, apparently caused by illegal dumping at the
Syracusa Sand & Gravel mine, was first detected and confirmed
in 1999!
This year New York's Department of Environmental
Conservation (NY DEC) began to pay more attention to the site.
But progress has been handicapped by the absence of a viable
responsible party, to pay for required investigation and
cleanup. That is, DEC has finally interrupted the most
egregious pathways, but actual cleanup is a long way off.
[GRAPHIC] [TIFF OMITTED] T3576.007
In March, therefore, the area's Congressman called upon EPA
to step in and ``take the lead.'' EPA, according to the
newspaper, said that it was ``poised to help if the situation
warranted it.'' An impacted resident reported: ``We recall a
meeting that I held at my home with our State Senator. In this
meeting he described his experience in several environmental
litigation cases as a lawyer (prior to being an elected
official) and his knowledge of the EPA, National Priorities
List and the Federal Superfund. He wondered why the site hadn't
been put on the NPL and then went on to suggest that even if we
had, that right now it was best to have the DEC doing the work
because of minimal resources in the Federal Superfund.''
In Victor and many other sites in the U.S., people are
exposed in their own homes to serious levels of harmful
substances released by polluters, in many cases decades ago. We
have a program for dealing with that: CERCLA. But today
impacted communities are told time and time again: Joining that
program won't help because Superfund has no money.
[GRAPHIC] [TIFF OMITTED] T3576.008
Ambler, Pennsylvania, 15 miles northwest of Philadelphia,
is the birthplace of the American asbestos industry. Ambler
itself grew up as a company town for the Keasby and Mattison
Company (K&M), one of the nation's leading manufacturers of
asbestos products such as electrical insulation, brake linings,
piping, roofing shingles, and cement siding. K&M operated in
Ambler from 1897 to 1962. K&M disposed of defective products
and manufacturing wastes at several locations within the
community. In 1986 EPA placed the piles on Locust Street and at
the K& M main plant on the NPL--listed aptly as the Ambler
Asbestos Piles--and it completed the response, primarily cap
ping, in 1993.
[GRAPHIC] [TIFF OMITTED] T3576.009
[GRAPHIC] [TIFF OMITTED] T3576.010
However, no action was taken at the similar 38-acre BoRit
site, three parcels along the eastern bank of Wissahickon
Creek, less than a mile from the piles on the NPL. A developer
owns a six-acre parcel just across a small creek, Tannery Run,
from three commercial buildings: Sons of Italy, an auto repair
shop, and McDonalds. The second parcel is a reservoir currently
owned by the Wissahickon Watershed Authority. The Wissahickon
Valley Watershed Association hopes to acquire the reservoir and
improve it as a waterfowl preserve. To the northwest of the
reservoir is the former Wissahickon Whitpain Park, owned by the
adjacent township of Whit pain. This triangular park was closed
more than twenty y years ago because of asbestos releases.
[GRAPHIC] [TIFF OMITTED] T3576.011
Over the past year or so, EPA's Environmental Response Team
and the Pennsylvania Department of Environmental Protection
have been investigating the site. Residents have told me that
the entire site is proposed for redevelopment, and that the
environmental response would take place under the brownfields
model. Frequently passing signs warning not to create dust,
they are concerned that any earth movement would release
hazardous chrysotile asbestos into their neighborhood as well
as the creeks, which feed into Philadelphia's water supply.
They favor capping, as at the nearby NPL site. But there is no
plan to place the piles on the NPL, apparently because EPA
doesn't have the money to contain the risk. A local activist
explained, ``I was told both by my Congresswoman and by my EPA
region that listing BoRit on the Superfund list wouldn't help,
because Superfund has no money.''
EPA did its job at the nearby NPL site, but it doesn't have
the resources to do it here. Inadequate Superfund funding is
forcing a brownfields-type response, placing the public at
risk.
[GRAPHIC] [TIFF OMITTED] T3576.012
One of the nation's Superfund ``mega-sites,'' the 18,000-
acre New Bedford Harbor's sediment contains high concentrations
of polychlorinated biphenyls (PCBs) in several areas. Over
100,000 people live within three miles of the site. Though
there were many sources, the largest appears to have been
Aerovox, a manufacturer of electrical capacitors and
transformers, which operated on the harbor's edge from about
1940 to 1977. There are supposed to be signs along the
waterfront warning people not to eat fish, but they often
disappear and must be replaced.
Each summer sediment is dredged, de-sanded, de-watered, and
shipped to a licensed PCB-landfill in Michigan. The Army Corps
of Engineers, under contract to U.S. EPA, started dredging
harbor hotspots as early as 1994. The Corps is just finishing
its fourth year of full-scale dredging, with only about 40 days
in the field each year. Based upon the numbers I was given when
I visited, this year the Corps removed 25,000 cubic yards of
contaminated sediment, treated 20-million gallons of water, and
shipped 16,000 tons of residue by train to Michigan.
There is consensus support for the remedy, but this is far
from a success story. Community members express serious concern
at the anticipated duration of the project. At the current
rate, dredging will continue for an estimated 25 years. The
problem isn't capacity or weather, but money.
[GRAPHIC] [TIFF OMITTED] T3576.013
Over the life of the project, EPA has spent over $235
million for ``planning, engineering, and construction'' at New
Bedford Harbor. Reportedly, over $100 million has come from
private responsible parties. However, the remaining funding--
nearly $300 million more--will have to come from EPA's depleted
Superfund. At $15 million per year, the project proceeds slowly
and suffers significant inefficiencies from the imposed start-
and-stop response.
Activists are concerned about continuing public exposures
to PCBs through water, air, and food chain pathways. Even
though the entire inner harbor and thousands of acres of the
outer harbor have been closed to shellfish harvesting and
fishing since 1979, residents are known to harvest and eat
fish, lobster and shellfish from the harbor, exposing
themselves to potential risks from PCB ingestion. Local
residents would like subsistence fishing to resume safely. And
they point out that as long as the harbor is contaminated, the
once valuable lobster fishery and hard shell clam industry--
which brought in some five million dollars to the regional
economy--will remain sidelined and the comprehensive
redevelopment of otherwise attractive shoreline brownfields
properties will be difficult in New Bedford and other
communities on the harbor.
[GRAPHIC] [TIFF OMITTED] T3576.014
While U.S. EPA`s CERCLA program has always had significant
room for improvement, it has protected public health and
improved the natural environment in hundreds of communities
across the United States. Today, however, both at sites already
dependent upon EPA funding and those that should be added to
the National Priorities List, cleanup is slow and inefficient,
and expenses are often borne by third parties. Many vapor
intrusionsites--with completed pathways but without responsible
parties--are not getting the attention they deserve.
Replenishing the fund would be a giant step forward in
recognizing, investigating, and remediating the most
contaminated sites in America.
------
Responses by Lenny Siegel to Additional Questions
from Senator Boxer
Question 1. Please describe your experience in working with
EPA and State cleanup programs on the need to address vapor
intrusion at toxic waste sites?
Response. The practice of the various states, and even EPA
regions, vary significantly. For example, New York State and
EPA Region Nine activity evaluate hazardous waste sites--even
sites with remedies in place--to determine whether a full vapor
intrusion study is necessary. Other states, such as Texas and
Michigan, seem unwilling to consider vapor intrusion even when
preliminary data suggest a need to investigate.
There seem to be two primary reasons for the foot--dragging
in certain jurisdictions:
First, in the absence of detailed policies in most states,
the only pertinent guidance is U.S. EPA's 2002 Draft Vapor
Intrusion Guidance. Some agencies are unwilling to rely upon
that because it was never finalized. For example, at a state--
led Superfund site in Arizona, the State Department of
Environmental Quality reportedly told community members that a
proposed vapor intrusion investigation could not move forward
because EPA's 2002 guidance remained in draft form. I have
heard that EPA has decided not to finalize that guidance,
despite its important as policy and the ongoing technical work
that agency staff have carried out in support of that goal.
Second, the most common contaminant at sties that appear to
pose the greatest vapor intrusion risk is trichloroethylene
(TCE). EPA has not only failed to complete its 2001 draft Human
Health Risk Assessment, but it provides no national interim
guidance for screening levels for TCE in indoor air. This
allows some states to use enormously unprotective standards,
and it creates confusion at many other sites. The absence of
standards based upon current science is more than a theoretical
problem. People are being exposed to TCE at levels that I
consider unsafe, in their homes, schools, and workplaces.
For years I have been attending workshops and conferences
about vapor intrusion. Usually I'm the only community
representative there, among scores or even hundreds of
consultants, regulators, and others, I have therefore urged EPA
to organize forums for public stakeholders, in which members of
impacted communities would learn about the state--of--the--
science in vapor intrusion and offer grounded--in--reality
feedback to the experts. EPA recently agreed, inviting five
representatives of impacted neighborhoods to the first National
Stakeholders' Forum on Vapor Intrusion in San Diego in March
2008. The event was a success, but most of those present were
the ``usual suspects'' from consulting firms, Government
agencies, and universities. I am working with other at EPA to
organize a larger conference, hopefully to be held in Fall
2008. However, thus far we have not identified a source for
essential funding for travel scholarships.
Question 2. Do you believe that EPA has lived up to the
National Academy of Sciences' recommendation in 2006 ``that
Federal agencies finalize their risk assessment with currently
available data so that risk management decisions can be make
expeditiously''?
Response. Clearly EPA has not moved forward expeditiously.
The public has seen nothing substantive from EPA since the
Academy recommendation. Part of the problem is that since 2003
the risk assessment mission has been moved from EPA to an
Ineragency Working Group, which is made up of representatives
from the White House, EPA the three Federal polluting agencies:
NASA, the Defense Department, and the Energy Department. This
working group sponsored the Academy study; in fact, the
Academy's recommendation, cited in the question, mistakenly
ascribes EPA's statutory responsibility to ``Federal
Agencies,'' presumably NASA, DOD, and Energy, all of which have
a conflict of interest. EPA should stop meeting privately with
the other agencies, and it should develop interim screening and
action levels for TCE in indoor air while it accelerates the
timeline of studies required to issue a final risk assessment.
------
Responses by Lenny Siegel to Additional Questions
from Senator Inhofe
Question 1. It is actually a misrepresentation to call the
Superfund a ``trust fund'' since the money collected from it
went directly into the general treasury and then EPA received
funding through the appropriations process. If reinstated what
assurances do we have that the money would go directly to
Superfund cleanup?
Response. It's my understanding the EPA has spent more on
the Superfund program than it collected in Superfund taxes. I
have no reason to believe that would change after
reinstatement. If the point of the question is whether the
money will go directly to site remediation, I believe that the
program expenditures on research, technology transfer,
technical assistance, and cooperation with State and tribal
Governments, as well as other entities, are a wise use of
funds. Were it not for such expenditures, EPA would be throwing
money at the cleanup program without the benefit of all the
technological and policy developments that have occurred since
enactment of CERCLA.
Question 2. Historically, can you point to a correlation
between the money received from the Superfund tax and the money
spent on cleaning up Superfund [sites]?
Response. I have not done a statistical analysis, but I
know that a large share of money spent at National Priorities
List (NPL) sites comes from both Federal and non-Federal
responsible parties, EPA-funding activity--sometimes recovered
after the fact--makes such efforts possible. I know anecdotally
that since the Fund was depleted that cleanup has been slowed--
creating financial inefficiencies at sites such as the New
Bedford Harbor, Masschussetts--and there has been significant
pressures to keep Superfund-caliber sites off the NPL because
there isn't enough money to address them properly.
Question 3. Do you agree that the sites left today are
larger and more complicated, requiring more time and attention
to ensure community acceptance of the remedies and proper
cleanup?
Response. Most of the large, complex sites that have been
on the NPL for some time have a long way to go before
completion. At some of these sites, interim measures have
provided temporary protection of public health and the
environment, but significant contamination remains. In
particular, sites with contaminated groundwater can be made
safe for surface use, especially if vapor intrusions is
investigated and mitigated, but full groundwater cleanup is
technically challenging and lengthy in most geologic settings.
However, there are other, smaller or simpler sites that have
been added to the NPL relatively recently, either because the
level of contamination was recently discovered or remediation
under other programs has not been adequate.
Senator Clinton. Thank you very much, Mr. Siegel. You raise
a very important additional aspect of this. I ask unanimous
consent that we submit all the written testimonies of the
panelists for the record.
Senator Clinton. I would like to ask several of the
witnesses to respond to what they have heard, both from
Administrator Bodine and from the other panelists. It would be
helpful if it were possible to give us your top three
recommendations about what you think needs to be done with
respect to Superfund. It may be hard to fit all of that in, but
having heard what you have heard, I think it is important that
the Committee get guidance as to what you believe we should be
focusing on.
Professor Steinzor, would you start please?
Ms. Steinzor. That is a great question. First and foremost,
reinState the tax; second, prioritize enforcement. There are
too many sites where potentially responsible parties who have
ample resources are not working to clean the sites up. And
third, change the attitude toward Superfund, because that is
actually the root of its problems. This program is the one that
everybody loves to hate. It has no respect and no credibility,
and yet everybody should acknowledge that the problems it
addresses are real and profound. This change in attitude needs
to start at the top, because the States are struggling with the
sites that have been dumped in their laps and the ones they
have found. The EPA needs to changes its fundamental
perspective.
Senator Clinton. I would ask unanimous consent to submit
Professor Steinzor's report, along with Margaret Clune,
entitled, The Toll of Superfund Neglect, for the record.
[The referenced document can be found on pages 102-258.]
Senator Clinton. Professor Steinzor, when you refer to
reinstating the Superfund polluter pay tax, would you do it
exactly the same way as it was done before? Or do you have a
specific set of suggestions as to how it could be better
targeted or better structured?
Ms. Steinzor. I think the rate may need to be raised. It is
a very broadly based tax. It focuses on the oil and chemical
industries, which are the two industries most involved at
Superfund sites. There also is a broad-based corporate tax that
spreads the burden across many firms.
I have real questions in my mind whether more money is
needed than was committed in the last reauthorization. As I
said in my testimony, in constant dollars that amount is 40
percent lower than what Congress said.
Senator Clinton. Thank you very much.
Dr. Porter.
Dr. Porter. Yes, Madam Chairman. I would say my big three
would be, No. 1, set deadlines, whether they are studies or
completion, but very visible deadlines. Projects tend to get
done when there are deadlines, or at least people know what is
the reason it is not being done.
I would like to coin a term this morning. I would like to
see these sites as kind of a subset of the first point. I would
like to see more of a culture of completion at sites. What we
have now is a culture of deliverables. There are 15 or 18
reports due at every site, and those are all important
documents, but it has gotten to be a very legalistic process-
oriented situation where it is a culture of deliverables. It is
like, you can't blame me because I got the work plan done on
time, or you can't blame me because I did something else on
time.
No, we can blame you because you were supposed to get the
whole project done in 3 years or whatever. So the first one is
set deadlines.
The second is fix responsibility a little more clearly. It
thinks the regional administrator is the primary person. Susan
obviously is in a key role. In fact, she may need to make some
of those decisions herself. In my day, I made the Love Canal
decisions, because I felt that was a nationally significant
job. I made the Times Beach decision personally because I felt
like that was nationally significant, and a few others.
And then finally, I would say more dollars for cleanup, not
necessarily what Rena is saying that we need more dollars,
period, but within the budget, try mightily within the budget
we now have, which in the PRP work I would try to get more
dollars directly related to clean up. I am a little taken aback
by this 3,000 people at EPA working on Superfund. I know you
have to go one by one through and decide if everybody is doing
something useful, because I am sure they are all doing
something useful, but I do think that we need to be sure that
money is going to clean up.
As kind of a subset of that is have the PRPs take more
responsibility for their own sites and setting their own goals.
They should be, it seems to me, time is money and I would like
to see the responsible parties step up themselves, the CEO or
someone says we are going to get that site cleaned up and let's
do it in 3 years or 4 years or whatever.
Senator Clinton. Thank you.
Mr. Campbell.
Mr. Campbell. Thank you.
My recommendations would track very closely those of the
previous speakers, but let me give you a level of detail. First
in terms of fully funding the program, I think that is
essential. I think it requires reinstating the tax, as members
have recognized.
I also think it means recognizing the other agency roles in
this process, not just EPA's budget, but for example there is
currently a statutory prohibition on using the fund to do
ecological risk assessments by Fish and Wildlife Service and
the like. I think expanding that funding to ensure cleanups are
fully funded is essential.
Second, in terms of the efficiency of the program, is
really making sure EPA is more transparent about the status of
these cleanups. They are simply not forthright in terms of
saying that the cleanups that remain are too complex and that
funding is adequate currently. When it is fully funded, you
will see that there are many, many actions in the cleanup queue
that are ready to start.
And third, to make sure that this funding extends to
enforcement. In the current climate, there has been too little
enforcement and too often EPA or the Department of Justice
asserts that it is because the funding isn't there. I think
fully funding the enforcement program is going to be a critical
key.
And the other critical key I think is one of leadership.
You need different leadership in this program that is going to
set completion of protective cleanups as a foremost goal, as it
was during President Clinton's Administration, as it was under
Administrator Reilly before that.
Senator Clinton. I am over my time. I want to ask both Mr.
Steinberg and Mr. Siegel to submit your top three priorities in
writing for the record, if you would.
Senator Barrasso.
Senator Barrasso. Thank you very much, Madam Chairman.
So I am wondering, this is a fascinating thing, saying,
give me your best three. And even though it takes too long, I
think that is a great way to approach that stuff, so I would go
to Mr. Steinberg and Mr. Siegel for those top three.
Mr. Steinberg. Thank you, Senator.
The theme that connects my top three is financial
management. First: is direct more of the current appropriation
to clean up. A very large amount of the current appropriation
does not go to clean up or to things that are related to clean
up. I mentioned the $200 million that goes to support offices.
Again, that is an easy place to look for money to redirect.
There is also duplicative spending on technical studies
that are being done by PRPs at the sites. EPA does shadow
studies that don't need to be done in many cases. There is
oversight that is excessive. There are lots of dollars spent
from the appropriation that could be better spent. So doing
more with what we have would be step one.
Second, I think there is a disconnect between the senior
management of the program here in Washington and the
fundamental decisions that are made at sites around the country
about what kind of cleanup plan is appropriate and how much
money we are going to commit to be spent. Whether it is fund
spending or PRP spending, those are important decisions that
shape the long-term financial picture for Superfund. They are
being made today in the regions, not here in Washington. There
is no political accountability in Washington for those
decisions. So I would echo Dr. Porter's recommendation that we
restore centralized management over remedy selection decisions.
Third and last, as I mention in my testimony, listing a
site on the NPL should be the last resort. We should be looking
aggressively at other options, not simply moving sites that are
problematic or awkward onto the NPL, because that again bogs
down the program in long-term financial obligations.
Thank you.
Mr. Siegel. Thank you.
First, obviously I think the fund should be replenished. It
is not just at the remediation phase where funds are important,
but in the whole idea that sites aren't even being ranked
because there is no money to clean them up even if we
investigate them.
Second, Senator Clinton you mentioned trichloroethylene,
there is a problem where standards are being set under this
Administration in consultation with the world's largest
polluters, the Departments of Defense and Energy. I think they
are entitled to come to the table like I am, but they have a
conflict of interest. The Interagency Working Group should be
dropped so that trichloroethylene and other chemicals can be
regulated in a normal way.
Third, and this is what I work on, is community
involvement, technical assistance. On Monday, I visited the
Information Technology High School in Long Island City in
Queens. This is a school that was built on a toxic site. It is
not on the NPL right now, but the community was given these
tables showing what the indoor air sampling showed for the
trichloroethylene and perchloroethylene in the building. They
had no idea what it meant. They were scared.
I came and I tried to interpret it for them, pro bono, but
the fact is if communities are going to intelligently and
constructively take part in the process, as they have in my
community where we have more expertise, where we have EPA
technical assistance grants, they are going to need that kind
of support. You can't only fund the actual cleanup. You have to
fund the communities. Otherwise, they are just going to sit in
the audience and throw tomatoes at EPA and whatever responsible
parties are there.
Senator Barrasso. Mr. Steinberg, people, I think, believes
that it is really a polluter pay system, but I am not convinced
that the tax actually worked that way. Could you explain to me
how the tax worked and if the Superfund tax was in effect, when
it was in effect, did it really correlate to how the money was
spent on EPA and on cleanups?
Mr. Steinberg. The taxes that were in place correlated
poorly with the industry sectors involved at Superfund sites.
In particular, the corporate excise tax surcharge aspect is
keyed to how profitable and how structured a company is, not
even to what industry sector it is in. So companies that paid a
high corporate excise tax automatically paid more into
Superfund, whether they ever had any connection to waste
generation or waste dumping at all.
The point was made earlier that the balance in the trust
fund in any given year had no connection to the amount of the
appropriation, which has stayed relatively level in constant
dollars over much of the life of this program. So the notion
that there would be more money spent on Superfund if the taxes
were reinstated I think is essentially illogical.
Senator Barrasso. Mr. Porter, following up on your firm
deadlines in getting things accomplished, would more money for
the EPA really be a significant factor in speeding this up?
Mr. Porter. I don't think so, Senator. I really believe
they have a fair amount of money. They have a lot of people
working on the program. Certainly, there may be selected areas
where they need more money, but I am just a little afraid if
you throw too much more money at it, you just get more
bureaucracy. I think right now with two thirds of the sites
cleaned up, we need to focus like a laser on those that aren't
cleaned up. Most of them, as Mike as indicated, are begun by
private parties. They have the money to pay for it.
So I am not a big fan of just sending money. They need some
targeted money. I certainly agree with several of my colleagues
here that I would like to see the money more directed toward
cleanup within the money you are giving them.
Senator Barrasso. Thank you.
Thank you, Madam Chairman.
Senator Clinton. Thank you very much, Senator.
I am going now to turn to Senator Lautenberg. He will
continue to chair the hearing. I thank the panelists very much
for being here.
Senator Lautenberg.
[Presiding] Thanks very much, Madam Chairman. Thank you for
having done the good job that you did during your question
periods.
We seem to be running, and I won't need this. They are an
orderly group.
[Laughter.]
Senator Lautenberg. Thanks.
The conflicting views of whether or not more money is going
to be useful, there is kind of a trite expression used around
here, well, look at all the waste. And that is the way you
cover up things that you can't explain in direct language, just
look at all the waste.
Winston Porter, it is nice to see you again. I didn't
realize how much we disagreed.
[Laughter.]
Mr. Porter. Not on everything, Senator.
Senator Lautenberg. You are a good person to have on the
team, I can say. And all of you had testimony that triggered
thoughts and, in many cases, I think conflict of views.
Mr. Steinberg, you point to the fact that a lot of the
money that is available is not used on cleanup directly. You
say it is used on other areas. You identify some of the areas
where funds are used. Would you abolish those functions?
Mr. Steinberg. No, Senator. I think that the support
services that benefit Superfund as well as other EPA programs
should be funded independently. Other EPA programs don't
contribute a share of their budget to fund, for example, the
Office of Inspector General. Congress funds the IG directly.
The same should be true with the IG employees who work on
Superfund. There is no reason that money should come from the
Superfund appropriation.
Senator Lautenberg. Well, I think it gets us down to the
basics that we have heard from several of your table mates, and
that is that the program needs more money. No matter how it is
disguised and how it is identified, the fact is that there has
not been enough money to conduct the programs that are
required.
Mr. Steinberg also, you made a fairly bold statement. You
said there are no health risks at any of the Superfund sites.
Am I correct?
Mr. Steinberg. No. What I said was that most of the NPL
sites do not pose current health risks. That is based on the
fact that EPA has listed some 85 percent of them as meeting the
indicator called human exposure under control, meaning no
exposure to unacceptable levels in any environmental medium.
Senator Lautenberg. Well, I thought I heard you be more
specific than saying most. I thought you were using a much
broader term than that.
Mr. Steinberg. Well, it is a very high percentage, but it
is not all.
Senator Lautenberg. But those that do pose health risks,
should these things be approached on the kind of a basis that
we alert fire alarms, alarms for other threatening conditions?
Shouldn't there be some haste associated with these things? I
have been to Ringwood, as Brad Campbell says. That is I think
the only site that was de-listed and now is re-listed.
Mr. Steinberg. Correct.
Senator Lautenberg. The site is awful. You walk through
there and you have these paint slugs all over the place, and a
lot of cancer. People are frightened for their children, but
they can't afford to go other places. This was largely a Native
American community. One of the things that happened is, in my
conversations with a couple of people there, is that they said
they couldn't even fish in the reservoir anymore because it was
so contaminated, but also security was keeping them out of
there. It was a source of nutrition for them and their
families.
So there are broader effects on those who are even some
distance from the Superfund site, and affect public health in a
very significant way.
Mr. Steinberg. And even at that site, Senator, we know that
the Inspector General spent $500,000 after the fact to issue a
report criticizing the cleanup. So that comes out of
Superfund's appropriation--criticism.
Senator Lautenberg. Well, we can't restructure EPA at this
moment. But the fact of the matter is that shouldn't there be
someone looking over--we have people in IG jobs who look over
people's shoulders as their function.
Mr. Steinberg. Certainly, but the other programs that the
IG looks at don't pay for the IG's work force. And the IG has a
very large work force now devoted to Superfund, and the
question is why are we using Superfund dollars to fund that
large work force?
Senator Lautenberg. Well, I don't want to get hung up on
technicalities.
Professor Steinzor.
Ms. Steinzor. I would just point out that I am not sure
that we can have much confidence in EPA's declaration that the
sites don't pose a health risk, when it is very clear that the
same people that are making that declaration are very committed
to tamping the program down, making do with less money,
explaining that really they don't need any more resources. So I
would question that statistic. I think that it would be better
if the agency had more credibility and was really making an
honest effort to assess what the problems were.
One of the subjects that came up is State funding. The
States don't even know themselves what the status is. I asked
the people in Maryland to help me by telling me what their
funding levels had been. They could tell me Maryland's level,
but they couldn't tell me what had been going on around the
Country.
In the absence of EPA funding for the States to do site
assessments, we have no idea if the sites are being addressed
at all under other authorities, much less under Superfund. We
found increasing numbers of abandoned properties that have
reemerged, just like that site was re-listed, the one that you
mentioned.
So I would just urge us to have some caution about these
don't worry, be happy statistics.
Senator Lautenberg. They can't make me happy.
[Laughter.]
Senator Lautenberg. Brad, you were with Jim Florio, I
think, at the time. He authored much of the Superfund law and
that was 1980. Again, it was a lame duck session I think in
which this was passed, and a very important contribution to
America's well-being.
Brad, your experience with EPA regarding public
notification and communication with the State about the
asbestos contamination at the Hamilton Township, New Jersey
site, how would you assess EPA's communications with State and
public notification at other Superfund sites in the State of
New Jersey?
Mr. Campbell. I would give it a very poor ranking in terms
of the level of communication. I think there is often a link
between that issue and funding. They are much less willing to
recognize a problem if it looks like it may be an expensive
problem, or if it may require, as in the case you know at
Ringwood, funding the community with a technical assistance
grant to give them a voice in the cleanup.
One of the concerns I have, Senator, and here I think there
is some common ground among the panelists. Many of my panelists
have talked about efficiency, while Professor Steinzor and Mr.
Siegel and I have talked about cleanup. Well, there is nothing
more inefficient than a stop and start cleanup. At the Roebling
site or Imperial Oil or Cornell-Dubilier, which thanks to your
leadership was highlighted recently. You have the agency
mobilizing to do one bit of cleanup, demobilizing, and then
waiting to re-mobilize. That is enormously inefficient and it
shows that this under-funding and management failure that has
occurred over the last 6 years is only making these problems
worse and making the cleanups more inefficient because they are
stop and start.
Senator Lautenberg. It is very difficult to understand how
Ms. Bodine was so content with the funding level, and refused
to give any credence to my question about were more funds
necessary. I think that pervades the agency. They are there to
protect themselves from public scorn or question.
So, the people who are largely voiceless, powerless, who
live in these communities because many of them, as we have
discussed here, are low-income minority communities. I have
lived in a couple of them. The Passaic River was our river. My
mother swam in that river in her younger days. Now, you can
just about walk on it.
Mr. Campbell, I want to ask you a question. In response to
the claims that the Superfund tax was inefficient, that had
little purpose in its being, and Professor Steinzor or Mr.
Siegel also, any of you who would like to comment on that
assertion about the fact that this tax really wasn't
appropriate as a source. Is it inappropriate?
Mr. Campbell. I would like to comment. I think it is very
appropriate. Let me explain, and certainly others know the
legislative history as well or better than I do, but when
Superfund was crafted, the polluter pays principle essentially
had two components: the liability scheme, strict joint and
several; and the tax. They weren't created in isolation. There
were a lot of cross-connections between the two. I will give
you one.
One is that the oil and petrochemical industry bear a large
portion of the tax when it was in place. On the other side of
the ledger, they got the petroleum exclusion in the liability
scheme. Now, they are off the hook both on the liability scheme
and in the tax structure.
There are many ways you can design a tax, as you know.
There may not be one that achieves all virtues. But to suggest
that the polluter pays principle is only in the liability
scheme and the tax is unrelated to that really flies in the
face of the legislative history and the way the burden of these
cleanups has been distributed.
Senator Lautenberg. Mr. Siegel.
Mr. Siegel. Yes. Senator, I pay local taxes that go to my
fire department, and yet the fire department has never been out
to my house. Is that inequitable? It is not a fee for a
service. It is a tax, so you never know exactly which taxpayer
is going to benefit from the funding. Nevertheless, that is the
way we have to fund services when you don't know over a period
of time that is actually going to need it.
Mr. Steinberg. May I respond to Mr. Siegel briefly?
Senator Lautenberg. Yes.
Mr. Steinberg. I want to endorse his comment that this is a
tax and not a fee, and we should be straightforward and call it
a tax, because that is what it is.
I also think it is important to realize that when we are
looking at sites that have no responsible parties, that there
is no basis on which to say that a particular industry or a
particular segment of industry was responsible for the creation
of that site. In many cases, there is little information about
where the waste originally came from. In many cases, these were
open dumps that were used widely by people in a community, and
for that to be treated as a shared societal cost seems to me to
be totally equitable. So no polluters are off the hook.
Mr. Campbell. If I can respond just briefly to Mr.
Steinberg?
Senator Lautenberg. Yes, please do, before I do.
Mr. Campbell. Senator Inhofe earlier identified a site in
New Jersey that had extensive oil and petrochemical
contamination in soils, and the reason those soils were removed
was to avoid vapor intrusion in the homes of innocent residents
who lived nearby. I don't think there is any doubt from which
industry sector the oil and petrochemicals came from. There is
doubt because of the liability exemption that you can recover
from those parties. The legislative bargain that was created at
the time was that the petroleum exclusion was justified because
we had the tax on the other side of the ledger. The tax has now
fallen out and it is the public, including the residents
immediately threatened by that pollution that are picking up
the tab.
Mr. Steinberg. The exemption that my colleague is referring
to was an exemption intended to cover crude oil and petroleum
product. It does not exempt all----
Senator Lautenberg. What would you suggest, Mr. Steinberg,
as a funding source to clean up these sites? Or shouldn't there
be any?
Mr. Steinberg. I would say that if you believe that more
money is needed, and that is not a belief that I am prepared to
endorse at this time, but if you believe more money is needed--
--
Senator Lautenberg. How about the flat world? Do you go for
that?
Mr. Steinberg. I believe that within the current $1.24
billion appropriation, there is money available to be
redirected toward more important goals than it's currently
being used for.
Senator Lautenberg. Is it enough?
Mr. Steinberg. Well, I heard numbers like $100 million and
$200 million a year mentioned earlier. There certainly is that
much money within the current appropriation.
Senator Lautenberg. Well, there is lots of disagreement.
The fund was at one point $3.8 billion, and it was used to
accelerate the pace of cleanup and became a very effective
program. It took a long time to train the people to the
assignments they had. It was new venture for us. If you
remember when there was a threat that Superfund was going to
close down and people took off and found themselves other jobs
so that they could take care of their families. It was hard to
get ramped up again.
Professor Steinzor.
Ms. Steinzor. Yes, I would just like to point out a couple
of things. First of all, from a historical perspective, the
design of the tax was advocated by industry. It was ARCO that
invented the broad-based corporate tax.
Second, the alternative that nobody is saying is that the
people that will pay for the orphaned sites are the general
taxpayers, so we are being told the paradoxical statement that
on the one hand we shouldn't be asking industries that were not
involved to pay, and on the other hand it is OK to ask the
general taxpayer to pay.
And the third thing I would just like to say is, as our
report tried to point out, this tax is so small in comparison
to the profits, particularly in the oil sector. The broad-based
tax is so small that its portrayal as a burden is really
illogical.
Mr. Porter. Senator, could I just add one point here? As
somebody who has followed this program a long time, if you look
at all the Superfund sites in the Country, individuals have
caused Superfund sites. We have thrown people in jail in
various States who all by themselves caused a Superfund site, a
very bad one. Cities have caused Superfund sites. States have
caused Superfund sites. Federal facilities have caused sites.
So as Mike Steinberg is saying, I would largely want to
associate myself with, and that is I want the polluter to pay,
but what we are saying with respect to the chemical industry is
the polluter must pay twice. You pay for your own site and you
pay for the automobile industry site down the street, or the
city site.
Senator Lautenberg. We can find, in my view, isolated
examples of where there is not a direct cost for the activity
of a company or individuals, but it is good for the general
population. It is for the health of the Country. And you can't
always isolate these things as being responsible for health
problems. If you look at global warming right now, you see that
we are going to have to spend a heck of a lot more money than
we ever thought we would in order to get rid of greenhouse
gases. Everybody is going to pay, the average citizen, the
companies, the building owners, et cetera.
So life changes. As a consequence, and I was naive, I am
not a lawyer, and I didn't understand how since there was no
law about companies that were polluting the environment, how
they could be taken to task. I found out that under common law
that there is, and it was upheld in the courts. So there is no
question about their sharing liability for spoiling their
neighbors' lake.
Mr. Siegel. Senator.
Senator Lautenberg. Yes.
Mr. Siegel. Senator, yesterday I visited the Hopewell
Precision Superfund site in Hopewell Junction New York. There
is a company there. It is still in business. It is the
polluter. EPA is not recovering money from that company because
they say the company can't afford it. What do you do?
Well, the idea is to go after the company that sold the
trichloroethylene through the tax to that company, because that
trichloroethylene is ending up in the home of my friend. I
think under the circumstances, you not only have to look at
what is equitable, but where you can get the money. You can't
squeeze it out of these companies, the polluters that don't
have money, so you have to go after the ones that do.
Senator Lautenberg. That is why we have the orphan fund.
Mr. Siegel. The company is still there, but EPA says, OK, I
don't want to put them out of business. That is fair, but you
have to get the money from someplace, rather than from the
health and safety of the people down the gradient.
Senator Lautenberg. Yes. They pay for their poor health if
they have any money, and they pay much more serious price than
money.
Mr. Steinberg, and I want to close with this because while
we are all having such a good time here, we have other things
that we have to do, how many Superfund sites, Mr. Steinberg,
are members of the Superfund Settlements Project and directly
responsible for the pollution and for their contribution to the
Superfund condition?
Mr. Steinberg. If I understood the question, how many sites
are on the dockets of the members of the Project?
Senator Lautenberg. Yes.
Mr. Steinberg. It is hundreds and hundreds. I don't have a
precise number. That would include Federal NPL sites, Federal
removal sites, State sites, voluntary cleanup sites, brownfield
sites, and underground storage tank sites.
Senator Lautenberg. We are going to call this hearing to a
close. The questions for the record will be submitted, and we
would ask your response as quickly as you can be. I thank each
of you for your testimony, even if it is obvious that I don't
agree with everything you say.
The hearing is concluded.
[Whereupon, at 12 p.m. the subcommittee was adjourned.]
Statement of Hon. Benjamin L. Cardin, U.S. Senator from
the State of Maryland
Madame Chairman, thank you for holding this hearing today.
The Superfund Program is important to the health and safety
of the American public. Superfund sites are scattered across
the nation's landscape. The old industrial backbone of our
country, though, was centered in the Northeast and Midwest.
These parts of America have a disproportionately large number
of Superfund sites as part of that legacy.
In Maryland, for example, we have 17 sites on the Superfund
National Priorities List and dozens of additional sites where
removal actions have taken place. The majority of these sites
are located in close proximity to some my state's biggest
population centers.
For the health and safety of Maryland's 5.6 million
residents, we need a Superfund program that is well funded and
well managed. I fear that we don't have that today.
Madame Chairman, I am concerned:
that the Superfund program is being starved for cash,
that the pace of cleanups is declining rapidly, and
the health of our citizens continues to be at risk.
EPA's mid-Atlantic region encompasses five states,
including Maryland. In this region, total funding for
Superfund:
response programs,
enforcement programs, and
management is at a 17 year low.
The peak funding was $360 million annually in 1992. Funding
for Region III leveled off at $350 million annually through the
1990's. Since 2000--under the current administration--that
figure fell to $319 million in 2007.
Human exposure to potentially dangerous chemicals and
others substances is not yet under control at 111 Superfund
sites in 33 states.
Maryland has 2 such sites: Ordnance Products in Cecil
County and Aberdeen Proving Ground--Edgewood in Harford County.
This hearing is a timely one, Madame Chairman:
We need a Superfund program that is protecting our
citizens' health.
We need a program that is restoring our environment.
And we need a program that is actively returning old
Superfund sites back to productive economic use.
In short, Madame Chairman, America needs--and Maryland
needs--a Superfund Program that is healthy.
I am anxious to hear from EPA about the current pace of
cleanups.
I also want to hear from our other witnesses about how that
rate can be accelerated and how we can put this program put
back onto firm footing. And then I hope we will move quickly to
put those recommendations into action.
Thank you, Madame Chairman.
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