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28–407 PDF 2018

S. HRG. 115–143 

CHALLENGES FACING SUPERFUND AND WASTE 

CLEANUP EFFORTS FOLLOWING NATURAL DISASTERS 

HEARING 

BEFORE THE

SUBCOMMITTEE ON SUPERFUND, WASTE 

MANAGEMENT, AND REGULATORY OVERSIGHT 

OF THE

COMMITTEE ON 

ENVIRONMENT AND PUBLIC WORKS 

UNITED STATES SENATE 

ONE HUNDRED FIFTEENTH CONGRESS 

FIRST SESSION 

DECEMBER 6, 2017 

Printed for the use of the Committee on Environment and Public Works 

( 

Available via the World Wide Web: http://www.govinfo.gov 

(II) 

COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS 

ONE HUNDRED FIFTEENTH CONGRESS 

FIRST SESSION 

JOHN BARRASSO, Wyoming, Chairman 

JAMES M. INHOFE, Oklahoma 

SHELLEY MOORE CAPITO, West Virginia 

JOHN BOOZMAN, Arkansas 

ROGER WICKER, Mississippi 

DEB FISCHER, Nebraska 

JERRY MORAN, Kansas 

MIKE ROUNDS, South Dakota 

JONI ERNST, Iowa 

DAN SULLIVAN, Alaska 

RICHARD SHELBY, Alabama 

THOMAS R. CARPER, Delaware 

BENJAMIN L. CARDIN, Maryland 

BERNARD SANDERS, Vermont 

SHELDON WHITEHOUSE, Rhode Island 

JEFF MERKLEY, Oregon 

KIRSTEN GILLIBRAND, New York 

CORY A. BOOKER, New Jersey 

EDWARD J. MARKEY, Massachusetts 

TAMMY DUCKWORTH, Illinois 

KAMALA HARRIS, California 

RICHARD M. RUSSELL, Majority Staff Director 

GABRIELLE BATKIN, Minority Staff Director 

SUBCOMMITTEE ON SUPERFUND, WASTE MANAGEMENT, 

AND REGULATORY OVERSIGHT

MIKE ROUNDS, South Dakota, Chairman 

JERRY MORAN, Kansas 

JONI ERNST, Iowa 

DAN SULLIVAN, Alaska 

JOHN BARRASSO, Wyoming (ex officio) 

KAMALA HARRIS, California 

BERNARD SANDERS, Vermont 

CORY A. BOOKER, New Jersey 

THOMAS R. CARPER, Delaware (ex officio) 

(III) 

C O N T E N T S 

Page 

DECEMBER 6, 2017 

OPENING STATEMENTS 

Rounds, Hon. Mike, U.S. Senator from the State of South Dakota .................... 1 

Harris, Hon. Kamala, U.S. Senator from the State of California ........................ 3 

WITNESSES 

Shaw, Bryan W., Chairman, Texas Commission on Environmental Quality ..... 5 

Prepared statement .......................................................................................... 8 

Responses to additional questions from: 

Senator Carper .......................................................................................... 15 

Senator Whitehouse .................................................................................. 17 

Hester, Tracy, Professor, University of Houston Law Center .............................. 19 

Prepared statement .......................................................................................... 21 

Responses to additional questions from: 

Senator Carper .......................................................................................... 29 

Senator Whitehouse .................................................................................. 30 

Rodriguez, Matthew, Secretary, California Environmental Protection Agency . 33 

Prepared statement .......................................................................................... 35 

Responses to additional questions from Senator Carper .............................. 44 

Response to an additional question from Senator Harris ............................. 46 

Responses to additional questions from Senator Whitehouse ...................... 47 

(1) 

CHALLENGES FACING SUPERFUND AND 

WASTE CLEANUP EFFORTS FOLLOWING 

NATURAL DISASTERS 

WEDNESDAY, DECEMBER 6, 2017 

U.S. SENATE, 

COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS, 

SUBCOMMITTEE ON SUPERFUND, WASTE MANAGEMENT, 

AND REGULATORY OVERSIGHT, 

Washington, DC. 

The Subcommittee met, pursuant to notice, at 2:30 p.m. in room 

406, Dirksen Senate Building, Hon. Mike Rounds (Chairman of the 

Subcommittee) presiding. 

Present: Senators Rounds, Ernst, Harris, and Booker. 

OPENING STATEMENT OF HON. MIKE ROUNDS, 

U.S. SENATOR FROM THE STATE OF SOUTH DAKOTA 

Senator ROUNDS. Good afternoon, everyone. 

The Environment and Public Works Subcommittee on Superfund, 

Waste Management, and Regulatory Oversight is meeting today to 

conduct a hearing titled Challenges Facing Superfund and Waste 

Cleanup Efforts Following Natural Disasters. 

In the past 4 months, three major hurricanes brought record setting flooding and rainfall to Texas, the Gulf region, and the Caribbean. They also threatened the dozens of contaminated Superfund 

sites located in their path. 

Further, in October deadly wildfires scorched over 245,000 acres in California. These wildfires left an estimated $85 billion of economic damage in their wake. This hearing is especially appropriate 

today as California again finds itself facing wildfires in southern 

California. 

These ongoing fires have forced tens of thousands of people to 

evacuate their homes. Natural disasters such as these not only 

cause loss of life, but also billions of dollars in damage to the economy, infrastructure, and homes. 

They also have the potential to expose communities and the environment to hazardous chemicals stemming from contaminated 

Superfund sites that could be damaged by the storm. The Comprehensive Environmental Response Compensation and Liability 

Act of 1980, also known as CERCLA, was created to manage hazardous substances and to respond to environmental emergencies, 

spills, and natural disasters. 

As the lead agency, the EPA coordinates cleanups, hazardous 

waste management, and emergency responses with various other 

2 

Federal agencies such as FEMA, the U.S. Army Corps of Engineers, as well as State and local officials. 

Throughout Hurricane Harvey, the EPA worked with the Texas 

Commission on Environmental Quality to secure dozens of Superfund sites in the Houston area and monitored for potential leaks 

from the sites. Following the hurricane, the EPA used aerial imaging to conduct assessments of these sites, but State and Federal officials faced significant challenges in assessing these sites for testing. 

Of the 13 sites the EPA identified as being possibly damaged, 

only 2 were immediately accessible for sampling. The remaining 11 

were inaccessible due to flood waters requiring officials to wait 

until the waters receded before the sites could be evaluated. 

Shortly after Hurricane Harvey, Hurricane Irma threatened 22 

current or former National Priority List sites within Florida’s 

southernmost 100 miles. In anticipation of the hurricane, technical 

staff in the EPA Region 4 office reviewed sites to secure any potential vulnerabilities. Many of these sites remained secure after Irma 

made landfall. 

Two weeks later, as Hurricane Maria hit Puerto Rico and the 

Virgin Islands as a Category 4 storm, 19 Superfund sites were at 

risk. Of these, 5 sites in Puerto Rico were deemed especially hazardous to human health and the environment. 

Today, nearly 2 and a half months after Hurricane Maria made 

landfall, the relief and remediation effort in Puerto Rico is ongoing. 

In addition to these deadly hurricanes, throughout the month of 

October, California experienced some of the deadliest wildfires in 

its history. These wildfires necessitated a Federal cleanup effort 

that involved hundreds of EPA staff and weeks-long efforts to remove thousands of hazardous waste products—largely consisting of 

household chemical products—from the area. 

Today this Subcommittee will conduct a review of the response, 

remediation and recovery challenges faced by States and public officials tasked with securing Superfund sites and managing waste 

debris in the aftermath of these natural disasters. Our goal today 

is to conduct oversight of the agency coordination among Federal, 

State, and local officials following these destructive events. 

We will also hear about the preparations made to secure Superfund sites in advance of these natural disasters occurring and hear 

suggestions on how the planning and preparation for natural disasters can be improved. 

In general, CERCLA provides substantial discretion to the EPA 

to expand requirements for disaster planning and post-disaster response. While CERCLA does provide the EPA with flexibility in 

disaster planning and remedial actions, there are few statutory requirements for proactive disaster planning and response. 

I am hopeful that today’s hearing will provide suggestions for improvement to disaster planning and post-disaster response so we 

can make certain that in the event of a natural disaster, these sites 

remain secure and pose no threat to the surrounding communities 

and environment. 

I would like to thank our witnesses for being here today, and I 

look forward to hearing your testimonies. 

3 

Now, I would like to recognize Senator Harris for her opening 

statement. 

OPENING STATEMENT OF HON. KAMALA HARRIS, 

U.S. SENATOR FROM THE STATE OF CALIFORNIA 

Senator HARRIS. Thank you, Mr. Chairman, and for your 

thoughtful remarks about California and the devastation we experienced because of the wildfires. 

There are many Boys and Girls Clubs in California, but there is 

one—the Harbor Gateway Boys and Girls Club in Los Angeles— 

that is a little different. That is because it is right near the Del 

Amo Montrose Superfund site. 

Literally less than 5 feet away from where kids play, there are 

two underground Superfund sites filled with the chemical DDT and 

old tire rubber which combines to form a toxic sludge. Every day 

there are kids playing at this Boys and Girls Club, and many have 

no idea that they are right next to these toxins. 

That is just wrong. When you are a kid, you should be having 

fun, not worrying about cancer causing toxins. 

Unfortunately, the Harbor Gateway Boys and Girls Club is not 

the only place in my State where vulnerable Californians are exposed to dangerous chemicals. In 2015 an EPA analysis found that 

many communities in California, especially in southeast Los Angeles County, the Inland Empire, and the San Joaquin Valley, are 

among the most at risk neighborhoods in the nation. They are at 

risk due to their proximity to landfills, refineries, rail yards, and 

other polluting facilities. 

Many of the Californians in these high risk areas are people of 

color, Black, Latino, and Asian people who face heavy burdens from 

air pollution, traffic congestion, lead paint, hazardous waste sites, 

and yes, Superfund sites. 

For example, Watts, California, is one of the most polluted areas 

in the State. It is only about 20 miles from Brentwood, but life expectancy in Watts is nearly 12 years lower than in Brentwood. 

That is what we are talking about when we talk about the impact 

of pollutants on public health and vulnerable communities. 

Communities were suffering even before the wildfires and hurricanes. These disasters made a bad environmental crisis even 

worse. As of yesterday Governor Brown declared another state of 

emergency for three wildfires, the Thomas, Creek, and Rye Fires 

in the counties of Los Angeles and Ventura. 

This natural disaster has thus far burned more than 83,000 

acres, destroying at least 200 structures and forced the evacuation 

of over 27,000 nearby residents. Thankfully, our firefighters are responding as quickly as possible, and the Federal Government 

should do everything we can to assist the victims. 

This comes on the heels of my visit with Senator Feinstein and 

Governor Brown to Sonoma and Napa Counties on October 14 to 

observe a series of wildfires that ultimately burned nearly 245,000 

acres, destroyed 8,900 structures, and claimed the lives of 43 

human beings. 

Hurricanes have devastated Florida, Texas, Puerto Rico, and the 

U.S. Virgin Islands. I saw this devastation first hand when I visited Puerto Rico and the U.S. Virgin Islands with Senators MurVerDate Aug 31 2005 09:14 Feb 06, 2018 Jkt 000000 PO 00000 Frm 00007 Fmt 6633 Sfmt 6633 S:\_EPW\DOCS\28407.TXT SONYA
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kowski, Carper, Franken, Risch, and Kennedy on November 5 as 

people struggled to rebuild and put their lives back together. 

On top of that, because of these disasters, contaminants have 

spread, communities are still dealing with damage, debris, waste, 

and destruction. For example, after the California wildfire, hazardous waste such as Freon chemicals, batteries, and asbestos fibers—which could become airborne—were scattered everywhere. 

After Hurricane Harvey the EPA reported that a dangerous 

chemical—a chemical linked to cancer and birth defects—may have 

washed downriver from the San Jacinto River waste pits in Houston. In Puerto Rico, they are facing a humanitarian crisis. Only 50 

percent of the island has power. There is a lack of food and clean 

water, and disease is spreading due to unsanitary conditions. 

A recent study linked wildfire smoke exposure to respiratory 

issues and asthma. Asthma was a severe problem due to pollution 

but increased dramatically for folks breathing smoke from the 

wildfires. 

Families in the California Central Valley have been sending their 

kids to the ER for asthma attacks 3 to 4 times a year or more. That 

was before the wildfire pumped soot into the sky. 

Children across the Central Valley in California are choking on 

the very air they breathe. They will grow to adulthood certainly, 

as we are hearing, with lung disease. Our job is to protect people, 

and frankly, we are failing. 

We must and we can do better. Because this is about health and 

safety of our children, our families, and our communities, and 

while our most vulnerable communities may be the hardest hit, let 

us not forget that clean air and clean water are universal needs. 

Whether you live in a red State or a blue State, none of us want 

the water coming out of the tap to be brown. 

Today we have a chance to hear from folks on the ground. This 

is an opportunity to learn how we can do a better job of cleaning 

up these sites and protecting the health of the American people 

and the environment in which we live. 

Thank you, and thank you, Mr. Chairman. 

Senator ROUNDS. Thank you, Senator Harris. 

Our witnesses joining us today are Mr. Bryan W. Shaw, Chairman, Texas Commission on Environmental Quality; and Mr. Tracy 

Hester, Professor, University of Houston Law Center. 

Now I would like to yield to Senator Harris to introduce our 

third witness. 

Senator HARRIS. Thank you, Chairman Rounds. 

It is my great honor to introduce one of our witnesses today, 

Matt Rodriguez, Secretary of the California Environmental Protection Agency. He was the Chief Assistant Attorney General for the 

Justice Department’s Public Rights Division in 2008 shortly after 

Jerry Brown won election as Attorney General. 

He supervised the land law, environmental law, natural resources law, consumer law, civil rights enforcement, antitrust, and 

corporate fraud sections of the office. 

During his tenure, he worked to make our community safer by 

enforcing hazardous waste disposal laws and regulations protecting 

groundwater from underground storage tanks and the leaks of 

those tanks. 

5 

Secretary Rodriguez also oversaw the legal team that defended 

the State’s greenhouse gas rules and against challenges. This was 

a fight for the right of Californians to combat climate change, and 

Matt played a critical role of leadership. 

Prior to heading the California EPA, Secretary Rodriguez served 

briefly as Acting Chief Deputy Attorney General while I was the 

Attorney General of the State of California. During that time and 

throughout his career, I have trusted and depended on him for his 

advice and counsel, especially on environmental issues. 

Matt Rodriguez is known throughout California and nationally 

as being an expert on all these issues and being a dedicated lifelong public servant. It is an honor to have you before this Committee. 

Thank you. 

Senator ROUNDS. Welcome, Mr. Rodriguez. 

Now we will turn to our first witness, Mr. Bryan Shaw, for 5 

minutes. 

Mr. Shaw, you may begin. 

STATEMENT OF BRYAN W. SHAW, CHAIRMAN, 

TEXAS COMMISSION ON ENVIRONMENTAL QUALITY 

Mr. SHAW. Thank you, Mr. Chairman, Ranking Member Harris, 

and members of the Subcommittee. Good morning, and thank you 

for the chance to visit with you about the Texas Commission on 

Environmental Quality and our response to Hurricane Harvey. 

My name is Bryan Shaw, and I am the Chairman of the Texas 

Commission on Environmental Quality. My agency’s mission is to 

protect our State’s public health and natural resources by ensuring 

that the air and water are clean and that waste is disposed of safely. Fulfilling this mission is critical during and after natural disasters. 

With the challenges we face with this and other issues in the 

State, it continues to be critical that we coordinate with local, 

State, and Federal officials to address the human and environmental impacts of Hurricane Harvey and its aftermath. 

The cooperation between agencies during the hurricane response 

highlighted how well the EPA and the States can work together. 

The hurricane response and recovery efforts provided a direct opportunity to put into practice key elements of the Environmental 

Council of the States’ Cooperative Federalism 2.0 effort which is 

designed to improve the relationship between the EPA, and State 

and regulatory agencies. 

The TCEQ, EPA Region 6, and EPA headquarters all worked together efficiently and cooperatively during this time to quickly address the many issues that resulted from Hurricane Harvey. The 

TCEQ continues to be involved in multiple response and recovery 

efforts, including efforts related to debris management and Superfund sites. 

Talking about some of the debris management, specifically construction and demolition debris associated with Hurricane Harvey 

and the recovery, presents a potential health risk as it can harbor 

mold, bacteria, viruses, rodents, and mosquitoes. Construction debris can also contain household hazardous chemicals, such as pesticides or cleaners stored in the home. Proper management of conVerDate Aug 31 2005 09:14 Feb 06, 2018 Jkt 000000 PO 00000 Frm 00009 Fmt 6633 Sfmt 6633 S:\_EPW\DOCS\28407.TXT SONYA
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struction debris is imperative to reduce exposure to these potential 

infectious agents and harmful wastes. 

The first step is to rapidly remove the material from the houses, 

especially if it has been wet from waste from flood waters, as those 

are always contaminated with microorganisms. Getting them out 

quickly helps to prevent growth and spread of mold, bacteria, and 

viruses indoors. 

Once out of the house, it becomes critically important to quickly 

move the construction and demolition debris from curbs to temporary debris management sites. This helps to reduce public exposure to these wastes and the vectors associated with those piles of 

waste at the curb. Once at a temporary site, it is crucial to dispose 

of materials and hazardous wastes properly, as well as getting rid 

of construction debris materials in a way that is environmentally 

protective either through recycling or proposal disposal in a lined, 

permitted landfill. 

The TCEQ is actively working with local governments on siting 

and approving those temporary sites in a quick and expeditious but 

safe manner. We have permitted about 208 of those since the hurricane went through, 90 of which are still active. Those typically are 

operating 24 hours a day to facilitate getting those materials off 

the curb so we can get those communities healthy as well getting 

folks back into their homes in a safe place to live. 

Our staff worked continuously to ensure we are inspecting for 

both environmental as well as fire protection purposes in the management of those temporary sites. So far our best estimate is about 

25 million cubic yards with regard to debris associated with Hurricane Harvey that will be need to be disposed of in the State of 

Texas. About 10.4 million cubic yards, less than half of that, has 

been removed as of this date. At this point, there is about 1.6 million cubic yards in those temporary sites between the curb and in 

their final disposition in landfills. 

We have efforts on our Web site to make sure we work with our 

local officials and others to ensure that we encourage them about 

the most efficient and effective methods to deal with those materials so that we do that safely and quickly and can return those 

communities to a healthy standard we all strive for. 

In keeping with Governor Abbott’s disaster proclamation, we requested that certain rules be suspended that would hinder, delay, 

or prevent any necessary actions associated with the response, 

dealing with debris management, and controlled burns associated 

with that. The Governor has renewed that declaration, and it will 

not expire until December 19 unless he extends it further. 

We always had the authority to issue temporary permits, authorizations at our municipal landfill sites to allow them, for example, 

to exceed their permitted threshold in emergency situations on a 

temporary basis. Those are up to 180 days with a possible 180 day 

extension. Those would then have to go through either removing 

that material or a subsequent permitting process to make those 

permanent. 

We worked to try to ensure that the enforcement discretion, as 

well as the issues we put forward with the Governor asking for exemptions from the rules, that we do not exceed those time frames 

7 

and can move forward in a way that allows for proper disposal 

quickly of those materials. 

I will quickly finish by saying of the Superfund sites that we 

have in the State, 34 of those are Federal and 17 are State. Mr. 

Chairman, you mentioned that the key to that is making sure prior 

to landfall that we secure those sites. 

This can include making sure storage tanks, vessels, and containers are secured so that they do not wash away, making sure 

they are secured so that people do not get into them, and ensuring 

we are taking other protective measures to ensure we minimize the 

likelihood of offsite contamination associated with those Superfund 

sites. 

I am happy to answer questions as time permits. 

[The prepared statement of Mr. Shaw follows:] 

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Senator ROUNDS. Thank you for your testimony, Mr. Shaw. 

We will now turn to our second witness, Mr. Tracy Hester. 

Mr. Hester, you may begin. 

STATEMENT OF TRACY HESTER, PROFESSOR, 

UNIVERSITY OF HOUSTON LAW CENTER 

Mr. HESTER. Thank you, Mr. Chairman. It is an honor and privilege to be here. I appreciate the opportunity to speak with the 

Committee. 

As you mentioned, my name is Tracy Hester. I teach environmental law at the University of Houston Law Center. Prior to that 

I spent about 20 years as a practicing environmental lawyer at the 

law firm of Bracewell LLP. 

I appear here in my personal capacity and do not speak on behalf 

of any of those organizations or any other group I work with. 

My testimony centers on ways the system could be tweaked or 

modified to make CERCLA and Superfund site responses more resilient in the face of disasters. 

As you mentioned in your opening statement, EPA already has 

substantial grant power under CERCLA to do that. Under Section 

104, the Federal Government has the capacity to select remediation 

actions that can encompass and include the capacity to be prepared 

for disasters and to have excess resilience if they get struck by a 

hurricane or other weather event. 

In addition and probably more on point, Section 106 gives EPA 

the express power to issue abatement orders that require responsible persons to take steps to prevent the imminent threatened release of a hazardous substance that would cause an imminent substantial endangerment. That gives a built in capacity to respond to 

disasters that create risks to the community. 

As you also mentioned, the statute does not include a broad 

array of any explicit mentions to any kind of disaster capacity or 

response. There are some specific areas where the statute could 

have some modifications made to build in that capacity. 

There are three areas. First, make the site selection remedies basically resilient to protect it against release in the first place in the 

face of disaster. In particular, you could add disaster risk resilience 

as one of the statutory criteria that EPA must observe when they 

select remedial action. 

There is a long list of them included in Section 9621(b)(1) of the 

statute. Just add at the end, subsection (H) to make specific reference to disaster recovery and response as part of the remedy selected for a site. 

Two, you could direct EPA to do a prospective and proactive review of all health and safety assessments that have built into them 

emergency response and capacity. Essentially, identify which sites 

are in the path of a natural disaster or likely to suffer one, and go 

through that portfolio in advance and identify whether or not they 

have emergency response plans in place that can deal with the 

black swan event. If they do not, make sure they get upgraded in 

advance. 

Three, take a look at all the sites as a universe and then review 

and rank them as to which ones pose the greatest risks. Currently 

under the statute, there is a mandatory review period that every 

20 

site’s remedy must be looked at again in 5 years, and make sure 

it is still protective of human health and the environment. 

That review includes what other new data has come into play including changes in weather patterns and risks of disasters. Make 

that part of the 5 year review cycle. You could also make sure that 

any State based laws that require disaster resilience in planning 

become considered as applicable or relevant appropriate requirements under the statute under Section 9621(d). 

Last, make some clarifications as to the act of God events. Some 

of the members of the responsible party community had some questions as to whether or not an event like Harvey or a 500 year or 

1,000 year storm was an act of God that created some issues in 

terms of their responsibility to clean up sites they had already 

cleaned up. 

If there was some clarity on that, you could speed up the response and participation of the parties. 

Last, if disaster strikes, build more capacity to respond to it. One 

of the biggest concerns, at least as I observed as someone who was 

in Harvey and is still dealing with the aftermath of that, was concerns of the public as to whether or not there had been release 

from the sites based on what they are hearing second hand from 

the press and from visual observations. 

One way to address that is in addition to the initiatives already 

undertaken with mobile laboratories and aerial over flights which 

are enormously useful and great initiatives, there is capacity I 

think to add capacity for drones and unmanned aerial vehicles that 

are able to go to the sites much more quickly when the roads are 

washed out. 

There is discussion already underway at the Office of Enforcement and Compliance Assurance at EPA to have drones that can 

take samples or do multispectral remote analysis so that you can 

actually get at least preliminary data to assuage concerns of the 

public. 

In doing so, you probably need to have a pilot program to make 

sure you have those tested and that they are reliable and ready to 

put into use when the moment comes. 

Bottom line, in conclusion, I want to emphasize the State and the 

Federal Government stepped up and really built a success story of 

working together on the front lines in the face of disaster. They 

really need to be commended for that. 

There are no atheists in foxholes; there is no turf in the middle 

of a natural disaster, but there are ways we could improve the system. I would be glad to answer questions about that if time permits. 

[The prepared statement of Mr. Hester follows:] 

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Senator ROUNDS. Thank you for your testimony, Mr. Hester. 

We will now turn to our third witness, Secretary Matthew Rodriguez. 

Secretary Rodriguez, you may begin. 

STATEMENT OF MATTHEW RODRIGUEZ, SECRETARY, 

CALIFORNIA ENVIRONMENTAL PROTECTION AGENCY 

Mr. RODRIGUEZ. Thank you very much. 

Good afternoon, Chairman Rounds and Senator Harris. It is a 

pleasure to be able to testify before you today. I will use my testimony today to summarize several points made in my written submittal. 

First, and most importantly, I do want to emphasize that California does need Federal resources, and we do need coordination 

with the Federal Government in order to prepare for our future. It 

is a future that will see more intense and frequent natural disasters, unfortunately, fueled by changes in our climate. 

You well described and I appreciate the understanding in Washington of the disasters that have occurred in California in the last 

6 months and those occurring right now. It really has been a test 

of our working relationship with the Federal Government, but I am 

pleased to say that we have been working very, very well together. 

I have a picture, and I understand Senator Harris was there, but 

this gives you a sense of the devastation that occurred in the fire 

in northern California. Thankfully no Superfund sites were affected 

by this fire. 

As you mentioned, Senator Rounds, that does not mean there is 

not a hazardous waste component to this. In fact, Region 9 has 

worked with the State to inspect 8,000 burned structures so far. 

That has led to the removal of 100 tons of hazardous waste and 

asbestos containing material. 

As Dr. Shaw alluded, once hazardous waste has been removed, 

you still have the much larger task of removing the ash and fire 

debris and preparing these properties for rebuilding. So far, we 

have looked at about one-tenth of the properties or removed materials from one-tenth of the properties in the burn area with the 

northern California fires. That alone has led to a little over 288,000 

tons of ash and debris. 

Obviously, we have a long way to go before these communities 

can recover and start rebuilding, but the Federal Government has 

been a significant partner in this rebuilding exercise. 

The threat from natural disasters is only going to be greatly 

magnified when Superfund sites are in harm’s way. In California, 

this is an especially critical concern because the State has 98 sites 

on the Superfund National Priorities List, many of them in areas 

of high risk from earthquakes, flooding, or fires. 

This danger is growing as a result of climate change that we 

have been seeing in California, which we see as a risk multiplier 

for these natural disasters. We are already seeing impacts from climate change in California. Average temperatures have increased 

by 1.8 degrees in the past century. Fire seasons are now longer and 

more devastating as we are experiencing. 

34 

The State recently endured a historic 5 year drought which has 

contributed to the death of 100 million trees in the State which no 

doubt is contributing to the fire we are experiencing now. 

To better understand the extent of the problem we are experiencing in California and how it may affect Superfund sites in the 

future, we have been mapping out and preparing, as Professor Hester suggested, a list of the Superfund sites that are likely to be affected by future disasters. Here you see a map of areas in high fire 

zones. The red, orange, and yellow are in high fire zones. You can 

see a number of Superfund sites are implicated by these maps. 

Additionally, we have been looking at sites that could be affected 

by sea level rise. We recently convened a meeting in the Bay area 

to look at the effects of sea level rise in the Bay area. Again, you 

can see there are several significant Superfund sites right around 

the Bay that would be affected by a sea level rise, coupled with a 

100 year storm event. These are areas that would release DDT into 

the Bay and a number of carcinogens. 

We are trying to step up, we’re trying to assess the scope of the 

problems so that we can work with local communities and the Federal Government in the future to respond to these problems. It is 

going to require planning on our part and in coordination with the 

Federal Government when we see these issues. 

We have some good examples. We have dealt with a significant 

problem at a mine, the Argonaut Mine site in Jackson, in 

Calaveras County, which threatened to flood the small town of 

Jackson with 15 feet of toxic, arsenic laden sludge. We have also 

worked to rebuild in some of the areas that have been affected by 

fires in the past to make sure they are more resilient, more fire resistant, and that we are helping those communities to respond to 

any future fires in those areas. Again, Federal funding was significant in those areas. 

That very briefly describes the scope of the problem we have in 

California, what we are doing to be proactive and get ahead of that 

problem, and work with the Federal Government to plan and address these issues in the future. 

As I said, we have had a good working relationship with Region 

9 in particular. FEMA has been very helpful to us recently, but we 

know there will be disasters in the future, and we are trying to get 

ahead of the curve so we will be prepared to deal with them in the 

future. 

I appreciate the opportunity to speak to you today. I am available to answer any questions you might have. 

[The prepared statement of Mr. Rodriguez follows:] 

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Senator ROUNDS. Thank you, Secretary Rodriguez. 

Normally, we take about 5 minutes apiece for questions on behalf 

of all of us Senators. Today, as usual for the United States Senator, 

time management is not the best. They have notified us that we 

will be having votes very shortly. 

I would like to complete this Subcommittee discussion before we 

leave for the votes. There is the announcement. 

I want to be specific with regard to the Superfund sites in particular. Mr. Shaw, looking at the fact that you had a number of 

sites that were impacted by the hurricane, are you aware of any 

releases from any of the Superfund sites within your jurisdiction 

due to the impact of the hurricanes? 

Mr. SHAW. We have two sites that likely had or may have had 

a release. One is a State Superfund site. It is not obvious where 

the source of that was. There was a sheen seen on the water days 

after the storm. It appears to have been a minor release, but we 

have contained that and made sure it is not there. 

There was some release there. No impacts have been noted from 

that, but there was a release at that site. 

The other is the San Jacinto waste pits where dioxin is stored. 

In fact, the EPA recently released their decision for final disposition of that site. The protective cap was removed so we know that 

the material was exposed. 

What we have seen from the testing is it is difficult to determine 

how much, if any, of that material was actually released, but it is 

possible that those releases did occur. I know the testing that occurred subsequent to repairing the cap shows the concentrations, 

both in the sediment and the water, are similar to what they were 

pre-storm, but that section of the river has a fair amount of contamination from dioxin from many sources over many years. 

Senator ROUNDS. Mr. Hester indicated several statutory changes 

that might be very helpful, basically some common sense approaches, making some changes in advance, doing some analysis in 

advance, doing some pre-planning and so forth. 

Your full remarks, without objection, will be included in the 

record for this Subcommittee hearing. 

In listening to those remarks, do you believe some of those recommendations Mr. Hester made would have been beneficial had 

they been implemented beforehand? 

Mr. SHAW. I think it is very possible that some of those suggestions could be helpful. Some are done already, so I think the question would be trying to make sure we encourage and incentivize 

without becoming too proscriptive so that the one size fits all approach does not get in the way of solving those problems. 

I mentioned very briefly in my testimony, for example, that prior 

to the storm, we try to make sure those things that systematically 

are not protected, barrels, drums, and things that have to be out 

where they may be exposed to the hurricane, that you secure those. 

I think it makes sense a good engineering design for that solution take into account that resiliency. I think there is potentially 

some benefit to pointing that out, as he discussed, where you look 

at that and make sure we encourage and incentivize that lessons 

learned approach, how do we make sure we are doing things in advance that make it easier to protect it should a natural event occur. 

65 

Senator ROUNDS. Mr. Hester, I appreciated the comments you 

made and the suggestions you indicated. They will be carefully reviewed. 

I believe Mr. Shaw makes a good point: one size does not fit all. 

Can you elaborate a bit on your thoughts in terms of his comments 

just now? 

Mr. HESTER. Absolutely. First, I want to acknowledge that my 

experience has been that EPA staff, especially on the scene coordinators, do an extraordinary job during incredibly tight time pressure when a hurricane is approaching. 

I have seen them not only secure tanks and containers; we have 

built emergency berms on the spot with bulldozers to make sure 

sites are protected and pumped down wastewater lagoons to the 

point they can handle large influxes of water. All of those are done 

on a very fast turnaround basis and very much on an ad hoc basis. 

My endorsement would be please keep doing that, but I also 

think there might be some good policy to have that done in advance 

in terms of making the remedies selected for sites better able to accommodate those kinds of actions when there is an expectation we 

will have these kinds of extreme weather. I would also suggest 

that, to a certain extent, you can pre-stage and have the resources 

available and identified to be able to quickly do that if you need 

to. 

Senator ROUNDS. Thank you. 

Mr. Rodriguez, I am going to allow my counterpart, Senator Harris, to do most of the questions for you, but I think right now, with 

all of the activity going on in California, the fires you have had and 

so forth, it brings to light the challenges that are out there and our 

need for a constant oversight of the different areas. The recommendations you make I think are very, very relevant in this 

particular case. 

I thank you for being here today as well. 

Senator Harris. 

Senator HARRIS. Thank you. 

For Secretary Rodriguez, on October 14 I had the opportunity to 

survey the damage of the wildfires in California first hand. There 

was still minimal containment while I was there. As you know, 

eventually 245,000 acres in northern California burned. I previously mentioned the lives and structures lost. 

The Fourth National Climate Assessment, a Federal Government 

report, recently stated that we have experienced an increase in 

large wildfires since 1980 and that as the climate warms, the number will probably continue exponentially. 

Climate change, as I think you would agree, acts as a force multiplier in extreme weather conditions. I think it important this 

Committee understands how toxic Superfund sites are impacted by 

these disasters as we have discussed. To that end, my colleagues 

and I have submitted a letter to the Government Accountability Office requesting a report on how the EPA is taking climate change 

impacts into account when assessing Superfund sites. 

What do you believe are some of the concerns that California 

EPA has regarding how climate change may impact Superfund and 

hazardous waste sites? 

66 

Mr. RODRIGUEZ. There are a number of concerns that we have. 

Obviously these are very, very dangerous sites. As you noted in 

your opening statement, they are very dangerous sites because of 

the chemicals often still on the site, and they pose a threat, if they 

are not controlled, to the surrounding communities. 

We have done a lot of work in California identifying what we call 

disadvantaged communities in California, communities that are 

largely poor and already dealing with a large number of environmental burdens and what we can do to help those communities. 

One of the things we can do to help those communities is to deal 

with these sites and make sure they are properly regulated. In 

order to do that, we have been working very closely with these 

communities. The discussion we had with the Bay area community 

is an example of that. 

We try to work with the communities to understand what Superfund sites are in those areas, understand the threats that we see 

being posed to those areas in the future because of changing climate and changing sea level, and work with them to understand 

what we can do at the State, Federal, and local levels to respond 

to those issues. 

I will say we have a number of guidelines in the works right now 

that set out standards we and the community can be using to help 

plan in the future to both prepare the Superfund sites and also 

help the communities around these sites. 

We also have an assessment that will be coming out next year 

that will talk about the extent of the problems in some of these 

communities. We also have an adaptation guideline that is going 

to be coming out next year that will talk about how we can prepare 

our communities to respond to floods, natural disasters, and fires. 

We have also updated our guidelines for planning in the States to 

deal with fire hazards. 

We want to take some of those lessons we are learning in those 

situations and work with the USEPA to help them appreciate what 

we are doing at the local level and include them in the planning 

process, because we think that is the key. 

We are looking at these issues and standards we think can be 

applied in California. We need to have the buy in of the Federal 

Government as we work collaboratively to deal with the issues 

there. 

I will note it is helpful to have a Federal Government we can 

work with on climate issues just generally. We look forward to 

working with the Federal Government to deal with the changes in 

climate and work on programs to prevent climate change from occurring. 

Senator HARRIS. How are you incorporating the fact of climate 

change into the reporting and planning you have described? 

Mr. RODRIGUEZ. It will be showing up in our land planning in 

terms of resiliency. As you well know, it will be looked at as we 

go through our elaborate sea growth planning process. We will be 

looking at how to incorporate steps to protect those Superfund sites 

from changes that might occur as we can identify they are in an 

area where there is a fire hazard or a hazard from sea level rise. 

67 

Are there additional protections we need to build into that 

project in order to make sure they are not susceptible to those 

changes? We need to take a long term view. 

As Professor Hester mentioned, for example, through the Department of Toxic Substances’ control process, every 5 years they will 

be reviewing the permits that are out there to make sure they are 

up to date and we are taking into account any changes that have 

occurred, circumstances in the preceding 5 years, and whether we 

need to do more in order to protect those areas. 

Senator HARRIS. Thank you. 

Senator ROUNDS. Senator Booker. 

Senator BOOKER. Thank you very much, Mr. Chairman. 

This is an issue I have been talking about since I first came here. 

In my opinion, we are in a state of crisis with a lack of urgency 

to address that crisis. 

Across the country, we have unrelenting, dangerous Superfund 

sites sitting in our neighborhoods close to populations that are literally poisoning our residents. For me, this is unacceptable. 

I am going to today again introduce the Superfund Polluter Pays 

Act, with which I am sure you are familiar. The bill would reinstate the excise tax on polluting industries to provide funding for 

Superfund cleanups. 

When this excise tax was last reauthorized, it was passed by the 

Senate 86-13. It passed and was signed into law by President Ronald Reagan. The bill was needed because funding for Superfund 

sites continued to decrease. It is now at its lowest point in 25 

years. In fact, if adjusted for inflation, we are currently funding the 

Superfund Program at 40 percent of its 1987 levels. 

The problem with that is now we have longitudinal data. We 

know what these sites are doing to the surrounding populations. I 

know this because New Jersey has more Superfund sites than any 

other State, and it is more densely populated than any other State. 

As you know and I am sure you have discussed in this hearing, 

nationwide 11 million Americans live within a mile of a Superfund 

site; 3 million to 4 million of these people are children. We now factually know, because of longitudinal data, babies born within 1 

mile of a Superfund site, prior to the site cleanups, have a 20 percent higher rate of birth defects—a 20 percent higher rate of birth 

defects. 

We also know that these Superfund sites are disproportionately 

in communities of color, indigenous communities, and low income 

communities. When we call this environmental injustice, it is painful to me that the folks being harmed by this are disproportionately 

seeing themselves exposed to hazardous waste and pollution in this 

data I am showing at 20 percent higher rates of birth defects. 

In one example, a recent EPA and HUD analysis showed that 

the majority of Superfund sites are located within 1 mile of HUD 

funded low income housing. As a guy who lives next to HUD funded low income housing that has two Superfund sites in my community, I live in a neighborhood where the median income is $14,000 

per household and as thousands of my residents who live next to 

and near these Superfund sites, we have to do something about 

this. 

68 

The first question, Mr. Rodriguez, is do you support reinstating 

the excise tax on polluting industries like Ronald Reagan signed 

into law, like Senator Mitch McConnell and many of my other colleagues voted for? 

Do you believe we should reinstate this excise tax to clean up 

Superfund sites, especially knowing Senator Boxer and I questioned whether the net number of Superfund sites in the United 

States of America is increasing or decreasing, it has been increasing in recent years. Do you believe we should reinstate this excise 

tax? 

Mr. RODRIGUEZ. I am not sure as we sit here whether the Governor has taken a position on that specific excise tax, but I will say 

certainly additional funding is necessary for the program. As you 

mentioned, the funding for the Superfund program has gone down 

through the years, but the need has not gone away. In fact, the 

need is as great as ever. That is something we are testifying to 

today. 

In particular, I agree with your observations concerning the communities around these Superfund sites. In many instances, in California, they are the communities least capable of responding to 

some of the problems themselves because they tend to be disadvantaged, low economic communities. 

More needs to be done to focus funding in these areas and to 

help these areas. I think additional funding is certainly something 

that is warranted. 

Senator BOOKER. The facts are this is a growing problem in our 

country. There are orphan sites right now but for the funding being 

available, we could be cleaning them up and taking millions of children out of risk’s way. 

I heard the conversation as I walked in a bit about climate 

change, but I want to press that question right now. We had 40 

Superfund sites at risk of damage during Hurricane Harvey, sites 

that TCEQ, the Federal Government, and the responsible parties 

knew to be contaminated and harmful to human health. 

We also knew Harvey would hit before it did, and we generally 

know the Gulf Coast is going to continue to face these extreme 

weather events. What is often less acknowledged though is the environmental injustice communities bear, this disproportionate burden when these things impact. 

As my time expires, I would ask did TCEQ provide any special 

attention or preparation to these environmental injustice communities prior to Hurricane Harvey making landfall? What ongoing 

monitoring are we doing to deal with what is going to continue to 

happen in the United States of America, especially along the Gulf 

Coast and southeastern coast of the United States? 

Mr. SHAW. With regard to the Superfund sites, we continued to 

monitor those, prepared for and monitored after the landfall where 

it appeared there was damage. Specifically, the San Jacinto waste 

pits is the one Federal Superfund site where damage occurred that 

had the potential for exposure. 

It is a Federal lead site, so they took the lead in that doing sampling and developing a plan with the responsible parties to quickly 

reinsert the cap and protection on there to minimize any ongoing 

damage. 

69 

They followed up with fairly extensive sampling to try to determine if there were offsite impacts from that. I mentioned earlier 

that the results were that there was an exposure of those materials, but it appears from the sampling that took place after the cap 

was replaced, that the levels in the sediment and water are similar 

to what they were prior to the hurricane. 

In a sense we may have dodged a bullet with regard to that. On 

the other hand, that river is also contaminated with dioxin from 

many sources over many years. It is not a great story from the 

standpoint that the problem has gone away. There is still a need 

to make sure we are working proactively to ensure we are being 

protective of that site and other sites in that area. 

Senator ROUNDS. Because I think it is a valid question, I would 

like to have the other members to have a chance to do this, but 

I have to go vote. Would you consider that a QFR and allow them 

to answer that for the record? 

Senator BOOKER. There is a reason why you are the Chair. Clearly you have a lot of wisdom. I will follow you to vote right now and 

appreciate their QFR. 

Senator ROUNDS. Very good. 

We would simply ask if each of you would respond to the Senator’s question for the record. That would be greatly appreciated. 

Thank you. 

Thank you, Senator Booker, for participating as well. 

This is important. It is important that we do the oversight and 

learn each time we run into one of these what we can do to do a 

better job. I thank you all for taking the time to come and contribute. Hopefully, we do a better job in the future. 

Once again, I would like to thank all of our witnesses for taking 

the time to be with us today. I would also like to thank my colleagues, who have attended this hearing, for their thoughts and 

their questions. 

The record will be open for 2 weeks which brings us to Wednesday, December 20. 

With that, this hearing is adjourned. 

Thank you. 

[Whereupon, at 3:21 p.m., the Subcommittee was adjourned.] 

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