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26–891 PDF 2017

S. HRG. 115–86 

OVERSIGHT OF THE U.S. ENVIRONMENTAL 

PROTECTION AGENCY’S SUPERFUND PROGRAM 

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 

AUGUST 1, 2017 

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

( 

Available via the World Wide Web: http://www.fdsys.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 

AUGUST 1, 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 ........................ 4 

Carper, Hon. Thomas R., U.S. Senator from the State of Delaware, prepared 

statement .............................................................................................................. 128 

WITNESSES 

Nadeau, Steven C., Partner, Environmental Practice Group, Honigman Miller 

Schwartz and Cohn, LLP ..................................................................................... 6 

Prepared statement .......................................................................................... 9 

Responses to additional questions from Senator Inhofe ............................... 38 

Steers, Jeffery A., Director of Regional Operations, Virginia Department of 

Environmental Quality ........................................................................................ 41 

Prepared statement .......................................................................................... 45 

Responses to additional questions from Senator Inhofe ............................... 52 

Probst, Katherine N., Independent Consultant, Kate Probst Consulting ........... 54 

Prepared statement .......................................................................................... 56 

Responses to additional questions from Senator Inhofe ............................... 126 

ADDITIONAL MATERIAL 

Environmental Council of the States (ECOS) press release, President’s Proposed EPA Budget Cuts Will Adversely Affect State EABs, March 16, 

2017 ....................................................................................................................... 138

(1) 

OVERSIGHT OF THE U.S. ENVIRONMENTAL 

PROTECTION AGENCY’S SUPERFUND PROGRAM 

TUESDAY, AUGUST 1, 2017 

U.S. SENATE, 

COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS, 

SUBCOMMITTEE ON SUPERFUND, WASTE MANAGEMENT, 

AND REGULATORY OVERSIGHT, 

Washington, DC. 

The Committee met, pursuant to notice, at 9:59 a.m. in room 

406, Dirksen Senate Office Building, Hon. Mike Rounds (Chairman 

of the Subcommittee) presiding. 

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

Also present: Senators Boozman, Carper, and Markey. 

OPENING STATEMENT OF HON. MIKE ROUNDS, 

U.S. SENATOR FROM THE STATE OF SOUTH DAKOTA 

Senator ROUNDS. Good morning. The Environment and Public 

Works Subcommittee on Superfund, Waste Management, and Regulatory Oversight is meeting today to conduct a hearing entitled 

‘‘Oversight of the U.S. Environmental Protection Agency’s Superfund Program.’’ 

Today we will hear testimony from witnesses with extensive involvement in cleaning up Superfund sites. Our witnesses will discuss their experiences in working with the EPA, State governments, and local communities to clean up and repurpose these 

sites, as well as offer suggestions on how cleanups can be completed quicker and more efficiently while best utilizing taxpayer 

dollars. 

Since 1980 the Comprehensive Environmental Response, Compensation, and Liability Act, or CERCLA, has been a cornerstone 

of our nation’s hazardous waste management program. CERCLA, 

also known as Superfund, was enacted by Congress to give the Federal Government authority to clean up contaminated and hazardous waste sites, and respond to environmental emergencies, oil 

spills, and natural disasters. 

The program created a trust fund that is dedicated to cleaning 

up abandoned waste sites and gives the Agency the authority to 

work with Potentially Responsible Parties to facilitate a site cleanup. It also allows for two types of cleanup actions: short-term removals in emergency instances that require prompt action and 

long-term remedial response actions that allow for the permanent 

reclamation and reuse of the site. 

2 

Superfund sites take many forms. They can be abandoned mine 

lands, manufacturing facilities, military installations, or shuttered 

chemical facilities. Common contaminants at these sites include 

lead, asbestos, and dioxin, all of which can pose a great danger to 

human health and can contaminate soil and groundwater. They are 

located in all of the 50 States and several U.S. territories. 

These sites pose a risk to human health, the environment, and 

can contaminate the water supply and prevent valuable land from 

being used to benefit the community. 

Created in 1983, the National Priorities List, or NPL, consists of 

1,336 sites across the country that are a national priority for cleanups. These sites represent those that pose a great risk to human 

health and the environment. Now, in addition to these 1,336 sites, 

there are 53 sites proposed for listing on the NPL. Three hundred 

ninety-three sites have been successfully cleaned up and deleted 

from the list. 

While the Superfund program has been vital to reclaiming previously contaminated sites, cleanups are often delayed due to a 

complex bureaucracy and a delayed decisionmaking that can hinder 

the cleanup process. These delays result in contaminated sites languishing in communities—at times for decades—while stakeholders 

and other parties involved in the cleanup determine the best path 

forward for the site. 

These cleanups should not be delayed or halted because of bureaucratic red tape and lingering disagreements among the parties. 

When these delays occur, it is the citizens and the local communities that pay the price. 

When contaminated sites are allowed to languish and no 

progress is made toward a cleanup, the site continues to pose a potential risk to human health and valuable property that could benefit the community remains unused. 

The EPA, under the leadership of Administrator Pruitt, has 

made cleaning up Superfund sites a priority for the Agency. Earlier 

this year, Administrator Pruitt established a Superfund task force 

that was tasked with providing recommendations on how the 

Superfund Program can be improved. 

Last week the task force released their report, which provided 42 

recommendations that can commence within 1 year and are currently within the EPA’s existing statutory authority. These recommendations aim to expedite cleanups and remediation, reinvigorate Responsible Party cleanups, encourage private investment, 

promote redevelopment and community revitalization, and better 

engage partners and stakeholders. 

On the same day the report was released, Administrator Pruitt 

issued a memorandum directing the EPA to immediately begin implementing 11 of these recommendations. I am encouraged that Administrator Pruitt has made cleaning up these sites a priority, and 

I am hopeful that the recommendations provided by the task force 

will result in programmatic improvements that allow for quicker 

and more efficient cleanups. 

The EPA should strive to work in a transparent, cooperative 

fashion with State and local governments and stakeholders to 

make certain these sites are effectively cleaned up and can be safeVerDate Aug 31 2005 09:09 Oct 04, 2017 Jkt 000000 PO 00000 Frm 00006 Fmt 6633 Sfmt 6633 S:\_EPW\DOCS\26891.TXT SONYA
3 

ly redeveloped for the benefit of the communities in which they are 

located. 

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

look forward to hearing their testimony, as well. 

Now I would like to recognize Senator Harris for her opening 

statement. 

Senator Harris. 

[The prepared statement of Senator Rounds follows:] 

STATEMENT OF HON. MIKE ROUNDS, 

U.S. SENATOR FROM THE STATE OF SOUTH DAKOTA

Today we will hear testimony from witnesses with extensive involvement in cleaning up Superfund sites. 

Our witnesses will discuss their experiences in working with the EPA, State governments, and local communities to clean up and repurpose these sites, as well as 

offer suggestions on how cleanups can be completed quicker and more efficiently 

while best utilizing taxpayer dollars. 

Since 1980 the Comprehensive Environmental Response, Compensation, and Liability Act, or CERCLA, has been a cornerstone of our nation’s hazardous waste 

management program. 

CERCLA, also known as Superfund, was enacted by Congress to give the Federal 

Government authority to clean up contaminated and hazardous waste sites and respond to environmental emergencies, oil spills, and natural disasters. 

The program created a trust fund that is dedicated to cleaning up abandoned 

waste sites and gives the agency the authority to work with Potentially Responsible 

Parties to facilitate a site cleanup. 

It also allows for two types of cleanup actions: 

• Short-term removals in emergency instances that require prompt action, and 

• Long-term remedial response actions that allow for the permanent reclamation 

and reuse of the site. 

Superfund sites take many forms. They can be abandoned mine lands, manufacturing facilities, military installations, or shuttered chemical facilities. 

Common contaminants at these sites include lead, asbestos, and dioxin—all of 

which can pose a great danger to human health and can contaminate soil and 

groundwater. 

They are located in all of the 50 States and several U.S. territories. 

These sites pose a risk to human health, the environment, and can contaminate 

the water supply and prevent valuable land from being used to benefit the community. 

Created in 1983, the National Priorities List, or NPL, consists of 1,336 sites 

across the country that are a national priority for cleanups. 

These sites represent those that pose a great risk to human health and the environment. 

In addition to these 1,336 sites, there are 53 sites proposed for listing on the NPL. 

393 sites have been successfully cleaned up and deleted from the list. 

While the Superfund program has been vital to reclaiming previously contaminated sites, cleanups are often delayed due to a complex bureaucracy and delayed 

decisionmaking that can hinder the cleanup process. 

These delays result in contaminated sites’ languishing in communities—at times 

for decades—while stakeholders and other parties involved in the cleanup determine 

the best path forward for the site. 

These cleanups should not be delayed or halted because of bureaucratic red tape 

and lingering disagreements among parties. 

When these delays occur, it is the citizens and the local communities that pay the 

price. 

When contaminated sites are allowed to languish and no progress is made toward 

a cleanup, the site continues to pose a potential risk to human health, and valuable 

property that could benefit the community remains unused. 

The EPA, under the leadership of Administrator Pruitt, has made cleaning up 

Superfund sites a priority for the agency. 

Earlier this year, Administrator Pruitt established a Superfund Task Force that 

was tasked with providing recommendations on how the Superfund program can be 

improved. 

4 

Last week the Task Force released their report which provided 42 recommendations that can commence within 1 year and are currently within EPA’s existing statutory authority. 

These recommendations aim to expedite cleanups and remediation, re-invigorate 

Responsible Party cleanups, encourage private investment, promote redevelopment 

and community revitalization, and better engage partners and stakeholders. 

On the same day the report was released, Administrator Pruitt issued a memorandum directing the EPA to immediately being implementing 11 of these recommendations. 

I am encouraged that Administrator Pruitt has made cleaning up these sites a 

priority and am hopeful that the recommendations provided by the Task Force will 

result in programmatic improvements that allow for quicker and more efficient 

cleanups. 

The EPA should strive to work in a transparent, cooperative fashion with State 

and local governments and stakeholders to make certain these sites are effectively 

cleaned up and can be safely redeveloped for the benefit of the communities in 

which they are located. 

I’d like to thank our witnesses for being here today, and I look forward to hearing 

your testimony. 

OPENING STATEMENT OF HON. KAMALA HARRIS, 

U.S. SENATOR FROM THE STATE OF CALIFORNIA 

Senator HARRIS. Thank you, Mr. Chairman. 

Mr. Chairman, I am really pleased to be with you today. This is 

my first time serving as a Ranking Member for a committee hearing in the U.S. Senate, and this hearing certainly speaks to a topic 

that is part of a core mission of the U.S. Government, which is to 

keep the American people safe. 

CERCLA statute, more commonly known as Superfund, was created to help make sure that anyone who puts public health at risk 

by releasing hazardous waste is held accountable for cleaning up 

the damage they created. This is a matter of basic justice. Communities and families should not have to pay the price for someone 

else’s pollution. This is a matter of basic economic justice. 

We should clean up our communities so that jobs can be created 

and properties can be used for good. This is a matter of basic opportunity, the notion that all Americans should have a chance at 

a healthy and productive life, regardless of where they happen to 

call home. 

That is why I am so glad to be holding this hearing with you, 

Mr. Chairman. We share a common goal of improving the cleanup 

process to better protect public health by restoring contaminated 

sites, without cutting corners. This is something we have a real opportunity to do, and I look forward to working with you and the 

members of our Committee to help make it happen, and I am 

heartened to see strong bipartisan interest in figuring out ways to 

make Superfund work better. 

Our work is guided by two key principles that Superfund laid out 

nearly four decades ago to guide its implementation: first, that 

toxic waste contamination threatens public health and requires a 

comprehensive cleanup response; second, that polluters should be 

held accountable and pay for the damage they cause. 

While Superfund has successfully cleaned up thousands of the 

most heavily contaminated sites across the country, there are still 

53 million Americans who live within 3 miles of the nation’s more 

than 1,300 Superfund sites. Poor communities and communities of 

color are disproportionately likely to live near these sites. This is 

5 

true from the mountains of Appalachia to the cities and streets of 

Los Angeles. 

The Americans who are most likely to be exposed to toxic waste 

are the same Americans who have the fewest resources to deal 

with the consequences. I think we can all agree that that is wrong 

and that it is something we need to do more to address. 

However, I am concerned by some of the signs I have seen from 

the EPA Administrator about the direction the EPA will take on 

Superfund. On the one hand, I am encouraged that he has said 

that he considers cleaning up contaminated lands to be a core responsibility of the EPA and that, last week, a Superfund task force 

was created, which he created, and offered 42 recommendations on 

ways to expedite cleanups. Truly am heartened by this action. And 

some of these recommendations I believe may be genuine efforts to 

help the program operate more efficiently and effectively, and 

produce better outcomes for the people we all represent. 

On the other hand, other recommendations give me pause, especially in light of the Administrator’s skepticism of science and 

prioritization of corporate interest over public health. Examples of 

this include weakening requirements that polluters show they can 

pay for cleanups they agree to or reducing Federal oversight of 

cleanups. When you add on top of that the 30 percent proposed cut 

for the upcoming 2018 fiscal year to the Superfund account at EPA, 

and the 24 percent proposed cut to the office that enforces the law, 

the rhetoric and the reality may not add up. 

We should reject efforts to expedite cleanups if it means cutting 

corners on health and environmental standards, if it means letting 

polluters off the hook for the harm they have done, or if it means 

shutting out input from members of the public that are bearing the 

brunt of the harm. 

So, Mr. Chairman, I look forward to holding a hearing with EPA 

officials in the near future, and I would like to hear how the Agency plans to accelerate the pace of cleanups while significantly cutting the sources of funding to do that cleanup. And I look forward 

to working with you to find ways to make sure this program is 

working for all Americans, regardless of where they live, who they 

are, or who polluted their community. 

Again, thank you, Mr. Chairman, and I look forward to our hearing today. 

Senator ROUNDS. Thank you, Senator Harris. 

Now I would like to introduce our witnesses today. To begin 

with, Steven C. Nadeau. He is a partner with Honigman Miller 

Schwartz and Cohn LLP; Jeffery A. Steers, Director of Regional 

Operations, Virginia Department of Environmental Quality; and 

Katherine N. Probst, Independent Consultant, Kate Probst Consulting. 

Welcome to all of you. Your full statements will be made a part 

of our record today. I would ask that we begin with opening statements, and if you could limit them to about 5 minutes, that would 

be appreciated. 

We will turn to our first witness today, Steven Nadeau, for a 5- 

minute introduction. 

Mr. Nadeau, please proceed. 

6 

STATEMENT OF STEVEN C. NADEAU, PARTNER, ENVIRONMENTAL PRACTICE GROUP, HONIGMAN MILLER SCHWARTZ 

AND COHN LLP 

Mr. NADEAU. Thank you, Chairman Rounds, Ranking Member 

Harris. 

Good morning, Chairman Rounds, Ranking Member Harris, and 

members of the Subcommittee. Thank you for holding this important oversight hearing on implementation of CERCLA. My name is 

Steve Nadeau, and I am an environmental attorney with more than 

three decades of experience working with industry and EPA on developing remedies for complex Superfund sites across the country. 

I have also served as the Coordinating Director of the Sediment 

Management Workgroup since 1998. 

I am delighted to be here today to share my experience with the 

Superfund program. However, before I do, I should note that these 

views are my own and do not represent the views of any particular 

client or organization. 

As you know, Congress enacted CERCLA to ensure that the nation’s most contaminated sites would be cleaned up. For more than 

30 years EPA successfully identified and remediated hundreds of 

Superfund sites, typically old abandoned landfills or industrial 

properties. However, the typical Superfund site profile has changed 

to complex mining and river sediment sites, often referred to as 

mega-sites. These mega-sites are far more complicated, expensive, 

and time consuming than traditional Superfund sites, often exceeding 10 to 15 years of study with pre-remedy selection costs ranging 

from $100 million to $150 million. 

Contaminated sediment sites are the results of hundreds of years 

of urban industrial activity from hundreds of sources, presenting 

unique challenges to the Superfund program. These large scale 

cleanups often cost more than $1 billion and drag on for decades. 

That is why I am pleased to see a diligent effort by the new Administration to address concerns with the entirety of the Superfund 

process, from initial assessment to remedy selection. This includes 

the Administrator’s change to the Superfund Delegation Authority 

on May 9th, requiring all CERCLA remedial decisions expected to 

cost more than $50 million to be approved by the EPA Administrator, rather than being decided exclusively by the regions. 

Subsequently, the Administrator created a task force on May 

22nd to recommend improvements to the Superfund program resulting in the release last Tuesday of 42 recommendations designed 

to achieve a number of worthy objectives to expedite cleanup and 

remediation, such as promoting the use of a phased approach at 

large and complex sites, further incorporating technical and scientifically sound review, engaging partners and stakeholders, 

prioritizing redevelopment, and encouraging public-private partnerships. 

My oral and written testimony is consistent with and builds upon 

these valuable regulatory improvements, but also identifies additional issues that need to be addressed. 

There are several steps in the Superfund process, and each one 

can cause undue delay in putting sites back into productive use if 

not conducted according to EPA policy. 

7 

There are two steps that often cause the most delay and expense. 

The first is the collection of excessive amounts of data, rather than 

focusing on the data needed for decisionmaking. This is often driven by a desire to eliminate all uncertainty, which is an 

unachievable goal. A second example is the protracted debate that 

often occurs over the appropriate assumptions for determining the 

assessment of risk. 

In addition, some EPA regions impose conservative assumptions 

at the project level that go well beyond the scope of what is required by applicable Superfund guidance on virtually every aspect 

of the site. These assumptions unfortunately result in an artificially inflated risk that significantly skews the information the Administrator will need to decide whether to approve a proposed remedy. 

Another issue I have observed is that some EPA regions have ignored the sediment guidance risk reduction focus, and instead 

favor the far greater dredging component that is technically necessary, particularly at the larger sediment sites. 

Historically, some EPA regions have also set unrealistically low 

background concentration levels for the sediment, which result in 

cleanup goals that are unattainable because the sediments are likely to become re-contaminated to the levels above the cleanup goals 

due to the ambient conditions. 

In 2005 EPA issued a policy guidance document for contaminated 

sediment sites, commonly known as the Contaminated Sediment 

Guidance. This represents a comprehensive, technically sound policy, a roadmap for addressing complexities associated with contaminated sediment sites. However, the disregard of the Sediment 

Guidance and the failure to follow the national contingency plan 

requirements, particularly at the regional level, are severely limiting the effectiveness of the Superfund program, delaying remediation of impacted sites, and stymieing redevelopment along our nation’s waterways. 

So, in terms of solutions, I respectfully request that you consider 

the following recommendations to improve and streamline the site 

investigation and remedy selection decisions at contaminated sediment sites. 

No. 1, EPA headquarters should require the regions to strictly 

adhere to CERCLA, the NCP, and the Sediment Guidance at all 

phases of the site investigation risk assessment, remedy evaluation, and remedy selection stages at all contaminated sediment 

sites. 

No. 2, EPA should restore its Contaminated Sediment Technical 

Advisory Group independent review of the region’s recommended 

remedy prior to the National Remedy Review Board review. In addition, CSTAG and NRRB reviews of the region’s proposed remedy 

should be required to include a specific recommendation of the appropriate remedy for the site. This recommendation would be provided to the Administrator for review of sediment remedies expected to cost more than $50 million. 

This would allow for the Agency’s most experienced staff with 

contaminated sites to have direct input and recommend a remedy 

to the Administrator, which we feel is important. Moreover, EPA’s 

regions should be required to consult with CSTAG on certain steps 

8 

in the Superfund process, including the scope of the remedial investigation, where things often get bogged down, the assumptions for 

developing the risk assessment, and a review of the remedial options during the all important feasibility study phase. 

No. 3, EPA regions should be required to apply the well established Superfund process of adaptive management at the sediment 

mega-sites, rather than waiting for years, and sometimes decades, 

before beginning construction. This would also solve one of the 

most problematic approaches of Superfund, which is attempting to 

address virtually all of the site issues, large and small, up front, 

in one massive ultraconservative remedy. In contrast, the adaptive 

management approach will accelerate cleanups while achieving a 

scientifically supportable remedy. 

No. 4, every sediment site ROD should comply with the cost effectiveness requirement of the NCP by including a detailed and 

transparent analysis demonstrating the proportionality between 

the anticipated risk reduction of each remedial alternative and the 

incremental cost of each such alternative. This way you can balance the benefits and the costs of each remedy under consideration. 

No. 5, EPA should formally incorporate a sustainability analysis 

in its Superfund remedy selection evaluation. Sustainability is consistent with the Superfund NCP criteria and should be incorporated into the CERCLA remedy evaluation. 

No. 7, existing authority should be used to develop an approach 

that addresses contaminated sediment sites through collaborative 

public-private partnerships. This would build upon the highly successful Great Lakes Legacy Act model where sites after sites have 

been addressed in a very timely and very efficient manner. 

So, in conclusion, implementing these recommendations will protect human health and the environment, will accelerate sediment 

cleanups and redevelopment of adjacent sites, and provide for efficient use of our Federal resources by ensuring cost effectiveness, 

saving the EPA and taxpayers money. 

I want to thank the Subcommittee for holding this important 

hearing, and I look forward to answering your questions. 

[The prepared statement of Mr. Nadeau follows:] 

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Senator ROUNDS. Thank you, Mr. Nadeau. I appreciate your testimony. 

We will now turn to our second witness, Director Jeffery A. 

Steers. 

Director Steers, you may begin. 

STATEMENT OF JEFFERY A. STEERS, DIRECTOR OF REGIONAL 

OPERATIONS, VIRGINIA DEPARTMENT OF ENVIRONMENTAL 

QUALITY 

Mr. STEERS. Good morning, Chairman Rounds, Ranking Member 

Harris, and members of the Subcommittee. My name is Jeffery 

Steers, and I am the Director of Regional Operations for the Virginia Department of Environmental Quality. Virginia DEQ is a 

member of the Association of State and Territorial Solid Waste 

Management Officials, or ASTSWMO, of which I previously served 

as President. 

ASTSWMO is an association representing the waste management and remediation programs of the 50 States, the territories, 

and the District of Columbia. Our membership includes State program experts with an individual responsibility for the regulation or 

management of waste and hazardous substances, including overseeing the cleanup of Superfund sites. ASTSWMO appreciates the 

opportunity to provide testimony on oversight of EPA’s Superfund 

cleanup program. 

While States do not assume primary CERCLA authority, we do 

play a role in its implementation. The decisions made by Congress 

and those made by EPA can have a profound impact on State resources. States share a common goal with the Federal Government, 

though, in ensuring that risks to human health and the environment are mitigated and appropriately addressed in a financially responsible manner. Our association is committed to ensuring that 

this is done in an efficient, cost effective way. 

We support any legislation that encourages greater State collaboration with our Federal partners while ensuring that our voice and 

opinions are not diminished. ASTSWMO and its member States 

enjoy a positive working relationship with EPA and does not wish 

to discount these collaborative efforts. We do wish, however, to 

offer the Subcommittee some comments on opportunities to enhance the program. 

States value the relationship with EPA and together, through 

several types of cooperative agreements both as individual States 

and as an association, continue to make great strides in addressing 

some of the most contaminated lands in the United States. 

ASTSWMO supports EPA Pruitt’s May 22nd, 2017, memo stating 

that the Superfund program is a vital function of EPA and the 

Agency cannot have a successful program without substantial State 

involvement. Furthermore, the States support the input and role of 

local government in the communities in which contaminated sites 

exist. 

Opportunities exist for improvements to the program to deal with 

costly and delayed cleanups that continue to have a negative impact on communities across this nation. While efficiencies can be 

realized administratively, without legislative changes to CERCLA 

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tain aspects of the statute to acknowledge the roles that States, as 

co-regulators who operate sophisticated programs across the country, our members, and to some extent, our regulated community 

continue to be challenged with the skyrocketing financial obligations associated with remediating contaminated lands. 

This past week EPA released the recommendations of a task 

force on Superfund appointed by Administrator Pruitt. 

ASTSWMO’s member States are encouraged that the Administration recognizes the need for improvements to a program whose purpose is to ensure American communities are protected from contaminated sites. 

While States are still reviewing this recently released report, we 

take note of the fact that the schedule for implementation is aggressive. Given the proposed reductions in the Agency’s staffing 

and budget, States stand ready to assist EPA in meeting this 

schedule and hope that they can efficiently work with us in adopting and implementing some of these recommendations. 

Experiences in working with EPA regional office has historically 

demonstrated inconsistent application of policy and guidance developed by headquarters. One of the task force recommendations 

states that regions are encouraged to consider greater use of early 

and/or interim actions, including use of removal authority or interim remedies to address immediate risks, prevent source migration, and return to portions of the site to use pending more detailed 

evaluations or other parts of sites. Regional offices must be held accountable in ensuring that consistent implementation of this and 

other recommendations are followed. 

One area of difficulty for our member States is EPA’s process to 

identify State regulations as potential Applicable or Relevant and 

Appropriate Requirements, or ARARs. Our main areas of concern 

include inconsistent application of ARARs from site to site, documenting EPA’s decisions in these matters, and allowing States 

early interaction in the development of ARARs on specific sites. 

ASTSWMO recently participated in a process improvement team 

with EPA to identify tools that could streamline the process while 

providing States with meaningful involvement. While the exercise 

was successful and agreement on the path forward was gained between the Superfund program and the State participants, the outcome was thwarted by EPA’s Office of General Counsel, who created bureaucratic roadblocks that prevented the project from being 

implemented. This is an example of a lost opportunity in improving 

Federal and State relations. 

Another growing concern is the ongoing escalation of costs incurred by States on fund lead sites listed on the National Priorities 

List. As you may be aware, States are required to cost share 10 

percent of the remedy construction, while incurring 100 percent of 

the operation and maintenance costs. States need to be given more 

authority in remedy selection and the up front cost decisionmaking 

early on, and often, in the process. Prior to transfer to States for 

O&M, EPA should be given the authority to consider evaluating 

whether the State has sufficient funds to take on O&M obligations. 

Even though the State agreed to assume O&M obligations in this 

process, it could be that projected costs haven’t been appropriately 

updated by EPA. If the State does not have sufficient funding to 

43 

take on the O&M at the time of transfer, the statute should allow 

for a process that identifies options on how to address and fund 

State shortfalls. 

The role that communities and local investors may play in the 

redevelopment of Superfund sites has historically been diminished. 

States are encouraged that the task force report recommends EPA 

identify sites for third party investment and to pilot how accelerating the remedies might be accomplished under these circumstances. While not mentioning State involvement in this recommendation, EPA must involve ASTSWMO members in the process as we have robust brownfield redevelopment programs and 

other tools that can facilitate expedited reviews, remedy implementation, and pragmatic yet protective long-term monitoring at these 

sites. Investors require a level of certainty not typically found in 

the Superfund program. The States can assist EPA in facilitating 

and negotiating agreements with third parties, and we stand willing to do so. 

With respect to Responsible Party or RP-led sites under Superfund, States typically find themselves in a secondary oversight role. 

It is customary for a State to enter into a Cooperative Agreement 

which defines our role with EPA while providing a funding mechanism for State oversight. In Virginia, we have recently reached out 

to four Responsible Parties to gauge their interest in a pilot program where they enter into a Cost Oversight Agreement, agreeing 

to pay DEQ’s project overcosts directly in lieu of funneling the 

money through EPA, and that results in administratively less burdened Cooperative Agreements for both EPA and DEQ. This approach is much more cost effective for the RP, increases DEQ’s 

budget forecasting, positions Virginia to provide better customer 

service, and helps ensure that we have an opportunity to voice 

State specific concerns such as costs at key decision points. 

Another State engagement issue related to RP oversight is where 

EPA enters into consent decrees or other types of settlement documents with RPs to settle costs of their cleanup. EPA often does not 

include the State in this settlement process, which can make it difficult for a State to engage the RPs to do additional work that may 

be needed to recover the State’s current and projected oversight 

costs. This issue can be compounded if the site has the issue of less 

stringent or different ARARs than the State would require for the 

site. 

Finally, coordination on local high profile sites must be a team 

effort between EPA, the State, and local government. Two recent 

examples in Virginia illustrate the need. In one case, the State had 

been working closely with local State health departments to characterize neighborhood drinking water next to an NPL site that contaminated private wells. The State provided a temporary solution 

of installing onsite filtration systems while a long-term fix was developed. Eventually, all parties agreed that a connection to the 

public water supply would reduce the exposure pathway for neighboring residents. However, there was a delay in getting public 

water extended to the area despite that being the apparent intended desire of all parties, largely due to EPA’s very long stepwise process under Superfund that didn’t easily facilitate connecting the public water. 

44 

In another case, the local community—— 

Senator ROUNDS. Mr. Steers, I am going to have to ask you to 

wrap it up. 

Mr. STEERS. OK. In conclusion, States have positioned themselves to be effective partners with EPA on Superfund implementation and have developed working relationships with local government and communities that are home to contaminated sites on the 

NPL. We encourage continued Federal and State cooperative regulatory oversight as improvements continue to be made to the 

Superfund program. 

Thank you for allowing me to testify, and I would be happy to 

answer your questions. 

Thank you. 

[The prepared statement of Mr. Steers follows:] 

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Senator ROUNDS. Thank you, Mr. Steers. 

We will now turn to our third witness, Katherine Probst. 

Ms. Probst, you may begin. 

STATEMENT OF KATHERINE N. PROBST, 

INDEPENDENT CONSULTANT, KATE PROBST CONSULTING 

Ms. PROBST. Thank you. 

Members of the Subcommittee, thank you for inviting me to testify before you today. My name is Kate Probst, and I am an independent consultant. For over 20 years I have worked as a researcher and policy analyst evaluating the Superfund program. I 

am the sole author of the recently released report Superfund 2017: 

Cleanup Accomplishments and the Challenges Ahead, an independent report commissioned by the American Council of Engineering Companies. I was also the lead author of the 2001 Report to 

Congress, Superfund’s Future: What Will It Cost?, which was published by Resources for the Future, a Washington, DC, think tank 

where I was a senior fellow. The conclusions, recommendations, 

and opinions in my testimony today are mine and mine alone, and 

do not represent any other person or organization. 

In my testimony, I am focusing on what do we know and what 

do we not know about Superfund cleanups. And I would note none 

of my data or anything has anything to do with Federal facilities; 

they are all sites that are not owned and operated by the Federal 

Government. 

What do we know? First, we know that over two-thirds of the 

1,555 sites on the NPL at the end of fiscal year 2016 either have 

been deleted from the NPL or are construction complete. The remaining 28 percent are in some stage of the remedial pipeline and 

will require additional actions by EPA and Potential Responsible 

Parties to complete implementation of all cleanup remedies. Those 

sites that are construction complete, but not deleted, also have 

more work to be done. 

Second, funding for the Superfund program has declined markedly since fiscal year 2000, and it appears that the remedial program is facing a funding shortfall. In constant 2016 dollars, annual 

Superfund appropriations declined from a high of $1.9 billion in fiscal year 2000 to a low of $1.09 billion in fiscal year 2016, a decrease of 43 percent. Funding for the remedial program has declined as well, from a high of $740 million in fiscal year 2004 to 

a low of $501 million last year, a decrease of 33 percent. 

Over the past 5 years the end of the year funding shortfalls for 

remedial action projects has averaged $67 million. Much more difficult to quantify are more subtle results of funding constraints: 

sites not added to the NPL, sites studied and remedial projects 

spread out over a longer time period, and other less visible actions 

not taken or delayed due to lack of resources. 

Third, cleanup progress has slowed in recent years. Since the beginning of fiscal year 2000, 462 sites have achieved construction 

complete status, an average of 27 a year. That average dropped to 

12 sites a year for the 5 years from fiscal year 2012 through fiscal 

year 2016. 

Fourth, sites needing Federal attention continue to be identified 

and added to the NPL. There continues to be a need for Federal 

55 

dollars, Federal enforcement, and Federal expertise to address contaminated sites. Since fiscal year 2000, a total of 310 non-Federal 

sites were added to the NPL. 

What we don’t know. First, why is it taking so long to complete 

cleanup at some of the sites on the NPL? There are 189 non-Federal sites that were added to the NPL before fiscal year 2000 that 

are still not construction complete. The question is why. Possible 

explanations include lack of adequate EPA funding, PRP inaction, 

EPA inaction, the sheer magnitude of the site and contamination, 

and technical limitations of available cleanup technologies. Any initiative by EPA to speed cleanup should begin by identifying the 

specific factors that are contributing to delay at these and other 

NPL sites. It is not possible to solve a problem if we don’t know 

what is causing it. 

Second, how much will it cost to complete cleanup at all current 

NPL sites? In order to evaluate whether annual Superfund appropriations are sufficient, we first need to have an estimate of how 

much money is needed to complete cleanup, as well as an estimate 

of remedial pipeline funding needs on an annual basis. Sadly, the 

last time such an estimate was made public was the 2001 Report 

to Congress, of which I was the lead author. 

Third, why are contaminated sites still being added to the NPL? 

EPA should, of course, continue to list sites that need Federal 

cleanup dollars, enforcement, and expertise. However, it would be 

helpful to have a better understanding of the factors that have resulted in sites’ being added to the NPL over the past 5 years. For 

example, are sites continuing to be placed on the NPL because they 

are truly orphan sites, that is, there are either no known PRPs or 

the PRPs are not financially viable? Do the types of sites being listed suggest gaps in other regulatory programs or inadequate financial assurance requirements? Are the sites being added to the NPL 

more expensive on average than in the early years of the program? 

Are they more complex technically? Are States referring certain 

kinds of sites to EPA for action that they do not have the financial 

or technical resources to address? 

A better understanding of the factors leading to sites being listed 

on the NPL would be invaluable in efforts to close regulatory gaps, 

investigate needed cleanup technologies, and estimate future funding needs. 

Fourth, and last, what is the financial capacity of State Superfund programs? Some have suggested that there is little or no need 

for a Federal cleanup program and that the program should be delegated to the States. Yet few, if any, States have the financial resources to pay for the cleanup of an NPL caliber site, much less 

a mega-site costing $50 million or more. To address this issue, as 

well as State concerns about their financial burden of operation 

and maintenance at NPL sites, EPA should commission an independent analysis of the financial capacity and legal authorities of 

State Superfund programs. 

Thank you for asking me to testify before you today. I would be 

happy to answer any questions. 

[The prepared statement of Ms. Probst follows:] 

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Senator ROUNDS. Thank you for your testimony, Ms. Probst. 

Senators will now each have 5 minutes for questions. I will begin 

our questioning. 

This one I would like to ask the panel, and I most certainly appreciate all of your backgrounds in this. I am just curious. There 

is a process, Risk-Based Corrective Action, or RBCA. It is a method 

of managing contaminant release sites in which the amount of environmental management to protect human health and the environment is based on a scientific assessment of the risks posed by 

contaminants. 

Now, in South Dakota this was a management technique that we 

have used successfully for cleanup of petroleum sites. 

I am just curious, does EPA currently use the RBCA process as 

a means of managing Superfund cleanups, or is this something 

that could potentially be utilized by the EPA to manage cleanups 

more effectively and efficiently? Just curious if any of you are familiar with this particular process and what your thoughts are. 

Mr. Nadeau. 

Mr. NADEAU. Yes. Thank you, Senator Rounds. The RBCA program was very, very successful and is successful because it focuses 

on the risk based approach. The Federal Superfund statute and all 

of its regulations, the national contingency plan, and the case of 

contaminated sediments are all risk based as well, and I think a 

lot of the RBCA concept were reflected. The problem we are seeing 

is we are getting bogged down on the study phase, and the risk 

based approach falls by the wayside when a conservatism factor is 

applied to the remedy selection. This is why an adaptive management approach would allow us to deal with the worst issues first 

and monitor. These sites would get cleaned up more efficiently. 

And people who come to the table, companies that are involved 

want to get this done. So the RBCA approach, if we follow it as 

written already in our Federal program, would really help things 

accelerate, and we would get better cleanups and earlier cleanups. 

Senator ROUNDS. Director Steers. 

Mr. STEERS. I would agree with my colleague. Again, we get 

bogged down with looking at risk and what is the appropriate risk 

in the use of the property, especially if it is trying to be redeveloped. So a RBCA model—especially on large mega-sites, we have 

one in Virginia—would help when you look at the adaptive management and being able to assure that you have the appropriate 

level of risk, because you can take risk assessment to an extreme 

level, and I think it needs to be tempered with what is the appropriate risk for that site and those conditions. 

Senator ROUNDS. Ms. Probst. 

Ms. PROBST. I don’t think I have the right expertise to answer 

that question. 

Senator ROUNDS. OK, thanks. 

Mr. Nadeau, how would expanding the role of the National Remedy Review Board, or the NRRB, and the Contaminated Sediments 

Technical Advisory Group, CSTAG, in remedy decisions improve 

EPA decisionmaking at sediment sites? 

Mr. NADEAU. The CSTAG organization was founded because contaminated sediment sites are far more complex than anything we 

have ever had to address in the past. You can’t get your arms 

128 

around them easily. By having the Agency’s most experienced practitioners from the regions, you have basically a peer review of the 

best and the brightest. If you have that kind of input, this will 

even out the disparity we see in how the guidance is applied. 

It is a unique situation. The guidance is a terrific document. If 

we follow the guidance, we can make this work. So we are encouraged that we are taking a separate look at this through the task 

force and the actions that follow. 

The NRRB and CSTAG review, by making it part of the decisionmaking process where a recommendation of a remedy will allow for 

a second look at whether we are complying with the sediment guidance, which is a risk based program, it has all the ingredients we 

need to make this work, and it will really change the decisionmaking landscape so we can get these sites underway, which I 

think everyone is looking forward to doing. 

Senator ROUNDS. Director Steers, in your testimony you say 

there is an opportunity to modernize certain aspects of CERCLA 

without making a legislative change to the statute. Can you elaborate on what you believe are some of the improvements that can 

be made to CERCLA that EPA can undertake with its current statutory authority? 

Mr. STEERS. I think, generally, one of the problems that we have 

seen is the level of involvement with States and contractors that 

are working for EPA. Oftentimes they work directly with their contractor, and cost control isn’t necessarily on the top of the list as 

it maybe should be, and working with the States, especially on 

fund lead sites, we want to be able to look at where the expertise 

is and making sure that people that understand how to control the 

costs are involved. 

If you look at the removals actions program, where you have 

emergency removals, and you have project managers at EPA that 

do that for a living, they are very much in tune with trying to control costs; not so much on the remedial project managers on longterm Superfund cleanups. So there needs to be a dialogue and a 

work-together on how contractors and EPA and the States can 

work in looking at reducing costs for the construction of the remedy 

and the long-term O&M, as an example. 

Senator ROUNDS. Thank you. 

Senator Harris. 

Senator HARRIS. Thank you, Chairman. 

And before my questions, Mr. Chairman, Ranking Member Carper had to leave for another hearing, but asked me to ask for unanimous consent that his statement be made part of the record. 

Senator ROUNDS. Without objection. 

Senator HARRIS. Thank you. 

[The referenced statement follows:] 

STATEMENT OF HON. THOMAS R. CARPER, 

U.S. SENATOR FROM THE STATE OF DELAWARE

Thank you, Chairman Rounds and Ranking Member Harris, for holding this hearing today. 

Mr. Chairman, I appreciate your continuing leadership of this Subcommittee and 

the important oversight work it does. 

Ranking Member Harris, I want to congratulate you in your new role, and I know 

your experience as a former Attorney General for the State of California will benefit 

129 

all of our understanding of the challenges—the legal and remediation challenges— 

that States face as they clean up contaminated sites. 

EPA’s Superfund program is vitally important in my home State of Delaware, as 

I am sure it is important to most all members. 

Delaware is a small State, but we have 21 sites on the National Priorities List 

and one proposed in Newark just this week. Like all of you, I want to see those 

sites cleaned up as quickly as possible. 

We also want to make sure they’re done right. That means ensuring that remediation actions will permanently protect the public against exposure to toxic and hazardous materials. It means making sure that the communities in which these sites 

are located have a seat at the table and a say in how cleanups get done. 

It means making sure that the financial resources needed to do these cleanups 

are available to communities. And finally, it means that decisionmaking with regard 

to cleanups is driven by science and public health considerations, not political considerations. 

I hope that the cleanup priorities I’ve just outlined are ones to which the members 

on both sides—and the Administration—would also agree. 

Mr. Chairman, I hope that in the near future we will have the opportunity—either at the Subcommittee or perhaps even at the full Committee—to hear from EPA 

officials directly about the Superfund program. 

It is important that we understand how the Administration plans to accelerate 

cleanups without cutting corners or shutting out community input. 

I hope our witnesses today will speak to all these things, and I look forward to 

hearing their testimonies and thank them all for their willingness to be here today 

and share their perspectives. 

Senator HARRIS. This is a question for each of you. What do you 

believe will be the impact of the Trump Administration’s proposed 

30 percent budget cut to the EPA’s Superfund program from $1 billion to $762 million? And as part of your response, if you could tell 

me if you believe it would be helpful, and I am assuming it would, 

that Congress would appropriate money to help close that gap, but 

also what else could be done to address what will be perhaps a 

shortfall in terms of the resources that are available. 

I will start with you, Mr. Nadeau. 

Mr. NADEAU. Yes. The folks at EPA have been working very diligently on these issues. By streamlining a lot of the steps of the review, we can accelerate our progress, but it would still be helpful 

for the Agency to have the resources necessary, especially at the 

senior levels, to bring experience to bear on these important issues. 

We do think that the other changes that we are recommending 

will also help the process, too, and we can get from A to Z in half 

the time and start cleaning up the sites with early actions, and this 

will, I think, take some of the burden off these 15-year studies. We 

don’t need 15 years to study the problem. Study for 3 or 4 years, 

identify the areas to be addressed, and it will take the pressure off 

the staff, and it will mean that all of our resources are applied to 

clean up and not excessive study, so it all will fit hand in glove. 

Senator HARRIS. So does that mean that you think there will be 

no change to the ability to address the issue, the budget cut won’t 

have an impact? 

Mr. NADEAU. I think there will be pressures, there is no doubt, 

but I think that if there is more funding available to provide review 

on the key issues like contaminated sediment sites or mining sites, 

that would be helpful. We think that it is important to have staffing. But we feel that whatever happens, we can make it better, and 

we will all just have to live with it. 

Senator HARRIS. Thank you. 

130 

Mr. Steers, again, what do you believe this 30 percent budget cut 

will do in terms of the ability to address the cleanup that is necessary? 

Mr. STEERS. I believe the States are concerned about that. Obviously, we work as partners with them. The cuts in both staff and/ 

or in construction of projects could end up causing certain additional delays, but also looking at remedies that maybe aren’t the 

best remedies that we need for some of these sites, especially ones 

where the State needs to take them and carry them through their 

long-term monitoring and operation. 

We also feel that, even if you have some cuts, we still need to 

look at efficiency. And you can absorb some cuts if you are also 

being efficient and working with your partners and being able to 

streamline the process, as we mentioned this morning, because in 

lieu of having any ideal budget, you also have to be able to effectively use that money, and I think there are opportunities, especially when we talk about how project managers consistently apply 

guidance across EPA regions; that can escalate costs easily. So we 

understand it is not an unlimited budget, there is not unlimited 

funds to address these sites, but we do need to work together, and 

you know, States need to be at the table when we are talking about 

budget cuts. 

Senator HARRIS. Have the States, as a group, discussed or even 

addressed this potential 30 percent cut to the budget? 

Mr. STEERS. We are still trying to understand what the impacts 

of that might be. 

Senator HARRIS. Can you follow up with this Committee when 

you have some sense of that? I am very interested, as I am sure 

my colleagues are, to know what the impact to the States will be 

of this 30 percent cut. 

Mr. STEERS. Sure, we can do that. 

Senator HARRIS. Thank you. This proposed 30 percent cut. 

And Ms. Probst. 

Ms. PROBST. Thank you. First of all, having worked at EPA in 

my past life, a 30 percent cut in 1 year is huge. I mean, that is 

going to really hurt the program, regardless of how one feels about 

the Superfund program. It is just very hard to absorb huge cuts 

quickly. The easiest way is to take it out of what are called extramural dollars, which are the same dollars that fund cleanups, 

whether removal or remedial. It is very hard to cut staff quickly 

and have that payoff, so, one, forgetting this program, a 30 percent 

cut to any program in 1 year is probably going to shut down a lot 

in the program. I think that is just a reality. 

The second thing is the Superfund appropriations have different 

pockets. There is the money that goes out of the Agency for cleanups, the money that goes out of the Agency for removal actions, 

and then there is staff and other things. We know that the remedial program budget has declined in real dollars. It is very hard to 

see how you can accelerate cleanup and cut the budget without basically becoming a removals only program, where you are basically 

going in and addressing current risk, immediate risk. But it is hard 

to imagine that you can continue to do long-term cleanups with 

that kind of a Draconian cut. 

131 

The second point, which I have made 100 times for 20 years, it 

would be really good to know how much money they need. This is 

not a Republican or a Democratic issue. I have to say I don’t understand it, but ever since the report that we issued in 2001, they 

have stopped estimating what is called their out year liability. I 

don’t know why, but it is very hard to say what the impact of a 

cut is if you don’t actually know, well, OK, to clean up the 1,555 

sites on the NPL, this is what we need for the Fund lead actions, 

this is what we need for enforcement, this is what we need for 

oversight. That is doable. EPA will tell you, maybe, that it is hard. 

It is actually not hard as long as we are not trying to go to the 

Moon. We are just trying to get a ballpark estimate of the funding 

they need. 

So I would argue the first thing somebody needs to do is tell you 

how much money they need and what the implication of the cuts 

are. 

I can’t remember if there was something else you wanted to 

know. 

Senator HARRIS. I think our time is up, but Mr. Chairman, I 

would urge that we follow up on this point. I think it is a very important and valid point that we should have an estimate of the 

costs, if our budget is actually going to be relevant to the task at 

hand. So perhaps we can figure out how to follow up with Ms. 

Probst and other expert suggestions on how exactly we would create a process for evaluating the cost estimate for cleanup. 

Thank you. 

Senator ROUNDS. A bipartisan recommendation. 

Senator HARRIS. Absolutely. Fantastic. 

Senator ROUNDS. Thank you. 

Senator Boozman. 

Senator BOOZMAN. Thank you, Mr. Chairman, and thank you 

and the Ranking Member for having this hearing. 

Director Steers, Administrator Pruitt frequently mentions cooperative federalism and the desire to have the EPA work together 

with the States, specifically in the Superfund process. How can 

States partner with the EPA to better leverage Superfund funding 

to stretch money to more sites? 

Mr. STEERS. I think States are positioned to be able to help in 

working with EPA through cooperative federalism, as Administrator Pruitt has defined that. The Environmental Council of 

States, which represents all the State regulatory environmental 

agencies, has helped in defining how our role as States can be in 

doing that. To leverage the resources that are needed to address 

these sites, as was mentioned earlier, I think first we really do 

need to understand what is the needed cost and prioritizing. We 

have a lot of sites on the NPL. Virginia has 31 of them, I believe, 

that are NPL sites. We need to look at how do we prioritize and 

manage that risk. 

I think working with EPA and each region, so we work in Virginia with Region 3, in helping to define how do we prioritize and 

what is the budget we have to deal with the universe that we are 

dealing with in our State, and how can we maximize that. States 

don’t have the funds to be able to fund a full Superfund program. 

Some States have a Superfund program, but it is not on the level, 

132 

obviously, of what EPA does. But States are there to be able to— 

there is some assistance that we can provide in looking at the remedy, where there is a Responsible Party, helping to leverage a 

working agreement where we get the Responsible Party to help pay 

the cost in an efficient way and doing it timely, because one of the 

issues is that time value of money and how long things take. And 

even if you are a Responsible Party, you want certainty with getting a cleanup done. 

Senator BOOZMAN. Right. Tell me, a lot of times you have EPA 

and States duplicating studies and things. Perhaps you could give 

an example of that duplication and describe how it can delay the 

remediation cleanup and at cost. 

Mr. STEERS. I think sometimes there is duplication in characterizing a site, for example, where we have, you know, EPA has done 

some studies, the States have studies, and we keep looking at collecting data. And collecting data for characterizing the hazards on 

a site can be very expensive, and we have State resources that will 

review the data, EPA has contractors and project managers that 

review the data. So you have a lot of people wanting to look at 

data, create more data, and there needs to be a point where there 

is an agreement between the Federal and State agencies on what 

is the appropriate level of characterization of a site to get what we 

need for looking at it, and the future use of that site. 

I think, you know, we are encouraged that EPA is trying to redevelop some of these sites, and they talk about wanting to do that. 

We have opportunities in Virginia, too, where they can be reused 

if you have the appropriate cleanup being done where you have 

some long-term Responsible Party that is able to step in with some 

certainty and do things to monitor the site and restrict certain aspects of the property, for example, if you are leaving some type of 

a risk in place. So there is duplication there that I think we should 

be able to work closer with. 

Senator BOOZMAN. Very good. 

Mr. Nadeau, can you give an example of a successful public-private partnership where sites have been able to be remediated 

quickly? 

Mr. NADEAU. Absolutely. One of the great success stories, as I 

mentioned, was the Great Lakes Legacy Act, and it is a program 

which is completely public-private partnership driven. So here you 

add the Federal aspect, the State aspect, and the industry aspect. 

Folks start off on the same page as partners, and these sites are 

getting cleaned up. There is a funding component, too, that is helpful, but the key is everyone is trying to problem solve from day one, 

and the atmosphere is so different. We can get through a complex 

site, not maybe the biggest ones around, but still hundreds of thousands or millions upon millions, $60 million remedy, we can do 

that in a couple years, and it is such an improvement, and it will 

save on the budget, will save on resources because all those factors 

of the cooperation and the unified purpose of reducing risk in a 

timely manner would change the entire Superfund landscape. And 

it is the most successful cleanup program I think we have ever 

seen. If we can borrow some of those concepts and add and expand 

the public partnership and private partnership, we can really, really get things done. 

133 

Senator BOOZMAN. Thank you, Mr. Chairman. 

Senator ROUNDS. Senator Booker. 

Senator BOOKER. Thank you very much, to the Chairman and 

Ranking Member, for holding this important Committee hearing. 

It has been said already that there are Superfund sites in every 

single State. New Jersey, unfortunately, has the most. About 50 

percent of all New Jerseyans live within 3 miles of a Superfund 

site, and unfortunately, when I was mayor of Newark, I saw this 

in my own city, Superfund sites, where these poisonous chemicals 

were having real effects. People with hazmat suits walking into 

neighborhoods where there were playgrounds, sitting in meetings 

with parents and children worrying, telling stories about cancers, 

about respiratory problems. 

This is an incredible crisis, and I don’t think we really understand the gravity of it all and the urgency of it all. I really don’t. 

And now we have longitudinal data about what effects it actually 

has on people that live within a mile of Superfund sites. About 11 

million Americans live within a mile and 3 million to 4 million of 

our children, the most precious asset this country has, and we now 

know that babies born to mothers living within 1 mile of a Superfund site prior to clean up had a 20 percent higher, greater incidence of kids being born with birth defects. Twenty percent higher. 

So this should be an alarm, alarming to everyone. It is absolutely 

utterly unacceptable that, as Senator Harris said, this is the job of 

government, to protect people. But yet we seem to have a declining 

sense of urgency to deal with this crisis. 

Now, I held a hearing on this topic in 2014 and was told by the 

Region 2 administrator that there were many sites in New Jersey 

that were ready to be cleaned up, but stalled for the simple reason 

of lack of funding. And then in 2015 Senator Boxer and I requested 

from the Government Accountability Office a report on the state of 

the Superfund sites, and they pointed out that the annual Superfund site, as was said by Ms. Probst, had declined from about $2 

billion to $1.1 billion between 1999 and 2013. And because the EPA 

prioritizes funding work that is ongoing, the decline in funding led 

the EPA to delay the start on about a third of the projects, again, 

due to funding. 

So, for me, the question that was asked earlier, it is unconscionable to me that President Trump’s budget calls for a 30 percent reduction, which, as Ms. Probst said, will cripple these programs. 

And what is incredibly irresponsible about that is that this is a 

time that we should be trying to figure out how to expedite cleanup, do more to do it. 

Mr. Nadeau, I don’t mean to take personal offense to what you 

said, but your answer was, you know, we will just have to live with 

this. Now, I live in Newark, New Jersey. I live about a mile from 

a Superfund site. My 10-year-old niece lives with me. She was born 

in that community. And for us to have this resignation, what I consider a hateful hypocrisy, because if everybody in Congress lived 

within a mile of a Superfund site, had their children being born 

there, there might be a sense of urgency and outrage that we are 

debilitating our ability to clean these up. 

So it is hard for me to sit comfortably, having just come from my 

house last night in a poor community, in an inner city community, 

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in a black and brown community, and have to tell my neighbors 

who still pack community meetings, concerned about the Superfunds within our city. 

So you have already answered my question, Ms. Probst, about 

the problem, but I just want to ask simply this. I am going to reintroduce in this Congress a Superfund Polluters Pay Act, which 

would reinstate a small tax, a tax that Reagan reauthorized, that 

some Senators here now, on both sides of the aisle, voted for. And 

this would put a small tax on polluting industries, petrochemical 

industries that I visited in places like Cancer Alley, Louisiana, 

where they are plowing more toxins into the air. 

Paying for Superfund cleanups cannot be a partisan issue. So my 

question is, to Ms. Probst, a reliable source of funding at a greater 

rate than now, not cutting—I am introducing legislation that we 

should spend 5 percent of a trillion dollar infrastructure plan, just 

5 percent could satisfy all the funding needs of the current priority 

list. Just 5 percent of our infrastructure needs. 

Would that take care of the problem, as you see it? 

Ms. PROBST. I don’t know about the exact number. It is certainly 

true that congressional appropriations to the Superfund program 

were higher when there were dedicated taxes and there was a balance in the trust fund. I mean, in theory, Congress can do whatever it wants. There is nothing precluding Congress from saying we 

want to appropriate $1.6 billion a year. But you know, history 

shows us that where there was a dedicated tax and where there 

was a balance in the trust fund, the EPA was given more money. 

Senator BOOKER. And the sites were being cleaned up. 

Ms. PROBST. There weren’t the same concerns about funding 

shortfalls. Although when we did this report in 2001, Tim Fields, 

whom I adore, who was the Assistant Administrator, said, you 

know, we are not putting mega-sites on the list because we don’t 

have the funds. So, again, it gets back—I mean, there are lots of 

different issues. What you are talking about—where we have sites 

where there are real risks now, and in the report I show how many 

sites don’t have human exposure under control, and even more disturbing is where we don’t know if it is under control or not, which, 

to me, I am kind of horrified by that latter beast. And then we 

have sediment sites and mining sites. 

So Superfund sites are not all unique, but they are not homogenous. So one of the things I think is to pull out these subset of sites 

and figure how do we go at them. So there are inner city sites 

where there really are people being at risk, right? And then we 

have New Bedford Harbor and the Hudson River and the Passaic, 

and those are very different kinds of sites. 

But as I say, history shows that where there is money in the 

trust fund, EPA gets more money. But again, there is nothing that 

precludes the appropriations committees from saying we are going 

to give them more money. So that is kind of a—sorry. 

Senator BOOKER. Thank you, Mr. Chairman. 

Senator ROUNDS. Senator Markey. 

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

I was an original coauthor of the Superfund law in 1980 on the 

Committee, and one of the issues that, of course, came right to me 

was when Anne Anderson, a mother with a young son, Jimmy AnVerDate Aug 31 2005 09:09 Oct 04, 2017 Jkt 000000 PO 00000 Frm 00138 Fmt 6633 Sfmt 6633 S:\_EPW\DOCS\26891.TXT SONYA
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derson, visited me in my office and told me that the boy had leukemia and that she had organized other mothers in Woburn, Massachusetts, to go door to door to find other children who had leukemia in this part of Woburn. 

Along with Love Canal and a couple of other sites, that became 

the motivating force for the creation of Superfund. In fact, it became the movie A Civil Action, the book A Civil Action. And the 

mothers were the ones who identified this problem, not the experts, 

not the city officials; it was the mothers. In the movie, they make 

the lawyer the hero. It was the mothers. Now, Jimmy died from 

leukemia, and on that site now is a huge development, industrial 

development, and the Jimmy Anderson Transportation Center as 

well. So we have actually converted it. 

But the first and most important goal we had was just to make 

sure that kids didn’t die, that they weren’t drinking the water, that 

they weren’t put in situations that could lead to these human tragedies. 

So as I look at what we are talking about right now, I see the 

EPA making a decision that they have to choose between the sites 

that have an impact just on the health of families and those that 

actually could be redeveloped. And then this limited budget would 

kind of prioritize those that could also be redeveloped for commercial purposes. 

And that is the kind of triaging that is absolutely unacceptable. 

I mean, this program is there in order to make sure that you don’t 

have to make that kind of a choice; that families that have kids 

who are exposed to these toxins are not ever exposed, regardless 

of whether or not the property can be redeveloped. 

So as you, Ms. Probst, look at this kind of dramatic downsizing 

of the Superfund program, what are the implications for those families that have kids in areas that will never be redeveloped? 

Ms. PROBST. Well, I am not a scientist or health professional, so 

I am not sure I can totally answer your question, but I think you 

raise a really good point. I mean, the thing that I think concerned 

me most about the task force report is that over a third of the 42 

recommendations are about redevelopment and reuse, and last 

time I read the statute, there is nothing in the statute about redevelopment and reuse. And while it may be a good thing, I am not 

a local government official, I did spend time with Mayor Rabbitt, 

who was at the Industri-plex Site near Woburn, and what he was 

very happy about were the tax revenues to his city. 

And I think that the idea that redevelopment and reuse is more 

important than cleaning up sites or reducing human exposure is 

wrong and not consistent with the statute. So it is fine to be happy 

about redevelopment and reuse, but to place that first seems to me 

really bad public policy. 

Senator MARKEY. Exactly. And so, yes, there was a wonderful 

side benefit to Woburn that they got to redevelop the site, but the 

first and foremost goal that we had to have was just to make sure 

that all these children didn’t have other equivalents around the 

United States, and we used it as the example. 

And what we are seeing here is, once again, kind of a denial of 

what this program means to families. In fact, in 1984, when Anne 

Gorsuch was the head of the EPA, Rita Lavelle, who was in charge 

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of the Superfund program, actually went to prison for lying to our 

Committee over on the House side about that program. She actually had to do time. 

So this has been very controversial right from the beginning. It 

was slow rolled by the Reagan administration. It has never been 

a program, obviously, now that the Trump administration is in, 

that they really embrace, that they will give the hug to and say I 

understand why this funding has to be there in order to help children, in order to help families avoid the kinds of catastrophes 

which we have seen in the past. 

In Massachusetts, if you could, if you are expert, if you know 

Mayor Rabbitt in Woburn, that is great, and he was a big ally of 

mine at that time, and it took a lot of courage for him to stand up. 

How could this impact the remaining Superfund sites in Massachusetts? We have a lot of them. What’s the consequence in Massachusetts if this kind of funding cut occurs? 

Ms. PROBST. I think there is no way to know exactly what the 

consequence is right now because we haven’t seen how the cuts 

would be taken at EPA, but obviously it could slow down cleanup, 

it could cut staff, it could affect the enforcement program. I mean, 

again, a 30 percent cut is just a huge cut in one fiscal year to a 

Federal program, so I think that it would cause just a lot of disarray, and having to figure out how to deal with the cut, just like 

when there is a threatened furlough and everything shuts down. 

But I can’t—I must admit, I can’t tell you exactly in Massachusetts, but it is fair to say that a 30 percent cut is—— 

Senator MARKEY. Is it fair to say that even if the EPA task force 

comes back with constructive recommendations, that if there is a 

30 percent cut in the funding for the remediation of these sites, 

that there is going to be great harm because the triaging will have 

to in fact occur, and that a vision without funding is a hallucination? You know, saying that you care, here is the vision, but 

then cutting the funding by 30 percent only results in more kids 

being exposed around the country. 

Ms. PROBST. Again, nobody has said this to me, and I am not— 

the concern is that you end up with a program where all you have 

is the removals program. That when you have a huge cut and you 

can’t really fully fund remedial actions under the law, that what 

you end up—and the removals program is considered very successful, it is just a different program. 

But the concern of somebody like me or various people is that 

you basically move away from the NPL cleanup remedial action 

program and you end up with removals only, which are not really 

short-term, but in theory less money and less time, and addressing 

immediate risk but not addressing long-term hazard. And that is 

the thing to watch out for, is if you took a huge cut, if I were the 

AA or the office director, that is what I would do. I mean, again, 

you only have certain choices. So that is the thing to sort of watch 

out for, is are you really choking off the long-term cleanup program 

or not. 

There is nothing in their report that says that. I could be completely wrong, but over the past 25 years that is what one has concerns about, is are you gutting the long-term cleanup program or 

137 

not. Again, there is nothing that says they are, but that is kind of 

what you want to watch. 

Senator MARKEY. I got it. A 30 percent cut is like moving 

kryptonite over toward Superfund, and it will really significantly 

harm its strength in its ability to be able to help. 

Ms. PROBST. But I want to be Wonder Woman instead. 

[Laughter.] 

Senator MARKEY. I thank you so much for all your work. 

Thank you, Mr. Chairman. 

Senator ROUNDS. Thank you. 

In listening to the testimony, and I most certainly appreciate 

what all of you bring to the table here, it seems to me that part 

of the challenge for us as we look at oversight of the Superfund and 

the Superfund activities is to begin to restore and to confirm trust 

in the process itself, give confidence in the system of being able to 

show successes where they are at. 

And in doing that we also have to have, as Ranking Member 

Harris has indicated, the accurate assessment of the costs to come 

yet, where the costs are at in the future so that as we look at the 

planning for the trust fund and so forth, and as we ask questions 

of the officials at the Environmental Protection Agency, to be able 

to have a straightforward assessment to be able to share with the 

American people these are the anticipated costs for this program 

in the future. 

And then along with that comes a responsibility to efficiently deliver that program, to use these entrusted dollars as efficiently as 

we can in order to actually address the goals of the program in the 

first place, which is life and safety for individuals who are impacted. But that side benefit, as indicated here today, of being able 

to reutilize those properties, as well, and to bring them back in, 

neither of which is a bad goal to have. 

So let me just end by just once again thanking Ranking Member 

Harris and the members of the Committee for their participation, 

to our guests for your participation. As I indicated earlier, your full 

statements will be included for the record. I would also like to 

thank, once again, everybody here who has attended. 

The record will be open for 2 weeks on this hearing, which will 

bring us to Tuesday, August 15th. 

With that, once again, Senator Harris, thank you for your participation in this, and without further ado, this hearing is adjourned. 

[Whereupon, at 11:09 a.m. the Committee was adjourned.] 

[Additional material submitted for the record follows:] 

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