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S. HRG. 111–1242 

OVERSIGHT OF THE ENVIRONMENTAL 

PROTECTION AGENCY’S SUPERFUND PROGRAM 

HEARING 

BEFORE THE

SUBCOMMITTEE ON SUPERFUND, 

TOXICS AND ENVIRONMENTAL HEALTH 

OF THE

COMMITTEE ON 

ENVIRONMENT AND PUBLIC WORKS 

UNITED STATES SENATE 

ONE HUNDRED ELEVENTH CONGRESS 

SECOND SESSION 

JUNE 22, 2010 

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

( 

Available via the World Wide Web: http://www.gpo.gov/fdsys 
(II) 

COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS 

ONE HUNDRED ELEVENTH CONGRESS 

SECOND SESSION 

BARBARA BOXER, California, Chairman 

MAX BAUCUS, Montana 

THOMAS R. CARPER, Delaware 

FRANK R. LAUTENBERG, New Jersey 

BENJAMIN L. CARDIN, Maryland 

BERNARD SANDERS, Vermont 

AMY KLOBUCHAR, Minnesota 

SHELDON WHITEHOUSE, Rhode Island 

TOM UDALL, New Mexico 

JEFF MERKLEY, Oregon 

KIRSTEN GILLIBRAND, New York 

ARLEN SPECTER, Pennsylvania 

JAMES M. INHOFE, Oklahoma 

GEORGE V. VOINOVICH, Ohio 

DAVID VITTER, Louisiana 

JOHN BARRASSO, Wyoming 

MIKE CRAPO, Idaho 

CHRISTOPHER S. BOND, Missouri 

LAMAR ALEXANDER, Tennessee 

BETTINA POIRIER, Staff Director 

RUTH VAN MARK, Minority Staff Director 

SUBCOMMITTEE ON SUPERFUND, TOXICS AND ENVIRONMENTAL HEALTH

FRANK R. LAUTENBERG, New Jersey, Chairman 

MAX BAUCUS, Montana 

AMY KLOBUCHAR, Minnesota 

SHELDON WHITEHOUSE, Rhode Island 

KIRSTEN GILLIBRAND, New York 

ARLEN SPECTER, Pennsylvania 

BARBARA BOXER, California (ex officio) 

JAMES M. INHOFE, Oklahoma 

MIKE CRAPO, Idaho 

CHRISTOPHER S. BOND, Missouri 
(III) 

C O N T E N T S 

Page 

JUNE 22, 2010 

OPENING STATEMENTS 

Lautenberg, Hon. Frank R., U.S. Senator from the State of New Jersey ........... 1 

Inhofe, Hon. James M., U.S. Senator from the State of Oklahoma .................... 2 

Baucus, Hon. Max, U.S. Senator from the State of Montana .............................. 5 

WITNESSES 

Stanislaus, Mathy, Assistant Administrator, Office of Solid Waste and Emergency Response, U.S. Environmental Protection Agency ................................. 8 

Prepared statement .......................................................................................... 10 

Stephenson, John B., Director, Natural Resources and Environment, U.S. 

Government Accountability Office ...................................................................... 23 

Prepared statement .......................................................................................... 25 

Response to an additional question from Senator Inhofe ............................. 42 

Gibbs, Lois Marie, Executive Director, Center for Health, Environment and 

Justice ................................................................................................................... 50 

Prepared statement .......................................................................................... 53 

Responses to additional questions from Senator Boxer ................................ 58 

Pierson, Helene M., Executive Director, The Heart of Camden, Inc ................... 60 

Prepared statement .......................................................................................... 62 

Porter, J. Winston, Ph.D., President, Waste Policy Center ................................. 65 

Prepared statement .......................................................................................... 67 

Responses to additional questions from Senator Inhofe ............................... 74 

Stumbo, John E., Mayor, Fort Valley, Georgia ..................................................... 81 

Prepared statement .......................................................................................... 83 

ADDITIONAL MATERIAL 

Statement from the Superfund Settlements Project, Why the Superfund Taxes 

Should Not Be Reimposed ................................................................................... 98 

(1) 

OVERSIGHT OF THE ENVIRONMENTAL PROTECTION AGENCY’S SUPERFUND PROGRAM 

TUESDAY, JUNE 22, 2010 

U.S. SENATE, COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS, SUBCOMMITTEE ON SUPERFUND, TOXICS

AND ENVIRONMENTAL HEALTH, Washington, DC. 

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

406, Dirksen Senate Office Building, Hon. Frank R. Lautenberg 

(Chairman of the Subcommittee) presiding. 

Present: Senators Lautenberg, Inhofe, Baucus, and Merkley. 

OPENING STATEMENT OF HON. FRANK R. LAUTENBERG, 

U.S. SENATOR FROM THE STATE OF NEW JERSEY 

Senator LAUTENBERG. We are ready to go. We welcome everyone 

here. 

I want to say that we are here today because there are hundreds 

of highly dangerous Superfund sites across the country that sit 

unabated in our neighborhoods. These sites continue to contaminate the environment, endanger the health of our children, and 

sabotage communities that want to strengthen their economies. 

To note just one statistic on the potential health impacts, a 2009 

study found that children in school districts near Superfund sites 

are 1.5 times more likely to have autism than those that do not live 

near Superfund sites. Yet GAO reports that there are at least 75 

Superfund sites that pose—and I quote here—unacceptable human 

exposure. 

These sites have soil that is poisoned by chemicals, groundwater 

that is contaminated, or air that is toxic. The health effects are 

alarming. Birth defects, development disorders, and cancer all have 

been linked to chemicals found at Superfund sites. 

Yet the work to clean up these properties has slowed to a crawl 

since the polluter pays fee expired and the Fund ran dry. Since 

2003 funding for Superfund clean ups has depended entirely on 

taxpayers. In the 1990s, when the fee on oil and chemical companies was in effect, EPA was cleaning up more than 80 sites a year. 

Last year it cleaned up only 20. 

And as we will hear from the GAO today, the EPA simply does 

not have the funding to get the job done. In fact, when adjusted 

for inflation, funding for Superfund clean ups has plummeted by 35 

percent since the polluter pays fee expired in 1995. 

Our families, children, and nearby small businesses have been 

shouldering the pain and punishment of these blighted sites for too 
2 

long. We are going to hear today from Lois Gibbs, who experienced 

the tragedy of Love Canal firsthand. Her experience and the experience of others across the country show us that we have to make 

cleaning up these Superfund sites a bigger priority. 

Once these sites are free of pollutants an albatross will be lifted 

from their shoulders. Children’s health will be protected, parents 

will have greater peace of mind, and entrepreneurs will be encouraged to invest once again in these communities. We have got two 

witnesses here today who will tell us that eliminating Superfund 

sites turns community plagues into sources of community pride. 

And I want to say something to my colleagues on the Subcommittee. It is fair to say that we agree on some basic principles. 

But we have got to clean up these festering sites, and when the responsible party can be found—the responsible party, and I do not 

speak I am sure for all of us, but the responsible party must pay. 

Here is the problem. Many of the most egregious Superfund sites 

are orphan sites. That means there is nobody there that we can go 

to. The original polluters are no longer around. So, we have before 

us a couple of choices for these orphan sites—force taxpayers to 

foot the bill for the clean up or get the polluting industries to pay. 

Well, it is pretty obvious, I think, where I stand and I have for a 

long time, against the polluters and I am with the taxpayers. 

And that is why I introduced the Polluter Pays Restoration Act 

which will reinstate the fee on chemical and oil companies to fund 

Superfund clean ups. And I am pleased that the Obama administration officially endorsed this proposal yesterday and that Senators Cardin, Sanders, Whitehouse, Merkley, Levin, Murray, and 

Menendez have joined me in co-sponsoring the bill. 

I look forward to hearing from our witnesses today about the future of the Superfund program, and I also look forward to working 

with Senators on both sides of the aisle to tackle the problem. 

And before we hear from this important panel, I will turn to the 

Ranking Member on the Committee and Subcommittee for their 

opening statements. 

Senator Inhofe. 

OPENING STATEMENT OF HON. JAMES M. INHOFE, 

U.S. SENATOR FROM THE STATE OF OKLAHOMA 

Senator INHOFE. Thank you, Mr. Chairman. 

This oversight hearing on the EPA Superfund program, it is important that we have this, and as Ranking Member of both the 

whole Committee and the Subcommittee, it is important for me to 

be here. 

I have noted before that the Obama administration has exploited 

the BP spill to pursue its radical agenda to shut down America’s 

domestic production of oil and gas. Of course, there is ample evidence for that. Just consider its recent support for legislation to reimpose the Superfund tax. 

The Obama administration has consistently supported that tax. 

They have supported that tax since before the Obama administration. It goes back several years. But until recently, other than mentioning it in budget documents, its public support was muted. 

But the spill has changed that. Now they feel the political climate is right to tax oil and gas companies. And not just to tax oil 
3 

and gas companies. I went down to the floor last week when they 

had the Bernie Sanders bill which would have just put all oil and 

gas out of business, large and small. Many forget how broadly the 

Superfund tax applies if you own a business with over $2 million 

in revenue. Regardless of what you manufacture, you would pay 

the tax. 

In other words, the Superfund tax is also, it is a small business 

tax effecting thousands of such businesses across the country and 

their employees. If the Obama administration is serious about finding ways to stimulate the economy and create jobs, imposing a new 

tax on businesses is not the right way. 

I should also note that the responsible parties under Superfund 

already pay approximately 70 percent of the clean ups. I would 

challenge the EPA to show me one site where a viable, potentially 

responsible party has not been made to pay their share. And that 

is the way it should be. 

You know, when the Chairman said we want the responsible parties to pay, I do, too. We want them to pay. There is, in 70 percent 

of the cases they are doing it. The only ones where they are not 

are the ones that are referred to by the Chairman as the orphan 

sites. And so they cannot locate the responsible parties. They no 

longer exist. 

Now again, some think re-imposing a Superfund tax means more 

sites will be cleaned up faster. But that is not true. As the Government Accountability Office noted last year in a report I requested, 

quote, and I am quoting out of the Accountability Office, the balance in the Superfund Trust does not affect the funds available for 

current or future annual appropriations. 

Now, I would like to turn to something more positive. I would be 

remiss if I did not mention the Region 6 of the EPA, once again 

how pleased I am with the progress on the Tar Creek sites. And 

the Tar Creek site was the most devastating Superfund site in 

America. It was in my State of Oklahoma, and we are on schedule 

to completely resolving that. There is still some work to be done. 

According to the Agency for Toxic Substances and Disease Registry, one in four Americans lives near a Superfund site. For example, the Washington Naval Yard is the closest Superfund site to the 

Capitol, right down here on the Anacostia River. 

The pace of cleaning up Superfund sites has been a prominent 

issue and remains with us today. However, the logical reason for 

this is not due to a lack of funding, as some of my colleagues may 

argue. This is due to the fact that the EPA is addressing larger and 

much more complex sites such as Tar Creek. By their very nature 

these larger sites take more time and resources to complete. The 

EPA prioritizes these sites, and for those of us who have been waiting patiently while other States had multiple sites cleaned up in 

a given year it is frustrating to hear these complaints. 

Now, if you want to expedite the pace of clean ups, and ultimately reducing costs, in some cases we should give more latitude 

to local and State officials who know the sites firsthand. I remember one—and I think both of you remembered one also—that was 

in Bossier City, Louisiana, just a few years ago. It was a site where 

the responsible party agreed that they should clean it up. They 
4 

went to the State of Louisiana and to the province or what do they 

call them there? 

Senator LAUTENBERG. Parishes. 

Senator INHOFE. Parishes. Very good. And they all agreed that 

they were going to, that they should be the ones to do it. And they 

would have done it at a fraction of the costs that the EPA would 

have done it in a timeframe less than half as long. And it was objected to by the EPA, and so consequently that clean up took 

longer, cost twice as much, and there was no reason for it. 

So, I think that we need to, the EPA is essentially using taxpayers’ hard earned dollars to create public relations tools, and I 

think that is wrong. 

So, Mr. Chairman, I do have a great interest in this program, 

and I do want to reemphasize that the polluter is paying today. By 

saying the polluter must pay it implies that they are not paying. 

They are paying today. To impose a tax on everybody else who is 

not polluting is just the same as the taxpayers doing it, in my estimation. 

So, with that, I look forward to the hearing. 

[The prepared statement of Senator Inhofe follows:] 

STATEMENT OF HON. JAMES M. INHOFE, 

U.S. SENATOR FROM THE STATE OF OKLAHOMA

Good afternoon. 

Chairman Lautenberg, as always, it’s good to see you, and I continue to hope for 

your speedy recovery. 

We are here today to hold an oversight hearing on EPA’s Superfund program. As 

the Ranking Member on the EPW Committee and as the Ranking Member on this 

Subcommittee I am glad to be here to discuss this important program. 

As I’ve noted before, the Obama administration has exploited the BP spill to pursue a radical agenda to shut down America’s domestic production of oil and gas. Of 

course, there’s ample evidence for that—just consider its recent support for legislation to re-impose the Superfund tax. 

The Obama administration has consistently supported that tax—but until recently, other than mentioning it in budget documents, its public support was muted. 

But the spill has changed that—now they feel the political climate is right to tax 

oil and gas companies. 

Yet many forget how broadly the Superfund tax applies. If you own a business 

with over $2 million in revenue—regardless of what you manufacture—you would 

pay the tax. In other words: the Superfund tax is also a small business tax affecting 

thousands of such businesses across the country and their employees. 

If the Obama administration is serious about finding ways to stimulate the economy and create jobs, imposing a tax on small businesses is obviously the wrong remedy. 

I should also note that responsible parties under Superfund already pay for approximately 70 percent of the clean ups. I would challenge EPA to show me one site 

where a viable, potentially responsible party has not been made to pay their share. 

That’s as it should be. The other 30 percent are orphan sites—that means EPA can’t 

locate the responsible parties because they no longer exist. Now again, some think 

reimposing the Superfund tax means more sites will be cleaned up faster. But that’s 

not true. As the Government Accountability Office noted last year in a report I requested, ‘‘the balance in the Superfund trust fund does not affect the funds available 

for current or future annual appropriations.’’ 

Now, I’d like to turn to something more positive. I would be remiss not to mention 

EPA Region Six and once again say how pleased I am with the progress that we 

have achieved at Tar Creek. There is much more to be done, but I am very pleased 

with the progress we have made so far. 

According to the Agency for Toxic Substances and Disease Registry one in four 

Americans lives near a Superfund site. For instance, the Washington Naval Yard 

is the closest Superfund site to the Capitol, located on the Anacostia River. Superfund sites are all around us, making this a program of great importance. 
5 

The pace of cleaning up Superfund sites has been a prominent issue and remains 

so today. However, the logical reason for this is not due to a lack of funding as some 

of my colleagues may argue. This is due to the fact that EPA is addressing larger 

and much more complex sites, such as Tar Creek. By their very nature these large 

sites take more time and resources to complete. EPA prioritizes these sites, and for 

those of us who have waited patiently while other States have had multiple sites 

cleaned up in a given year it is frustrating to hear these complaints. 

If we want to expedite the pace of clean ups and ultimately reduce costs in some 

cases we should give more latitude to local and State officials who know these sites 

first hand. That’s because sometimes, unfortunately, EPA can get in the way. 

A prime example of this is the Highway 71/72 Refinery in Bossier City, Louisiana. 

This was a former refinery that was redeveloped for private residences and that 

eventually became contaminated. This was a site where the local and State governments and the company jointly worked out a viable solution. EPA, however, to the 

dismay of those involved, objected and overruled it. 

One other Superfund issue that I would like to address is the need for EPA to 

reduce its administrative costs. A perfect example of this is EPA’s new Integrated 

Cleanup Initiative. This initiative attempts to remarket EPA’s progress at Superfund sites. This will provide new metrics to measure progress at Superfund sites. 

So EPA is essentially using taxpayers’ hard earned dollars to create a public relations tool. 

I believe that this makes no sense, and I hope that my colleagues on this Committee will agree with me. Even if we disagree on Superfund issues we will always 

use the same metrics that have been used for the past 30 years to measure progress 

at Superfund sites. So no one except EPA will be using this initiative. This is money 

that could be used on the ground to fund clean ups; instead it’s being used to wage 

a public relations campaign. This is exactly the type of administrative cost that EPA 

should be reducing instead of increasing, and I hope that they will redirect their 

funds to actually cleaning up these sites. 

I look forward to hearing from the witnesses, especially Dr. J. Winston Porter testimony on panel two. 

Thank you. 

Senator LAUTENBERG. Thanks. 

Just one correction, if I might, to my friend from Oklahoma. And 

that is that it was not $2 million worth of revenue, it was $2 million worth of taxable income so that the revenue had to be substantially higher than that before a tax was imposed. 

Senator Baucus. 

OPENING STATEMENT OF HON. MAX BAUCUS, 

U.S. SENATOR FROM THE STATE OF MONTANA 

Senator BAUCUS. Thank you, Chairman. And again, I want to 

thank you very much for you and you, also, Senator Inhofe, for 

your Superfund concerns. 

As I sit here, I am reminded when you were sitting right over 

there of all the work that you did on brownfields, and brownfields 

in my State have made a huge difference. It helped develop certain 

areas that otherwise would not be developed, and I just want you 

to know that, on behalf of all the people in the State of Montana, 

they very much appreciate the brownfields legislation because it 

has advanced development. 

Chairman, also, I want to speak today not just about the bill you 

have introduced but about Libby, Montana. I know you have heard 

a lot about Libby, and Senator Inhofe, I am sure you have, too. But 

there may be other Committee members who may not be here at 

the moment but who indirectly should hear about the story of 

Libby, Montana. 

Libby is way up in the northwestern part of Montana. It is close 

to Idaho. It is close to Canada. It is a beautiful little town in northwestern Montana. It is also a place where, to date, 291 people in 
6 

a community of under 3,000 have gotten sick and died due to the 

pervasive presence of asbestos spewed from vermiculite mining and 

mine operations of the company of W.R. Grace. 

I do not know if you have read the book A Civil Action. It is 

about W.R. Grace’s actions in Woburn, Massachusetts. But when I 

read A Civil Action, man, it was just—it is powerful. And basically 

the story is repeated up in Libby, Montana, by the same company, 

W.R. Grace. 

This community is a community with a death rate from asbestos 

at their sources at 40 to 60 times greater than the national average. The people of Libby were coated every day for decades with 

5,000 pounds of asbestos dust released every day into the air by 

W.R. Grace mining and building operations. They brought asbestos 

dust home with them, the miners did. 

I can remember going up, as we often do, to mine sites and 

standing at the gate and talking to the miners as they would come 

off shift, going up to the site and seeing these miners coming off, 

out of the bus, and they are just so caked with this white dust. And 

I knew, intuitively, something is wrong here. We did not know precisely what it was, but intuitively, something is wrong here because 

they were just so caked with dust. 

These folks—these guys mostly, I do not think any women 

worked up at the mine site at the time—they brought the asbestos 

home with them on their clothes. They would embrace their 

spouses. Their kids would jump into their laps. Many of them were 

already infected and did not know it was asbestosis, and they gave 

it to their spouses, and they gave it to their kids unknowingly. 

Afterwards it turned out their spouses get diagnosed, and their 

kids would be diagnosed, and just think how bad they felt for 

transmitting this disease off onto their family. 

They normally used vermiculite that was contaminated with asbestos to fill their gardens. The stuff was used to fill their gardens. 

In the town of Libby, it was used on driveways, it was used on the 

high school track, the Little League field, it was up in attics, it was 

everywhere. 

The people of Libby are just basic, ordinary wonderful folks like 

my friend Les Skramstad. I first met Les in 2000 in the living room 

of a good friend of Les and a bunch of other people, Gayla 

Bennifield, it was their home, and they are just very, very concerned about all the asbestos in Libby. No one is paying attention 

to it. And I was in the living room there talking to Gayla and Les 

and all of their friends, and it is just one of those moments in life 

that, boy, this is something, you just got to pay attention to, it is 

just rare to see something this tragic. And this was one of those. 

Les said to me, he looked me straight in the eye afterward, and 

he said, Senator, you know, a lot of people have come to Libby, and 

they promise they are going to help, but they come and they leave. 

And I will be watching you. I promised myself at that moment that 

I am not going to let Les down, like whatever I do in life, I have 

got to make sure that the people of Libby get justice for this travesty that has been imposed upon them. And I—we have taken lots 

of actions since then. I will not enumerate them here right now, 

but we have got a long ways to help bring justice to the people of 

Libby. 
7 

I am sorry to say that Les passed away from asbestos-related disease in January 2007. I have kept a photograph of Les. Whenever 

I meet a new EPA Administrator, whenever I meet a new HHS 

Secretary, I ask them, I show them the photograph of Les, and I 

explain to them that this photograph is on my desk right now. And 

I do not know if they have done this, but I have encouraged them 

to keep a copy of Les’ photograph as well just as a reminder not 

just of the people of Libby but also a reminder of ordinary folks 

who have been faced with such pollution. 

We are making some headway up in Libby. In 2000 Libby was 

declared a Superfund site. In 2009 Administrator Jackson declared 

a long delayed public health emergency in Libby. This is monumental. It will go a long, long way. It has never been done before. 

And I applaud EPA Administrator Jackson for that effort. 

The Healthcare Reform Package also enacted this year contains 

some requirements for medical care at sites where there has been 

a public health emergency declaration, and that was the main 

point for putting that in that legislation. 

But in some ways we are in the same spot as we have been for 

years. I am concerned that the Agency may not be taking appropriate steps to protect public health in Libby. There is a health, 

there is a screening, but there is also the Superfund clean up 

which is the subject of this hearing, and I am a bit concerned that 

that has not been addressed fully. I am also concerned with some 

of the lack of communication between EPA and the people of Libby 

as well. 

The people of Libby want justice. And I want justice. They want 

something very simple. They want to know that their community 

and their schools are safe for them, safe for their families. It is 

EPA’s responsibility to get this clean up right so that life in Libby 

can get back to normal. And I thank you, Senator, for holding this 

hearing because it gives us an opportunity to talk to the Agency 

and make sure we are doing all we can properly for the people of 

Libby. 

I thank you. 

Senator LAUTENBERG. Thanks very much, Senator Baucus. That 

beautiful State of yours looks like it is exempt from any pollution 

or things of that nature, but I know that—— 

Senator BAUCUS. Would that that were true. 

Senator LAUTENBERG. But I know that Libby, Montana, is. 

Senator BAUCUS. Thank you. 

Senator LAUTENBERG. I went to high school in Patterson, New 

Jersey, where several of the students would work part-time in an 

asbestos factory nearby. And the story that you told about your 

friend and his family, a man came to see me with wife and son. 

He worked in the asbestos factory, and the son has mesothelioma, 

as did the wife, just from laundering the clothes that he brought 

home. So, we are looking at this toxic material and saying my gosh, 

we have to do something, something serious about protecting our 

families. 

I now call on Mathy Stanislaus, the Assistant Administrator for 

the Office of Solid Waste and Emergency Response which oversees 

the Superfund program at the Environmental Protection Agency, 
8 

and John Stephenson, Director for Natural Resources and Environment at the Government Accountability Office. 

We welcome both of you, and Mr. Stanislaus, you may begin with 

your testimony at this time. 

STATEMENT OF MATHY STANISLAUS, ASSISTANT ADMINISTRATOR, OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE, U.S. ENVIRONMENTAL PROTECTION AGENCY 

Mr. STANISLAUS. Good afternoon, Chairman Lautenberg, Ranking 

Member Senator Inhofe, and Senator Baucus. My name is Mathy 

Stanislaus. I am the Assistant Administrator for EPA’s Office of 

Solid Waste and Emergency Response. 

Thank you for the opportunity to appear today to discuss the 

Superfund program, including the progress that has been made, actions to address, program challenges and EPA’s response to GAO’s 

recently released Superfund report. Mr. Chairman, I particularly 

appreciate your longstanding support of the Superfund program. 

Prior to my arrival at EPA I had long recognized the importance 

of the Superfund program in protecting communities from the risks 

posed from hazardous waste sites. After my Senate confirmation 

one of my first priorities was to assess the Superfund program and 

identify ways to improve program performance. 

I also took it upon myself to visit some of the most impacted 

Superfund sites around the country. I visited Libby. I met with 

community members, and I fully appreciate the impacts from W.R. 

Grace’s activities. I went to Oklahoma, and I visited the Tar Creek 

facility and addressed the need for relocation of residents in Tar 

Creek as well as in Treece. I visited Coeur d’Alene and Bunker 

Hill. Because I believe that my responsibility is not only set in DC 

but to see how communities are burdened and are impacted by 

Superfund sites. 

The Superfund program has a variety of tools to protect human 

health and the environment. These include shorter term removal 

options to mitigate immediate threats to human health and the environment and remedial actions which address more complex and 

long-term clean up of hazardous waste sites. 

EPA conducts time critical and non-time critical removal actions 

to protect human health and the environment by either funding response actions directly or overseeing and enforcing actions conducted by potentially responsible parties. Through shorter term actions the Superfund program mitigates imminent threats to human 

health and the environment and controls exposure to hazardous 

substances so human health is protected while long-term clean up 

is underway. 

For example, where EPA determines that existing water supplies 

are unsafe due to releases from contaminated sites we provide alternative sources of drinking water. To date EPA has provided 

more than 2.1 million people near or on Superfund National Priorities List sites with alternative sources of drinking water. 

I also want to mention EPA’s successful Superfund enforcement 

efforts. One of EPA’s main priorities is to identify the parties responsible for the contamination of hazardous waste sites. In fiscal 

year 2009, EPA secured commitments from potentially responsible 

parties to perform clean ups and reimburse EPA for past costs 
9 

worth nearly $2.4 billion. EPA’s enforcement efforts have allowed 

the program to focus EPA’s appropriated funds on sites where responsible parties cannot be identified or are unable to pay for or 

perform the clean up. 

While Superfund continues to make progress cleaning up hazardous waste sites, we still face numerous challenges. One such 

challenge involves ensuring that our clean up activities are conducted in an accountable and transparent fashion so that communities have the information they need to be active and engaged participants in the clean up process. This challenge has become especially critical as returning Superfund properties to productive use 

has become an integral part of the clean up process. 

Another challenge is the need to more effectively leverage clean 

up resources to compensate for the largest and most complex sites 

that have come to demand an increasing proportion of EPA’s 

Superfund resources. Over the past decade this has meant some 

new construction projects could not be immediately funded. 

One of the ways to address these challenges is to effectively utilize every dollar and resource available to clean up contaminated 

sites and protect human health. In fiscal year 2009 EPA’s Superfund program obligated more than $1.1 billion to conduct clean up, 

construction and post-construction work at Superfund sites. Of that 

amount $563 million were American Recovery and Reinvestment 

Act funds while $402 million came from appropriated funds, State 

cost-share contributions, and responsible party settlement resources. EPA used $247 million of the total obligated amount to 

fund 26 new construction projects at 26 new NPL sites. 

Notwithstanding the past program efforts my assessment of the 

program indicated that we could do more to address Superfund performance. EPA recently has started a new effort called the Integrated Cleanup Initiative. Under this initiative we have begun to 

examine and identify programmatic improvements across all stages 

of the clean up process from assessment through clean up completion for all of our land clean up programs. 

By looking across all of our land clean up programs we seek to 

integrate and leverage the Agency’s clean up authorities to accelerate clean ups, address a greater number of contaminated sites, 

and put these sites back into productive use while protecting 

human health and the environment. 

I see I am out of time. If you would indulge me until I finish my 

comments? 

Senator LAUTENBERG. [Off microphone.] We will have your full 

statement for the record. 

Mr. STANISLAUS. OK. Thank you. 

[The prepared statement of Mr. Stanislaus follows:] 
10 

TESTIMONY OF MATHY STANISLAUS 

ASSISTANT ADMINISTRATOR 

OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE 

U.S. ENVIRONMENTAL PROTECTION AGENCY 

BEFORE THE 

SUBCOMMITTEE ON SUPERFUND, TOXICS, 

AND ENVIRONMENTAL HEALTH 

COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS 

UNITED STATES SENATE 

June 22,2010 

Chairman Lautenberg and members of the Subcommittee, I am Mathy Stanislaus, 

Assistant Administrator for EPA's Office of Solid Waste and Emergency Response (OSWER). 

Thank you for the opportunity to appear today to discuss the Superfund program, including the 

progress that has been made, actions taken to address program challenges, and EPA's response to 

GAO's recently released Superfund report. 

THE SUPERFUND PROGRAM 

The Superfund program was established under the Comprehensive Environmental 

Response, Compensation, and Liability Act (CERCLA or Superfund), which Congress passed in 

December 1980 to respond to the risks posed by Love Canal and other toxic waste sites. The 

Superfund program has a variety of tools to help protect human health and the environment. 

These include shorter term removal actions to mitigate immediate threats to human health and 

the environment and remedial actions, which address more complex and long-term clean up of 

hazardous waste sites 

Each year, more than 20,000 emergencies involving the release (or threatened release) of 

oil and hazardous substances are reported in the United States, with emergencies ranging from 
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small scale spills to large events requiring prompt action and evacuation of nearby populations. 

EPA coordinates and implements a wide range of activities to ensure that adequate and timely 

response measures are taken in communities affected by hazardous substances and oil releases, 

where state and local first responder capabilities have been exceeded, or where additional 

support is needed. EPA conducts time-critical and non-time-critical removal actions when 

necessary to protect human health and the environment by either funding response actions 

directly or overseeing and enforcing actions conducted by potentially responsible parties. 

Through shorter term actions, the Superfund program controls exposure to hazardous 

substances so human health is protected while long-term clean up is underway. For example, 

where EPA determines that existing water supplies are unsafe due to releases from contaminated 

sites, we provide alternative sources of drinking water. To date, EPA has provided more than 2.1 

million people near or on Superfund National Priorities List (NPL) sites with alternative sources 

of drinking water. 

The Superfund removal and emergency response programs conducted 214 emergency 

response and removal cleanup actions and provided oversight for 154 responsible party 

emergency response and removal actions for at total of368 actions in FY 2009. To date, more 

than 10,000 removals at both NPL and non-NPL hazardous waste sites have been completed to 

reduce the immediate threat to human health and the environment. 

The Superfund Remedial program continues to protect human health and the environment 

by addressing high priority, more complex, often multimedia, longer term cleanups. To date, 

1,620 sites have been listed on the NPL. Through FY 2009, EPA and its state and tribal partners 

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completed final assessment at 40,558 contaminated sites. Through FY 2009, cleanup 

construction had been completed at 1,080 NPL sites, which represents approximately 67% of the 

sites listed on the NPL, and all appropriate response actions under CERCLA have been 

completed for 338 sites (21% of the sites listed on the NPL), thereby removing them from the 

NPL. In addition, the Superfund program continued its focus on controlling potential human 

exposure at NPL sites. In FY 2009, EPA exceeded its target (I 0) by adding another I I sites 

where human exposure was brought under control. EPA also exceeded its target (I 5) in FY 2009 

by adding another I 6 sites where ground water migration was brought under control. 

Further, EPA has been very successful in leveraging federal enforcement dollars to 

secure private party cleanups. In FY 2009, EPA secured commitments from Potentially 

Responsible Parties (PRPs) to perform cleanups and reimburse EPA for past costs worth nearly 

$2.4 billion. The cumulative value of private party cleanup commitments and cost recovery 

settlements is $30.8 billion. EPA's enforcement efforts have allowed the program to focus 

EPA's appropriated funds on sites where PRPs cannot be identified or are unable to pay for or 

perform the cleanup. 

As the Superfund program has continued to mature and evolve, EPA has looked for 

additional ways to assess remedial program progress beyond the number of sites that have 

reached construction completion and help keep the public infonned about site cleanup 

milestones. To better measure long-term progress, in 2007 the program adopted a Site Wide 

Ready for Anticipated Use (SRWAU) measure. This measure tracks the number ofNPL sites 

where the remedy is constructed (construction complete) and all of the engineering and 

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institutional controls are in place to ensure that the land is protective for reasonably anticipated 

uses over the long tenn. Those anticipated uses and needed controls are outlined in the site 

Record of Decision (ROD). EPA expects to designate at least 65 sites ready for anticipated use 

in 2010. Through FY 2009, EPA had determined 409 sites to be SWRAU. 

Finally, EPA is continuing its efforts to efficiently utilize every dollar and resource 

available to clean up contaminated sites and to protect human health. In FY 2009, EPA's 

Superfund program obligated more than $1.1 billion to conduct cleanup construction and postconstruction work at Superfund sites. Of that amount, $563 million were American Recovery 

and Reinvestment Act (ARRA) funds while $402 million came from appropriated funds, state 

cost-share contributions and responsible party settlement resources. EPA used $247 million of 

the total obligated amount to fund 26 new construction projects at 26 NPL sites. 

EPA has been particularly successful in leveraging its appropriated funding through the use of 

responsible party settlements to establish site-specific special accounts. Through the end of FY 

2009, EPA has collected more than $2.9 billion (including earned interest) in more than 900 sitespecitic special accounts. Of this amount, EPA has obligated $1.6 bill ion for site-specific 

response actions, and developed multi-year plans for using more than 95% of the $1.3 billion 

that remains available to help fund response actions. 

In addition, EPA continues its work to make sure ARRA funding is used effectively and 

efficiently. Of the $600 million in ARRA funding that the Superfund program received, $582 

million was used to start and accelerate cleanup at NPL sites and support job creation and 

retention while protecting human health and the environment, and the remaining $18 million was 

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set aside for management and oversight of Superfund activities. As of the end of May 2010, 

EPA obligated $575 million in ARRA funding for remedial action and design projects at 51 NPL 

sites and 46 of those sites had started on-site construction. EPA expects the remaining 5 sites to 

start construction with in the next two months. 

INTEGRA TED CLEANUP INIT A TIVE 

While Superfund continues to make progress cleaning up hazardous waste sites, we still 

face numerous challenges. One such challenge involves ensuring that our cleanup activities are 

conducted in an accountable and transparent fashion so that communities have the information 

they need to be active and engaged participants in the cleanup process. This challenge has 

become especially critical as returning Superfund properties to productive use has become an 

integral part of the cleanup process. Another challenge is the need to more effectively leverage 

cleanup resources to compensate for the largest and most complex sites that have come to 

demand an increasing proportion of EPA's Superfund resources. Over the past decade, this has 

meant some new construction projects could not be immediately funded. 

In general, communities affected by Superfund sites are often actively engaged in the 

Superfund cleanup process. They have become active participants in future land use 

determinations at Superfund sites as site redevelopment has become a standard facet of the 

Superfund process. This participation has built on communities' overall interest to better 

understand and engage with EPA on cleanup decisions. Communities are also seeking greater 

accountability in the cleanups that affect their lives. They often want more meaningful ways to 

assess cleanup progress than the long-term milestones the program currently uses to evaluate site 

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progress-milestones that can take years to materialize. Communities' interests also encompass 

more than just Superfund cleanups; they are concerned about a range of contaminated sites, 

regardless of the cleanup authorities being used to accomplish the cleanup. Understandably, 

communities' number one concern is that a site be cleaned up; whether under CERCLA authority 

or some other federal, state or tribal environmental statute. 

The Superfund program continues to clean up a mix ofNPL sites with varying degrees of 

complexity and challenges, however, those sites that have not achieved construction completion, 

when compared with those that have achieved construction complete, are generally larger, costly, 

and more complex than the sites EPA has completed in the past. This means that the cleanup 

work we are doing today overall is more difficult, is more technically demanding, and consumes 

considerable resources at fewer sites than in the past. 

Regarding the resource issues that these sites impose on the program, statistics from FY 

2008 are illustrative of the problem. In FY 2008, nearly 57 percent of Superfund obligations for 

construction and post-construction activities went to only 17 sites. In that same year, EPA was 

unable to fund I 0 out of 26 new construction projects ready for funding due to the resource 

needs for ongoing construction work. In FY 2009, we were able to fund all of our new 

construction starts due to the more than $563 million in ARRA funding; in the absence of such 

funding, we would not have been able to do so. 

To address these and other challenges, EPA recently started a new effort called the 

Integrated Cleanup Initiative (ICI). The goal ofiCI is to improve transparency, accountability 

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and efficiency in the Superfund program and other cleanup programs throughout the cleanup 

process. Under this initiative we have begun to examine and identify programmatic 

improvements across all stages of the cleanup process - from assessment through cleanup 

completion - for all of our land cleanup programs. By looking across all of our land cleanup 

programs, Superfund, Brownfields, Federal Facilities, Resource Conservation and Recovery Act 

and Underground Storage Tanks, we seek to integrate and leverage the Agency's land cleanup 

authorities to accelerate cleanups, address a greater number of contaminated sites, and put these 

sites back into productive use while protecting human health and the environment. In addition, 

the ICI will also examine opportunities to improve our cleanup enforcement activities as a means 

to address the funding challenges that our program faces. By obtaining responsible party 

participation in conducting and/or financing cleanups, we preserve Superfund monies to address 

sites where there are no viable responsible parties. 

As one of the first steps in the ICI, starting in FY 2011, EPA will begin reporting on a 

new Superfund NPL site cleanup performance measure called "remedial action project 

completions." These projects represent discrete actions and by more closely tracking project 

completion, EPA will be able to better monitor incremental progress toward the complete 

construction oflong-term remedies at NPL sites. They are detined to address specific problems, 

such as a given media (e.g., ground water contamination), areas of a site (e.g., discrete areas of 

contamination, building demolition, etc.) or particular technologies (e.g., soil vapor extraction). 

By highlighting this more focused aspect of the cleanup process as a performance measure, EPA 

can provide communities with greater opportunity to evaluate and hold EPA accountable for 

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specific work conducted in the field in addition to overall progress toward risk reduction and 

reuse at Superfund sites. 

Further, under ICI we are working closely with clean up programs in other federal 

agencies, notably the Department of Defense and the military services which account for 

approximately 140 out of 170 federal facilities on the NPL. Many of these are large and 

complex sites with strong community interest. EPA and DoD are working to harmonize the 

performance measures at NPL sites to improve consistency in reporting, improve transparency in 

setting goals for important clean up milestones, and reduce potential site level disputes (and 

potential delays) arising from different accountability systems between EPA and DoD and the 

military services. 

COMMUNITY ENGAGEMENT INITIATIVE 

As part of EPA's commitment to increase transparency, participation and collaboration in 

government, and pursue Administrator Lisa Jackson's priorities of cleaning up our communities 

and expanding the conversation on environmentalism, OSWER has launched its Community 

Engagement Initiative. The Initiative is designed to help communities effectively participate in 

EPA decision-making processes and provide them with better information and opportunities to 

understand and have input on environmental cleanups. Transparency, access and public 

involvement are essential to meaningful and deliberate decision-making at EPA. Getting a 

diverse group of citizens involved- all with their own unique experiences and expertise- will 

better inform our decisions and actions to protect Americans where they live, work, play and 

learn. 

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In December 2009 EPA announced the Community Engagement Initiative and released 

draft principles, goals, and objectives for public feedback. We received many good comments 

and ideas from community stakeholders, local governments, states - and our own EPA programs 

and regions. Based on this input, we developed an OSWER Implementation Plan that Jays out 

specific actions that EPA will undertake to achieve the goals and objectives of the Community 

Engagement Initiative. An Implementation Plan was released in May, 2010 and we will continue 

to seek public input and ideas on the plan and Initiative as we evaluate and publicly report on the 

results of our community engagement activities. 

GAO REPORT ON SUPERFUND PROGRAM FUNDING 

Let me turn now to GAO's findings in its report "EPA's Estimated Costs to Remediate 

Existing Sites Exceed Current Funding Levels, and More Sites Are Expected to be Added to the 

National Priorities List." In the draft report reviewed by EPA, GAO issued several findings 

regarding EPA's past, current, and future funding levels and included one recommendation. One 

finding is that EPA's future costs to conduct remedial construction at fund-lead NPL sites will 

likely exceed recent funding levels. GAO also concluded that there will be more sites added to 

the NPL on average within the next five years than over the previous five years, and as a result, 

GAO recommended that EPA determine the extent to which EPA will consider vapor intrusion 

as part of the NPL listing process and how this will affect the number of sites listed on the NPL 

in the future. Finally, GAO determined that, based on data generated by a survey of regional and 

state Superfund program personnel, more than half of the non-federal sites designated as 

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"Human Exposure Not Under Control" and "Human Exposure Insufficient Data" require all or 

most of the work remaining to be completed in order to achieve construction completion. 

With respect to the report's recommendation, EPA agrees that assessing the extent to 

which vapor intrusion will play a role in listing NPL sites and the effect it will have on the 

number of future listings is important. EPA does currently consider vapor intrusion impacts in 

both the remedial and removal cleanup programs but this potential exposure route may not be 

sufficiently accounted for in the Hazard Ranking System. Another component of the ICI 

includes an evaluation as to whether the Hazard Ranking System should be modified to capture 

these types of developments in environmental assessments, as well as lessons learned and 

recommendations for improvements based upon years of user feedback. The application of the 

System to include evaluation of vapor intrusion is one of the key focus areas. In addition to the 

ICI's focus on vapor intrusion, my office is developing a number of vapor intrusion resources 

including finalizing OSWER's Draft 2002 vapor intrusion guidance, a topic-specific website and 

technical papers to improve our ability to address this issue. 

Regarding the report's conclusions tied to the overall funding situation, EPA recognizes 

that the Superfund remedial program-like many programs across the federal government-has 

the capacity to use additional resources if and when they become available, as is evident in the 

utilization of the $600 million provided through the Recovery Act. Nonetheless, EPA, like 

Congress, has to allocate scarce resources by achieving the best balance across many priorities. 

Given currently available resources, EPA will continue to use its Superfund resources efficiently 

and effectively to complete work at sites as expeditiously as possible. Toward that goal, the ICI, 

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as I've already described, contains a specific focus on improving efficiencies and accelerating 

progress where possible. 

In addition to the ICI, the President's FY2010 and FY20ll budgets both proposed 

reinstatement of the Superfund tax, which expired at the close of calendar year 1995. EPA has 

transmitted to Congress proposed legislative language. This draft legislation would ensure that 

parties who benefit from the manufacture or sale of substances commonlv found in contaminated 

sites contribute to the cost of cleanup and would provide a stable, dedicated source of revenue to 

be placed in the Superfund Trust Fund where the revenues would be available for appropriation 

by Congress to support the cleanup of the Nation's most contaminated sites. In addition, EPA's 

Special Accounts Senior Management Committee is overseeing the implementation of 

management improvements and increasing coordination and transparency related to special 

accounts among EPA's Headquarters and Region offices. We are also reporting special account 

financial and planning information in EPA's annual Congressional Justification to increase 

transparency regarding our use of special accounts funds. 

With respect to the findings related to environmental indicators, the report includes 

conclusions about the indicators, "Human Exposure Not under Control'' and "Human Exposure 

Insufficient Data." EPA assigns sites to the "not under control" category when: 1) contamination 

has been detected at a site at an unsafe level, and 2) a reasonable expectation exists that people 

may be exposed to the contamination. Sites EPA assigns to the "insufficient data'' category are 

those at which the Agency does not yet have sufficient information to determine whether there 

are any current, unacceptable human exposure pathways at the site. Therefore, no immediate 

determination is possible. EPA typically assigns sites to this category when response actions 

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have not yet been initiated or when response actions have been initiated but have not yet 

generated sufficient, reliable information to make a human exposure determination. 

I would like to identify several issues associated with the human exposure measure that 

require more clarification. It is important to note that the designation of a site as "'human 

exposure not under control'' should not be construed to mean that people are at risk of imminent 

harm. When EPA identifies imminent threats, we take immediate action to address them using 

our emergency removal authorities. 

In addition, EPA has made significant progress not only in responding to "not under 

control" sites, but also reducing the number of"not under control" sites. Since this measure's 

inception in 2002, EPA has reduced the "not under control" sites from 120 to 84, even though 

almost 90 sites were added to the reporting universe during that time. Further, EPA expects to 

make significant progress in turther reductions under current funding levels. At the end of Fiscal 

Year 2009, the EPA Regional Superfund Programs estimated that within 5 years, by the end of 

Fiscal Year 2015, 50% (42 sites) of the sites currently categorized as "not under control" will 

move into the Under Control Category. 

Further, GAO focused on cleanup progress necessary to achieve construction completion 

at the "not under control" and "insufficient data" sites. Based upon its survey of regional and 

state Superfund personnel, GAO determined that more than half of the non-federal sites with 

either of these two designations at the time the survey was conducted require all or most of the 

work remaining to be completed before these sites reach the construction completion milestone. 

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Such a characterization of progress can be misleading in that it suggests that it can be years 

before a site achieves "human exposure under control" (HEUC) status when, in fact, this can be 

accomplished long before the site reaches construction completion. Of the 536 NPL sites that 

are not yet construction complete, 299 (or 56%) have already achieved HEUC. 

CONCLUSION 

In conclusion, the Superfund program continues to make progress in the face of several 

challenges and will continue protecting human health and the environment through the cleanup 

of hazardous waste sites. EPA believes the new ICI initiative will be important in helping 

address critical aspects of Superfund program challenges particularly in terms of increasing 

transparency, accountability and efficiency. Let me also note that we appreciated the 

constructive working relationship and dialogue with GAO as they developed their report; and we 

commend GAO for undertaking this important study with respect to budget issues in the 

Superfund remedial program. Thank you for the opportunity to discuss these important issues 

with you today; I am happy to answer any questions you may have. 

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Senator LAUTENBERG. Thank you. 

Mr. Stephenson. 

STATEMENT OF JOHN B. STEPHENSON, DIRECTOR, NATURAL 

RESOURCES AND ENVIRONMENT, U.S. GOVERNMENT ACCOUNTABILITY OFFICE 

Mr. STEPHENSON. Thank you, Mr. Chairman, Ranking Member 

Inhofe, and Senator Baucus. I am pleased to be here to discuss 

GAO’s report on Superfund issues being released to the full Committee today. 

The Superfund program, as you know, has been around for three 

decades. Since that time over 47,000 sites nationwide have been assessed, and the most severely contaminated have been placed on 

the National Priorities List or NPL. There are currently about 

1,270 sites on the list with New Jersey, California, and Pennsylvania having the most. About 160 of the sites are Federal, primarily Department of Defense facilities, but the remaining 1,100 

are industrial or non-Federal facilities. 

With the expiration of the Superfund tax in 1995 the size of the Trust Fund has dwindled from $5 billion in 1997 to a little over 

$130 million today. Currently funding for site assessment and 

clean up if no responsible party can be identified or made to pay 

comes primarily from appropriations averaging about $1.2 billion a 

year. 

The report we are releasing today in part focuses on the 75 sites 

that still pose a risk of unacceptable human health exposure. We 

reasoned that these sites should be receiving the highest priority 

for clean up as quickly and efficiently as possible. However, we 

found that EPA has spent over $3 billion on these 75 high risk 

sites, an average of about $40 million per site, and many have been 

in clean up for over a decade, yet more than half of the work remains for over 60 percent of these sites. 

This is because the EPA spreads limited resources thinly across 

a large number of States and sites in an effort to make everybody 

happy. And this approach results in lengthier, more costly, and 

more inefficient clean ups. These inefficiencies also mean that people around these sites potentially will be exposed to health risks 

far longer than would be the case if clean up were completed more 

quickly. In fact at the current rate 41 of the 75 sites will still pose 

a risk of human health 5 years from now. EPA did receive $600 

million in Recovery Act funding, which has been mentioned, and 

this did enable them to speed up clean up at 51 more sites. 

We also found, based on our survey of regional site coordinators, 

that EPA’s Remedial Action funding needs are 2 to 2.5 times greater than the funds it typically receives for that purpose. EPA uses 

a collaborative system to allocate Superfund resources among its 

regions and States. But according to our survey, which collected 

data on fiscal years 2000 through 2009, most regions have sites 

that have experienced delays in starting clean up because of insufficient funding. Over one-third of the sites are not funded in the 

year they are ready and often wait 1 to 3 years until funds become 

available. 

While it seems clear that EPA will need more resources for remedial actions at sites than it currently has, the exact amount is dif-
24 

ficult to determine. Unknowns such as the status of responsible 

parties, their ability to pay, and the status and scope of the clean 

up once remedial action is underway make out-year projections 

very difficult. 

For example, we recently reported that for the Federal Creosote 

Superfund site in New Jersey the greater than expected quantities 

of contaminated material found during clean up contributed to a 

$233 million increase in remedial costs over EPA’s original estimate, and the total cost ballooned to nearly $350 million for this 

site alone. 

Finally, Mr. Chairman, we found that the number of new sites 

listed on the NPL over the next 5 years will likely be greater than 

the number listed over the past 5 years, further increasing the 

need for resources in the future. EPA regional and State officials 

we interviewed estimated that from 100 to 125 sites, an average of 

20 to 25 sites per year, will be added to the NPL over the next 5 

years in contrast to the about 16 sites per year that were added 

in the past 5 years. 

The current economic conditions in the States and the inability 

of responsible parties to pay for clean up are contributing factors 

to the expected increase in newly listed sites. In addition the number of new sites listed in the future could further increase by up 

to 37 sites if EPA implements our recommendation to include the 

risk of vapor intrusion into homes and commercial properties as 

criteria for listing. EPA does not currently recognize these risks in 

the listing process and thus cannot use remedial program funding 

to clean up these sites. 

In conclusion, we found that limited funding for the Superfund 

program has caused delays in cleaning up Superfund sites and that 

more resources would likely result in quicker, more efficient, and 

less costly clean up in the long run. More importantly, this could 

remove the risk of unacceptable human exposure from these sites 

sooner than would be possible at the current funding levels. 

Mr. Chairman, that concludes a summary of my statement, and 

I would be happy to answer questions. 

[The prepared statement of Mr. Stephenson follows:] 
25 

GAO 

For Release on Delivery 

E>:pected at 2:30 p.m. EDT Tuesday, June 22, 2010 

GA0-10-857T 

United States Government Accountability Office 

Testimony 

Before the Subcommittee on Superfund, 

Toxics and Environmental Health, 

Committee on Environment and Public 

Works, United States Senate 

SUPERFUND 

EPA's Costs to Remediate 

Existing and Future Sites 

Will Likely Exceed Current 

Funding Levels 

Statement of John B. Stephenson, Director 

Natural Resources and Environment 

i 

- GAO e Accountability* lnt~grlty * Reliability 
26 

Mr. Chairman and Members of the Subcommittee: 

I am pleased to be here to summarize the findings of our report on funding 

issues related to the Environmental Protection Agency's (EPA) Superfund 

program, which is being released today.' To protect human health and the 

environment from the effects of hazardous substances, Congress enacted 

the Comprehensive Environmental Response, Compensation, and Liability 

Act (CERCLA) in1980, which established the Superfund program.' Since 

1980, EPA has identified more than 47,000 hazardous waste sites 

potentially requiring cleanup. As of the end of fiscal year 2009, 1,269 of the 

most seriously contaminated sites were included on EPA's National 

Priorities List (NPL): 1,111 nonfederal sites and 158 federal facilities.' At 

the time of listing, EPA had determined that these sites posed relatively 

high risks to hmnan health or the environment from releases or threatened 

releases of hazardous substances, such as lead and polychlorinated 

biphenyl. These substances can cause a variety of health effects-such as 

birth defects, cancer, and developmental disorders-in people exposed to 

them. Of the nonfederal sites listed on the NPL at the end of fiscal year 

2009, EPA identified 75 that have "unacceptable human exposure"-actual 

or reasonably expected exposure of an individual to hazardous 

substances, pollutant<51 or contaminants at levels that present an 

unacceptable risk-to contaminants for people living, recreating, and/or 

working in the surrounding areas. In addition, another 164 of the sites 

listed on the NPL at the end of fiscal year 2009 may potentially pose 

serious risks since EPA is in the process of determining if there is 

unacceptable hmnan exposure at these sites:' 

The Superfund cleanup process begins with the discovery of a potentially 

hazardous site or the notification to EPA of possible releases of hazardous 

1

GAO, Superfund· E'PA S Estimated Costs to Remediate Existing Sites Exceed Current 

Funding Level~ and More Sites A.re Expected to Be Added to the Nat.ional Priolities List, 

GA0-10-380 (Washington, D.c., May 6, 2010). 

Tub. L. No. 96-510 (1980), codified, as amended, at42 U.S.C. §§ 9601-9675 (2010). 

*fhe 158 federal facilities are owned and operated by federal agencies, such as the 

Departments of Defense, Energy, and the Interior. 

4

At the remaining 872 sites, EPA ha...:; determined that human exposure has been controlled, 

but additional work to clean up the sites may still be needed. EPA refers to sites with 

unacceptable human exposure as "\urrent human exposures not under control" and sites 

v.ith unknown human exposure as "insufficient data to determine human exposure control 

status." 

Page 1 GA0-10-857T Superfund 
27 

substances that may threaten human health or the environment. EPA 

regional offices use a screening system called the Hazard Ranking System 

(HRS) to numerically assess sites' relative potential threat to human health 

and the environment. The HRS scores sites on four possible pathways of 

exposure: groundwater, surface water, soil, and air. Those sites with 

sufficiently high scores are eligible for proposal to the NPL.' EPA regions 

submit these sites to EPA headquarters for possible listing on the NPL on 

the basis of a variety of additional factors, including the availability of 

alternative state or federal programs and concurrence from the governor 

of the state or environmental agency head in which the site is located. 

Sites that EPA decides should be listed are proposed in the Federal 

Register. After a period of public comment, EPA reviews the comments 

and decides whether to formally list the sites as "final" on the NPL. 

Once EPA lists a site, it is typically cleaned up through EPA's Superfund 

remedial program. EPA or a responsible party will begin the remedial 

process by conducting a remedial investigation and feasibility study to 

identify the nature and extent of contamination, quantify potential risks, 

and evaluate potential remedies.' The culmination of these studies is a 

Record of Decision (ROD), which identifies EPA's selected remedy for 

addressing the site's contamination.' The selected remedy is then designed 

during remedial design and implemented with construction activities in 

the remedial action phase, when actual cleanup of the site generally 

begins. When all physical construction at a site is complete, all inunediate 

tlueats have been addressed, and all long-term threats are under control, 

EPA generally considers the site to he "construction complete." Of the 

5

W'hile the HRS is the principal mechanism EPA uses to place sites on the NPL) two 

additional mechanisms can also be used. First, a site can be listed regardless of its HRS 

score if a state or territory designates the site as its single top~priority site. Second, a site 

may be listed if (1) the Agency for Toxic Substances and Disease Registry of the U.S. Public 

Health Service has issued a health advisory that recommends removing people from the 

site, (2) EPA detennines the site poses a significant threat to public health, and (3) EPA 

anticipates it will be more cost-effective to use its remedial authority than to use its 

emergency removal authority to address contamination at the site, 

~or certain remedial actions, additional work at a site may be required after construction 

is completed, such as continuing groundwater restoration efforts or monitoring the site to 

ensure that the remedy remains protective. For EPA-lead remedial actions that have a 

groundwater or surface water restoration component, EPA funds the necessary activitieslmown as long-term response actions-for up to 10 years before turning over these 

responsibilities to the state. 

7

Cleanup at a site is often divided into smaller units (operable units) by geography, 

pathways of contamination, or type of remedy. 

Page 2 GA0-10-857T Superfund 
28 

1,111 nonfederal sites listed on the NPL as of the end of fiscal year 2009, 

695 had reached EPA's construction complete milestone, wldle the 

remaining 416 had not. Most sites then enter into the operation and 

maintenance phase, when the responsible party or the state maintains the 

remedy and EPA ensures that the remedy continues to protect human 

health and the environment. Eventually, when EPA and the state 

determine that no further site response is needed, EPA may delete the site 

fromtheNPL.' 

NPL cleanup efforts are typically expensive and can take many years. 

While responsible parties are liable for conductiug or paying for site 

cleanup of hazardous substances, in some cases, parties cannot be 

identified or may be unwilling or financially unable to perform the 

cleanup. To fund EPA-led cleanups at nonfederal NPL sites, EPA uses the 

Hazardous Substance Superfund (trust fund) from wldch EPA receives 

annual appropriations. Historically, the trust fund was financed primarily 

by taxes on crude oil and certain chemicals, as well as an environmental 

tax on corporations based on their taxable income; however, the authority 

for these taxes expired in 1995,' and shortly thereafter the balance in the 

trust fund started diminishing. Since 2001, appropriations from general 

revenues have been the largest source of funding for the trust fund. At the 

start of fiscal year 2009, the trust fund had a balance of $137 million. 

Superfund program appropriations have averaged about $1.2 billion 

annually siuce 1981, although the annual level of these appropriated funds 

has generally declined in recent years when adjusted for inflation. 

In fiscal year 2009, EPA received about $1.29 billion for the Superfund 

program, of wldch approximately $605 million was for the remedial 

program." Oftlds amount, EPA allocated $125 million for preconstruction 

activitie..'i-remedial investigation, feasibility study, and remedial design 

activities-as well as other nonconstruction activities, including 

conducting prelisting activities through cooperative agreements with 

states, oversight of all responsible party-lead activities, and providing 

general support and management. In addition, EPA allocated $267 million 

8

Although most sites progress through the cleanup process in roughly the same way) EPA 

may take different approaches based on site-specific conditions. 

'The budget proposed by the administration for fiscal year 2011 reflects legislative 

proposals to reestablish a ta.x to support the Superfund program. 

1

'1'he remaining $680 million was for other activities) such as emergency response and 

removal, enforcement, and operations and administration. 

Page 3 GAO-l0-857T Superfund 
29 

for remedial actions. EPA allocated the remaining $213 million for 

headquarters and regional personnel to implement and oversee the overall 

program; for site management; and for providing technical and analytical 

support for all non-NPL sites as well as proposed, final, and deleted NPL 

sites. In addition, as part of the American Recovery and Reinvestment Act 

of 2009 (Recovery Act), EPA's Superfund remedial program received an 

additional $600 million." 

My testimony today summarizes highlights from our report. Specifically, I 

will discuss ( 1) the cleanup and funding status at currently listed 

nonfederal NPL sites with unacceptable or unknown human exposure, (2) 

what is known about the future costs to EPA to conduct remedial actions 

at nonfederal NPL sites that are not construction complete, (3) the process 

EPA uses to allocate remedial program funding, and ( 4) the number of 

sites EPA and selected state officials expect will be added to the NPL over 

the next 5 years, and what they expect the costs of cleaning up those sites 

will be. 

The findings of our report are based on an electronic survey of branch 

chiefs from the 10 EPA regions; data from EPA's Comprehensive 

Environmental Response, Compensation, and Liability Information System 

and Integrated Financial Management System; EPA guidance and planning 

documents; and interviews with officials from EPA headquarters and 

regional offices, 10 selected states, and the Association of State and 

Territorial Solid Waste Management Officials. The report contains a 

detailed overview of our scope and methodology. This work was 

conducted in accordance with generally accepted government auditing 

standards. Those standards require that we plan and perform the audit to 

obtain sufficient, appropriate evidence to provide a reasonable basis for 

our findings and conclusions based on our audit objectives. We believe 

that the evidence obtained provides a reasonable basis for our findings 

and conclusions based on our audit objectives. 

uOfthe $600 million, EPA allocated $582 million to remedial cleanup activities and $18 

million to internal EPA activities related to the management, oversight, and reporting of 

Superfund Recovery Act ftmds. 

Page 4 GA0-10-857T Superfund 
30 

Considerable Work 

Remains at Most 

Nonfederal NPL Sites 

with Unacceptable or 

Unknown Human 

Exposure, and Some 

Site Cleanups Have 

Not Been Funded at 

the Most Efficient 

Level 

As detailed in our report, over 60 percent of the 75 nonfederal NPL sites 

with unacceptable human exposure have all or more than half of the work 

remaining to complete remedial construction, According to EPA regional 

officials' responses to our survey, EPA has plans to control human 

exposure at all of the 75 sites with unacceptable human exposure; 

however, our survey results also show that EPA regional officials expect 

41 of the sites to continue to have unacceptable exposure until fiscal year 

2015 or later." Similarly, over 60 percent of the 164 nonfederal NPL sites 

with unknown human exposure have all or more than half of the work 

remaining to complete remedial construction, according to EPA regional 

officials' responses to our survey. The majority of the sites with unknown 

human exposure that have all of the work remaining to complete 

construction are in the remedial investigation phase, which is when EPA 

usually detennines a site's human exposure status, according to EPA 

gtridance. EPA may also designate a site as having unknown human 

exposure during the construction phase of work, or after a site has met the 

constn1ction complete milestone, if new information suggests that there 

may be risk at the site, or if an investigation is under way to assess a 

potential exposure pathway not previously analyzed, 

Since CERCLA was passed in 1980 through the end of fiscal year 2009, 

EPA expended a total of $3 billion in constant 2009 dollars on the 75 sites 

with unacceptable exposure and $L2 billion in constant 2009 dollars on 

the 164 sites where exposure is unknown, based on EPA data. 13 However, 

despite the relatively high level of expenditures at sites with unacceptable 

human exposure, EPA regional and headquarters officials told us that 

construction has not been conducted in the most timely and cost-efficient 

manner at some of these sites because EPA had to balance limited annual 

resources among various program activities, At the Eureka Mills site in 

Utah, people who are in contact with soil and dust contaminated with lead 

from mining activities face human health risks. From 2003 to 2008, the site 

received $6.6 million to $10 million a year for construction, even though 

regional officials said that an additional $3 to $5 million per year would 

have allowed them to complete construction at the site 3 to 4 years earlier 

1

?Thirty of the 41 sites that EPA regional officials expect v.ill continue to pose unacceptable 

risk until fiscal year 2015 or later are "teenager sites" -sites that have been on the NPL for 

at least 13 years. 

1

1'hese totals include constmction costs and all other appropriated site~specific Superfund 

expenditures through fiscal year 2009, except for reimbursable and homeland security 

supplemental expenditures. 

PageS GA0-10-857T Superfund 
31 

EPA's Costs for 

Conducting Remedial 

Construction at 

Nonfederal NPL Sites 

Will Likely Exceed 

Recent Funding 

Levels for These 

Activities 

at a reduced overall cost. However, with the addition of $26.5 million for 

the Eureka Mills site in fiscal year 2009 from Recovery Act funding, 

officials said that they will be able to complete construction at least 1 year 

earlier than planned and control human exposure at the site. In response 

to our survey, EPA regional officials noted that they are using Recovery 

Act funding to partially or completely control the unacceptable human 

exposure at 20 NPL sites. However, despite EPA's use of Recovery Act 

funds to control human exposure at these sites, EPA officials noted that 

EPA's constrained funding has caused delays in the control of human 

exposure at some sites. 

As we noted in our report, EPA's annual costs to conduct remedial 

construction in the most efficient manner at nonfederal NPL sites for fiscal 

years 2010 through 2014 may range from $335million to $681 million, 

according to EPA regional officials' estimates (see table 1 ). " These 

estimates include EPA's costs to conduct remedial actions at 142 of the 

416 nonfederal sites that are not construction complete. For the remaining 

274 sites, EPA regional officials were unable to provide cost estimates for 

57 sites, expect responsible parties to fully fund remedial actions at 206 

sites, and do not expect to incur additional costs to complete construction 

at 11 sites because these sites are already fully funded. 

HOur survey asked EPA regional officials to provide the approximate projected costs to 

EPA to complete construction at a site in the most efficient manner, given what is currently 

known about contamination at a site, EPA regional officials provided cost estimates based 

on various information, including ROD estimates, estimates developed during remedial 

design or construction, and estimates developed during remedial investigations and 

feasibility studies. According to EPA officials, cost estimates for individual fiscal years for 

a site may change because of a number of factors, such as a site's construction readiness 

and contracting delays. 

Page 6 GAO·l0·857T Superfund 
32 

Table 1: EPA Regional Officials' Estimates of Costs to EPA to Conduct Remedial 

Construction in the Most Efficient Manner at Existing Nonfederal Sites on the NPL, 

as of September 30, 2009 

Dollars in millions 

681 

520 

2013 420 

2014 335 

2015 and beyond $3,036 

Source: GAO analySis ol EPA reg1onal off1cials' responses to o1.1r Sl.lrvey 

Note: These data include EPA's cost estimates for 142 of the 416 nonfederal sites that are not 

construction complete. For the remaining 274 sites, EPA was unable to provide annual cost estimates 

for 57 sites, EPA indicated that responsible parties are fully funding remedial actions at 206 sites, and 

EPA does not expect to incur additional costs to complete construction at 11 sites. Unless otherwise 

specified, these numbers are as reported by EPA, and are not adjusted for inflation by GAO. 

These annual cost estimates for remedial construction at these sites 

exceed past annual funding allocations for such actions. For example, 

EPA regional officials' cost estimates for remedial construction for the 

next 2 years-fiscal years 2011 and 2012-are $253 million to $414 million 

greater than the $267 million in annual funding that EPA allocated for 

remedial actions in fiscal year 2009. From fiscal years 2000 through 2009, 

EPA allocated $220 million to $267 million in annual funding for remedial 

actions. According to EPA headquarters officials, however, funds from 

additional sources-such as prior year funds, settlements with responsible 

parties, and state cost share agreements-may also be available to fund 

remedial construction from year to year. While the amount of funding 

available through these sources may vary substantially from year to year, 

according to EPA headquarters officials, approximately $123 to $199 

million was available from additional sources for remedial actions in fiscal 

years 2007 through 2009. Our analysis indicates that, even if this level of 

funding were available in future years, it would not supplement EPA's 

annual funding allocation enough to cover the estimated costs for 

conducting remedial construction in fiscal years 2011 and 2012. Therefore, 

despite funding from additional sources, EPA's estimated costs to conduct 

remedial construction will exceed available funds if funding for remedial 

construction remains constant. 

Furthermore, these annual cost estimates are likely understated. These 

officials were not able to provide annual construction cost estimates for 57 

Page 7 GA0-10-857T Superfund 
33 

of the 416 nonfederal sites that are not yet construction complete because 

they are in the early stages of the remedial process, and EPA does not yet 

know the extent of the contamination and/or has not chosen a cleanup 

remedy for them." For some additional sites, EPA regional officials were 

unable to provide cost estimates for construction at some of the operable 

units at the site. In addition, EPA regional officials' estimates did not 

include costs for conducting long-term response actions-such as 

operating groundwater treatment facilities-which are considered part of 

the remedial action, or for performing 5-year site reviews, both of which 

EPA funds from its remedial action allocation and would, therefore, 

increase the cost estimate for remedial actions. 

EPA's esttmates also did not include construction costs for sites that 

currently have a potentially responsible party that may be unable to fund 

the cleanup. EPA officials told us that EPA has identified one or more 

potentially responsible parties at 206 of the 416 nonfederal NPL sites that 

are not yet construction complete. However, officials also said that they 

were slightly or not at all confident that a responsible party would fund 

future remedial actions at 27 of these sites. 

EPA headquarters and regional officials also told us that EPA's actual 

costs for construction are typically higher than its cost estimates because 

of a number of uncertainties. Most tmportantly, according to EPA officials, 

the extent of contamination at a site is often greater than EPA expected 

when it developed the cost esttmate, which can expand the scope of work 

and remedies needed and increase overall construction costs. For 

example, we recently reported that at the Federal Creosote Superfund site 

in New .Jersey, the greater-than-expected quantities of contaminated 

material contributed to a $111 million increase in construction costs over 

EPA's estimates. 16 Another factor that can increase construction costs is a 

change in acceptable contaminant levels. in addition, according to EPA, 

the actual costs of goods and services-such as energy, construction 

materials, and labor-may increase above estimated prices, causing an 

increase in the actual construction cost. EPA officials noted that there may 

be some instances when construction costs are overestimated because, for 

15For 9 of the 57 sites, EPA officials did provide a broad range of costs for construction, but 

we did not include those costs in our analysis because EPA officials were unable to provide 

more precise, annual cost figures for those sites. 

16GAO, Superfund' Infonna.tion on Cost and Other Issues Related to the Cleanup of the 

Federal Creosote Site, GA0-10-277 (Washington, D.C.: February 251 2010). 

Page 8 GA0-10-857T Superfund 
34 

EPA Allocates 

Remedial Program 

Funding Separately 

for Preconstruction 

Activities and 

Remedial Actions, and 

Limited Funding Has 

Caused Delays at 

Some Sites 

example, there is less contamination at a site than previously thought or 

the prices of goods and services decrease; however, the officials 

conunented that this is rare. The frequent occurrence of additional 

unexpected costs enhances the likelihood that EPA's costs for remedial 

actions over the next several years will exceed recent funding levels for 

these activities, and EPA may be forced to choose between funding 

construction at some sites in the most efficient manner or funding 

construction at more sites less efficiently. 

As explained in om; report, EPA allocates funds separately for preconstruction activities-such as remedial investigation and remedial 

design-and remedial actions. EPA headquarters allocates funds for preconstruction activities to the regions for them to distribute among sites. 

EPA headquarters determines the amount of resources that the Superfund 

program will allocate to the regions by using a model that distributes 

available funding based on a combination of historical allocations and a 

work-based scoring system that scores each region based on projects 

planned for the upcoming year." According to EPA's Superfund Program 

Implementation Manual, at the initiation of the planning process, 

headquarters provides general projections of funding for preconstruction 

activities that will be available to the regions. On the basis of these 

projections, each region then develops a plan for allocating these ftmds to 

sites. Before finalizing this plan, each region holds planning discussions 

with headquarters to discuss actions that can be accomplished during the 

year and alters its plans, as needed, based on refined projections of 

available funding from headquarters. 

To allocate funding for remedial actions, EPA headquarters work' in 

consultation with the regions to allocate funds on a site-by-site basis. 

EPA's Superfund Program Implementation Manual states that sites with 

ongoing construction receive priority for funding over new construction 

work Headquarters develops the initial plan for ongoing construction 

based on regional funding requests, projections of available funding, and 

discussions with regional officials. According to EPA, the agency's goal in 

allocating funds is to ensure that all sites with ongoing construction 

17As part of this allocation, EPA headquarters includes ftmding for other nonconstruction 

activities, including conducting prelisting activities through cooperative agreements with 

states, oversight of all responsible party-lead activities, and providing general support and 

management. 

Page 9 GA0-10~857T Superfund 
35 

continue to progress toward construction completion while also funding 

some new construction projects. 

According to EPA headquarters and regional officials, the funds for both 

preconstruction activities and remedial actions have not been snfficient to 

clean up some sites in the most timely and cost-efficient manner. EPA 

officials from several regions told us that their regions currently receive 

about half or less than half of the funding they could use for 

preconstruction activities. As a result, according to our survey, which 

collected data on fiscal years 2000 through 2009, most regions have sites 

that have experienced delays in the preconstruction phase because of 

insnfficient funding. Similarly, sites with ongoing construction have 

experienced delays caused by limited funding, according to EPA officials. 

Since fiscal year 2000, most regions have experienced delays because of 

insnfficient funding at one or more sites with ongoing construction, 

according to responses to our survey. According to several EPA regional 

officials, delays in funding for sites with ongoing construction increase the 

length oftime it takes to clean up a site; the total cost of cleanup; and, in 

some cases, the length of time populations are exposed to contaminants. 

In addition, funding limitations have caused delays at sites that were ready 

to begin new construction. According to EPA Superfund Accomplishment 

Reports, between fiscal years 2004 and 2008, 54 sites, or over one-third of 

all sites ready for new construction funding, were not funded in the year 

that they were ready to begin construction, and some sites were not 

funded for several years after they were construction-ready. 

EPA officials told us that EPA prioritized sites to receive the $582 million 

in American Recovery and Reinvestment Act funds allocated to 

remediation in a manner similar to the way EPA prioritizes sites for 

remedial actions. According to EPA headquarters officials, 25 sites 

needing new construction funding in fiscal year 2009 would most likely not 

have received funding had Recovery Act funding not been available. 

Page 10 GA0-10-857T Superfund 
36 

Most EPA Regional 

and Selected State 

Officials Expect an 

Increase in the 

Number of Sites 

Added to the NPL 

over the Next 5 Years 

but Cannot Estimate 

the Cleanup Costs 

Our report also notes that most of the EPA regional officials and state 

officials we interviewed told us they expect the number of sites listed on 

the NPL over the next 5 years will be greater than the number listed in the 

past 5 years. EPA regional officials estimate that from 101 to 125 sites-an 

average of 20 to 25 sites per year-wili be added to the NPL over the next 

5 years. This is higher than the 79 sites-an average of about 16 sites per 

year-added from fiscal years 2005 through 2009. As table 2 shows, all 

EPA regions expect that the number of sites added to the NPL over the 

next 5 years from their region could increase. According to EPA 

headquarters officials, the number of sites proposed for listing over time 

has decreased as a result of the expanded use of other cleanup programs, 

including state programs. Most of the officials who expect an increase in 

listings noted that current economic conditions--which can limit states' 

abilities to clean up sites under their own programs and responsible 

parties' abilities to pay for cleanup-are a contributing factor to the 

expected increase in listed sites. 

Table 2: Comparison of the Number of Sites EPA Listed from Fiscal Year 2005 

through 2009 and the Number of Sites Projected to Be Listed from Fiscal Years 

2010 through 2014, by Region 

Number of sites EPA 

listed from fiscal year 

2005 through fiscal 

EPA region year 2009 

12 

8 

4 14 

14 

4 

4 

10 

All regions 79 

Number of sites EPA 

regional officials project Projected change 

will be added to the NPL in the number of 

over the next 5 years sites listed 

3to5 Oto+ 2 

15to20 + 3 to 8 

10 to 15 + 2 to 7 

20to 25 +6to 11 

20 +6 

10to 15 + 1 to6 

to +2 

+1 

3to5 -1 to+ 1 

+2 

101 to t25 +22to46 

Sources: GAO analysis based c.pon EPA data and reg1onal off1C1a!s' projectionS 

Most of the officials we spoke with in the 10 selected states also expect 

that the number of sites listed from their states over the next 5 years could 

increase above the number of sites listed over the past 5 years, as table 3 

shows. For example, officials from the Michigan Department of Natural 

Page 11 GA0-10-857T Superfund 
37 

Resources and Environment said that they expect EPA to list five sites in 

Michigan to the NPL over the next 5 years, even though no sites have been 

listed from their state since 1996. These officials noted that the Superfund 

program has traditionally been a program of last resort, but declining 

resources in their state's cleanup program have renewed Michigan's 

interest in cleaning sites up through the federal program. 

Table 3: Comparison of the Number of Sites EPA Listed from Each of the 10 States 

from Fiscal Years 2005 through 2009 and the Number of Sites State Officials Project 

May Be Listed from Fiscal Years 2010 through 2014, by State 

California 

Washington 

Number of sites 

EPA listed from fiscal 

year 2005 through 

fiscal year 2009 

0 

Number of sites state 

officials project will 

be added from their Projected change 

states to the NPL over in the number of 

the next 5 years sites listed 

1 to2 

1 to4 

Oto+ 1 

+2 

-1 to+ 2 

Sovrces GAO analysis based upon EPA data and S1a!e agency ofl•aals' prOjecMns. 

Neither EPA regional officials nor state officials we contacted were able to 

provide cost estimates for many of the sites they expect to be added to the 

NPL over the next 5 years. Furthennore, when these officials were able to 

provide cost estimates, most of them were imprecise figures based on 

limited knowledge and best professional judgment. Officials also 

explained that they could not provide cost estimates for some of the sites, 

because either the type and extent of contamination are not yet known, or 

officials have not yet identified the actual sites that may be listed. 

Therefore, it is impossible to accurately estimate what the cost may be to 

clean up these sites. However, we reported in July 2009 that the average 

amount EPA spent to clean up individual sites has increased in recent 

Page 12 GA0.10-S57T Superfund 
38 

years." For example, EPA spent an averaJ'le of approximately $7.5 million 

at sites that reached EPA's construction complete milestone in fiscal year 

1999. EPA's expenditures increased to an average of about $10.2 million in 

total expenditures per site at sites reaching construction complete in fiscal 

year 2007. ln that report, we noted that individual site costs may have 

increased because the sites on the NPL now are more complex than in the 

past, construction costs have been rising, and EPA has not been able to 

identify as many responsible parties to fund site cleanups as in the past, 

leaving a higher share for EPA to fund. 

In addition to the number of sites that conld be listed, the number of sites 

eligible for the NPL conld increase if EPA begins to assess, as a part of its 

listing process, the risk of vapor intrusion caused by subsurface hazardous 

substances that have migrated via the air into homes and commercial 

properties. Although sites with vapor intrusion can pose considerable 

human health risks, EPA's HRS-the mechanism used to identify sites that 

qualify for NPL listing--does not currently recognize these risks; 

therefore, unless a site with vapor intrusion is listed on some other basissuch as groundwater contamination-EPA cannot clean up the site using 

remedial program funding. Many EPA regional officials and state officials 

noted that vapor intrusion is a concern, and several of these officials told 

us that they believe additional sites would be eligible for listing if 

assessments of vapor intrusion were included as part of the listing 

process. According to an EPA headquarters official, based on recent 

discussions with regional officials, up to 37 sites could be eligible for NPL 

listing if EPA includes vapor intrusion assessments as part of the listing 

process. However, according to EPA headquarters officials, EPA must first 

determine whether or not it can consider the vapor intrusion pathway 

under its existing HRS regnlations, and it has not yet made such a 

determination. While these sites are not currently eligible for NPL listing, 

the EPA headquarters official noted that EPA is addressing vapor intrusion 

at 13 of these sites through its Superfund removal program; however, this 

official also told us that, when conducting removal actions, EPA is limited 

in its ability to fully remediate the source of contamination. For exan1ple, 

according to an official from the Montana Department of Environmental 

18GAO, Superfund Litigatwn Has Decrea..r;;ed and A'PA Needs Better information on Site 

Cleanup and Cost Issues to Estimate Future Program Funding Requirement.<;, GA0-09-656 

(Washington, D.C.: July 15, 2009). 

Page 13 GA0-10-857T Superfund 
39 

GAO Contact and 

Staff 

Acknowledgments 

(361207) 

Quality, preliminary data collected at the Billings PCE site'"-which the 

official noted is not eligible for NPL listing-indicated vapor intrusion in 

buildings, and EPA conducted a removal action at this site. However, 

according to this official, it is unclear whether the removal action was 

effective in mitigating the vapor intrusion contamination, and people may 

continue to be exposed. 

In conclusion, we found that limited funding for the Superfund program 

has caused delays in cleaning up some sites in recent years. This limited 

funding, coupled with increasing costs of cleanup, has forced EPA to 

choose between cleaning up a greater number of sites more slowly at 

higher cost and cleaning up fewer sites more quickly at lower cost. 

Compounding these challenges, EPA does not currently assess the relative 

risk posed by vapor intrusion when deciding which sites to include on the 

NPL, and assessing this risk could lead to an increase in the number of 

sites listed on the NPL. However, if these sites are not assessed and, if 

needed, listed on the NPL, some seriously contaminated hazardous waste 

sites with unacceptable human exposure may not be cleaned up. In our 

report being released today, we are recommending that the Administrator 

of EPA determine the extent to which EPA will consider vapor intrusion 

as part of the NPL listing process and how this will affect the number of 

sites listed in the future. EPA agreed with our recommendation. 

Mr. Chairman, this concludes my prepared statement. I would be pleased 

to respond to any questions that you or Members of the Subcommittee 

may have at this time. 

For questions about this statement, please contact John Stephenson at 

(202) 512-3841 or stephenson,j@gao.gov. Individuals making key 

contributions to this testimony include Barbara Patterson and Vincent P. 

Price, Assistant Directors; Deanna Laufer; and Kyerion Printup. Elizabeth 

Beardsley, Pamela Davidson, and Mehrzad Nadji also made important 

contributions. 

19PCE is perchloroethylene, which is a manufactured chemical used for dry cleaning and 

metal degreasing. Potential health effects from exposure to PCE include dizziness, 

headaches, sleepiness, confusion, nausea, difficulty in speaking and walking, loss of 

consciousness, and death. 

Page 14 GA0-10-857T Superfund 
40 

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42 

Question from 

Environment and Public Works Committee Hearing 

June 22, 2010 

Follow-Up Questions ror Written Submission 

Senator James M. Inhofe: 

If the Superfund tax were re-imposed on U.S. manufacturers, as the EPA has proposed, is it 

correct that the burden would fall upon goods, made from certain chemicals that are produced in 

the U.S.? And is it correct that, although imported products subject to the tax would pay the tax, 

imported finished products would not bear the tax because the taxable products are already 

incorporated into products? Do you agree, then, that products imported into the U.S. would be 

less expensive to produce and would have a market advantage? What do you think the effect 

would be on U.S.jobs? 

GAO's Response: 

GAO has not assessed the potential impacts of any proposals to either reinstate the Superfund tax 

that expired in 1995 or to impose a new tax that may be structured differently. Therefore, GAO 

cannot address the effects that any of these tax proposals might have on the costs to produce 

imported products, whether these products would have a market advantage, or the potential 

effects on U.S. jobs. 
43 

Senator LAUTENBERG. Thank you very much. 

Mr. Stephenson, at the end of your remarks you talked about the 

kind of delays et cetera that would result if we do not have a more, 

a larger fund available. If we do not provide more resources for 

EPA, how long might it take to clean up all of the currently listed 

Superfund sites, despite the fact that a lot more are expected in the 

next 5 years? Just look at the present list. How long might it take 

to clean them up if all the resources that we have are those that 

we have allocated annually for the last few years? 

Mr. STEPHENSON. It will be decades. But it is impossible to really 

determine because of a number of uncertainties. As Senator Inhofe 

mentioned 70 percent of the funds come from responsible parties 

to clean up sites. There is no way of estimating how that will play 

out in the future. 

Senator LAUTENBERG. Well, the obvious is the question, where 

does the funding for the clean up come from now? 

Mr. STEPHENSON. Right now it comes almost exclusively from appropriations each year, so it is dependent upon you, the Congress, 

to provide the money for the clean ups. 

Senator LAUTENBERG. The taxpayers. 

Mr. STEPHENSON. We did some analysis of completed sites, and 

you can see that the completed sites peaked while the Superfund 

was in place and has dwindled since then. 

Senator LAUTENBERG. But it is the taxpayers’ responsibility if we 

do not have the polluters paying for what they have done. If the 

polluters are gone, as many of them are, sites orphaned, who pays 

for it? You and me and the rest of the people sitting in this room 

and across the country. Is that correct? 

Mr. STEPHENSON. That is the case today. 

Senator LAUTENBERG. Thank you. 

GAO found 75 Superfund sites with unacceptable human exposure. EPA regional officials expect unacceptable human exposure to 

continue between, beyond 2015 for 41 of these sites. If we reinstated the Superfund Polluter Pays Fee to help get at those sites, 

what might it do to get them done quicker? Is it a question, what 

is the thing that delays cleaning up these sites? 

Mr. Stanislaus. 

Mr. STANISLAUS. There are a number of sites where human exposure is not under control. Let me first set forth that those sites 

that have imminent risk, that is acute risk, we address through a 

separate program. It is called the Removal Program. So, what is at 

imminent risk of acute exposure we address that through the Removal Program. Where you have longer term risk, we address that 

through the Remedial Program. So, of those sites, there is a subset—— 

Senator LAUTENBERG. I do not mean to cut you off, but we have 

time constraints. Could reinstating the Superfund Polluter Pays 

Fee, would it help to get these sites cleaned up faster? If we had 

more resources? 

Mr. STANISLAUS. Well, reinstating the Superfund tax would provide a dedicated source of dollars for the Congress to appropriate 

funds. So, it is a combination of a dedicated source of money and 

an increase in appropriations from the Trust Fund. 
44 

Senator LAUTENBERG. Mr. Stephenson, would more resource help 

get these sites cleaned up faster? Does a lack of resource mean 

anything in terms of the pace of clean up? 

Mr. STEPHENSON. Of course it does. Let me say that these 75 are 

NPL sites, and that is EPA’s designation that they pose an unacceptable human risk. The site coordinators that we talked to who 

know each of these sites are the ones that told us that the resource 

need to clean up these sites quicker is 2 to 2.5 times what they currently have. So, whether the sources come from responsible parties 

or from taxes or from appropriations, more money would result in 

cleaning them up faster as was evidenced by the Recovery Act—— 

Senator LAUTENBERG. These sites grow ever more dangerous. 

Mr. STEPHENSON. Well, they still pose a risk. I do not know 

whether they increase in danger, but if they are not cleaned up 

people are exposed to the contamination for longer than—— 

Senator LAUTENBERG. So, to me, that is the danger. 

Mr. Stanislaus, GAO’s report finds that EPA does not take vapor 

intrusion into account in determining whether a site should be listed for Federal clean up. GAO said some seriously contaminated 

hazardous waste sites with unacceptable human exposure may not 

otherwise be cleaned up. When will we get a plan to this Committee to address this shortcoming? 

Mr. STANISLAUS. Well, we are currently evaluating the inclusion 

of vapor intrusion in the hazardous ranking system as part of the 

Integrated Cleanup Initiative. Separately we do in fact currently 

include in our clean up activities the addressment of vapor intrusion. So, it is true that it is not currently a factor for listing on the 

NPL, but once a site is listed we do in fact address vapor intrusion 

in the site clean up. 

Senator LAUTENBERG. So, vapor intrusion is a serious factor as 

we look at these—— 

Mr. STANISLAUS. Absolutely. 

Senator LAUTENBERG. Senator Inhofe. 

Senator INHOFE. OK, let me just restate again—and again if necessary—the polluter is paying now. It is not a matter of the polluter has to pay. The polluter is paying. Now, there is one recent 

exception to that, and that is one that I think, I do not know how 

my colleagues voted on the $700 billion bailout, I voted against it, 

I suspect that they voted for it—— 

Senator LAUTENBERG. I was glad I voted for it. It turned the 

economy around. 

Senator INHOFE. OK, I need a little more time if that is going 

to—— 

[Laughter.] 

Senator INHOFE. Two of the bailouts were General Motors and 

Chrysler. Now, the way this was structured, they were turned into 

two, kind of an old corporation and a new corporate entity. Under 

the new corporate entity they did not have any assets from the old 

corporate entity. The old corporate entity was responsible for problems, clean up problems. And they, however, since they passed that 

sweetheart deal they no longer are forced to pay for the pollution 

that they caused. That is the only exception that I know of. Can 

either of you think of another exception where the polluter has just 

not paid and had the assets to pay and could be found? 
45 

Mr. STANISLAUS. There are a number of circumstances where a 

responsible party does not have adequate resources—— 

Senator INHOFE. I understand. I said has the ability to pay and 

can be found. 

Mr. STANISLAUS. Well, I mean there are cases where PRPs, it is 

difficult to get some PRPs to settle with the EPA, and where that 

circumstance arises and there is no other recourse EPA does in fact 

move forward—— 

Senator INHOFE. Well, it is obvious if you want to raise taxes on 

people to do it, you can go out and tax anyone. The tax you are 

charging here, I say to my friend the Chairman, is a tax on corporations, on businesses. It could be a tax on churches; that would 

also provide revenue if you wanted to go that way, to do it. I am 

just trying to think of the justification, because I have not heard 

it yet, on why you go out and pass taxes on corporations that had 

nothing to do with any type of a spill. 

Let me ask you something, I ask my good friend on the GAO, because you heard my example of Bossier City. Do you remember 

that case by chance? 

Mr. STEPHENSON. I do not. 

Senator INHOFE. OK. Would you do me a favor, just for the 

record, go back and research that because I am going from memory 

now. But sitting right here in the chair where I am sitting, although Republicans where a majority at that time so I was Chairman of this Committee, I remember that was the typical case in 

Louisiana where everybody, the parishes, the States, the responsible parties, all wanted to do it, and they were going to do it for 

X dollars. Now, I would like for you to fill in that X for me by going 

back and researching that. And then, also, it would have taken less 

time. 

I guess what I am saying to you, my friend from the GAO, is 

maybe that is another area we should be looking at to make sure 

that we get people, we do, we clean these up effectively and do so 

in the most efficient manner. In that case, if there are many others 

like that, that would be a lot of money, an awful lot of money. Is 

that worth looking at? 

Mr. STEPHENSON. It is. I agree that right now the resources that 

are available are spread very thin in the effort to make States 

happy and the site clean up folks happy, but that it not an efficient 

way to do this. 

Senator INHOFE. Yes. Well, let me ask you another question. If 

we have a tax on chemical companies, regardless of whether or not 

there is any problem with polluting and all that, and that tax 

would go into the products, that would raise the, obviously raise 

the price of those products. However, if you had imported the same 

products from another country that would be a finished product, so 

they would not have been subjected to that. Would that not mean 

that we are actually putting our manufacturers at a competitive 

disadvantage from those under that particular scenario? 

Mr. STEPHENSON. Well, as I understand it, the tax is subject to 

imports as well. 

Senator INHOFE. Subject to imports on the raw materials. I am 

talking about finished products. 
46 

Mr. STEPHENSON. Yes, well, the third component of the Superfund tax is a general corporate tax. 

Senator INHOFE. Yes, sir. 

Mr. STEPHENSON. Well, we have not studied that. 

Senator INHOFE. Well, this concerns me. We are talking about 

tax, as I understand it, 9.7 cents per barrel, 22 cents, I am not sure 

how that is calculated, on chemicals, and then a corporate tax of 

.12 percent. It is still a tax increase, and there is no relationship 

between the tax increase, the person on whom this tax is levied, 

and on any type of pollution or any type of a damage that was incurred by that party. I mean, there is not a relationship between 

the person, that entity that is being taxed, and any type of problem 

that they have created. 

Mr. STEPHENSON. Well, the Trust Fund is a form of financial assurance for an industry—— 

Senator INHOFE. Yes, I understand that. 

Mr. STEPHENSON. To try to provide a funding source, a steady, 

routine funding source to clean up, similar to the Underground 

Storage Tank Trust Fund where it is taxed based on .1 cent per 

gallon. That is a fund that exists to clean up old gas stations that 

have been abandoned. So, the principle is sort of the same for any 

trust fund. 

Senator INHOFE. Yes, I know. We have talked about this for a 

long period of time. In fact it has been proposed that I know of now 

for about 10 years, and where you might be successful in this particular political atmosphere in getting this tax increase, it seems 

like it is pretty easy to increase taxes nowadays, but perhaps that 

will just be a temporary one. 

Thank you, Mr. Chairman. 

Senator LAUTENBERG. Senator Baucus. 

Senator BAUCUS. Thank you, Mr. Chairman. 

I would just like to confirm, frankly, Mr. Stanislaus, the Agency’s 

policy with respect to certain sites in Libby, Montana. As I understand it, there are either 8 or 10 total, 8 total, 2 of which are industrial, the rest are residential. The question is, I want to establish 

and make certain that the Agency has no plans to move forward 

with a record of decision, either interim or final, prior to the full 

completion of risk assessment and toxicity studies at Libby. Can 

you confirm that? 

Mr. STANISLAUS. Well, just to be clear, there are different operable units in Libby. There are a number of operable units that are 

depending upon the toxicity studies. There are the first operable 

units that are not dependent upon the toxicity studies, and the reason is because a risk assessment was performed, and the first operable units will create a barrier to prevent any exposure. So, that 

is why we believe that we can move forward and to protect residents as quickly as possible in Operable Units 1 and 2 because it 

is not dependent on the toxicity study. 

The toxicity study, what that will inform is the level of exposure 

that is appropriate and make a decision for some of the commercial 

properties. But that is not necessary for Operable Units 1 and 2. 

That is why EPA has recommended Operable Units 1 and 2 to 

move forward, and again Operable Units 1 and 2 is to create a barrier to prevent exposure. 
47 

Senator BAUCUS. All right. But what if the toxicity studies show 

that the clean up should be at a higher level, a higher standard, 

than a record of decision might otherwise provide? 

Mr. STANISLAUS. The toxicity studies will not really inform Operable Units 1 and 2 because even if the toxicity studies show there 

should be a greater level of protection, that would inform the other 

operable units. The reason that it will not inform Operable Units 

1 and 2 is because Operable Units 1 and 2 the proposed remedy 

is to prevent or create a barrier between the asbestos and potential 

exposure. 

Senator BAUCUS. Could you explain that? What is the barrier? 

Mr. STANISLAUS. It is basically a clean barrier. You create a soil 

barrier between where the asbestos is contained and any potential 

for exposure. This is used around the country as a technique to 

prevent exposure. 

Senator BAUCUS. I just want to just confirm that where record 

decisions are appropriate that the Agency not proceed until toxicity 

studies are complete. 

Mr. STANISLAUS. Yes. I mean, for those operable units where toxicity study will be dependent on those decisions, absolutely. But 

those operable units where we do not believe it is dependent on it, 

we believe in order to move forward and protect people in the 

shorter term that we should move forward on those operable units. 

Senator BAUCUS. Do you commit not to implement a record decision for residential operable units until a risk assessment is done? 

Mr. STANISLAUS. Yes. Based on our science and the risk assessment we believe that the most scientifically sound decision on Operable Units 1 and 2 was to actually move forward on 1 and 2, 

which will again create a barrier to prevent exposure. And the toxicity studies, again, will not affect that decision. It will affect other 

operable units. 

Senator BAUCUS. All right. 

Another subject is protecting the kids, the children of Libby. 

There is a school there. It has got lots of asbestos in it, and I am 

just asking whether the Agency will commit to a cumulative effects 

study on child, on childhood exposure in evaluating your risk assessment. 

Mr. STANISLAUS. In the Libby specific risk assessment? 

Senator BAUCUS. Yes, in Libby. 

Mr. STANISLAUS. There are ongoing risk assessment studies, and 

let me commit to go back, and I believe that is a sub-component 

of that study. But I will commit to go back and look at the components of that study. 

Senator BAUCUS. Would you, please? Because clearly kids are 

more vulnerable, and it is just that much more important to make 

sure that there is a cumulative effects study at Libby. It is at the 

school, I have toured the school, and it needs help. So, I just, we 

are trying all we can to make sure that, Libby is my thing, to make 

sure Libby is protected. Thank you. 

By the way, do you have a photograph of Les, Mr. Skramstad? 

Mr. STANISLAUS. I do not. But I will take it. 

Senator BAUCUS. OK. I will get you a photograph of Les 

Skramstad. 

Mr. STANISLAUS. OK. 
48 

Senator BAUCUS. I just ask you to consider putting it on your 

desk in your office. 

Thank you very much. 

Senator INHOFE. Mr. Stanislaus, I was distracted when you made 

a reference to Tar Creek. Did you say you made a visit there? 

Mr. STANISLAUS. Yes, sir. 

Senator INHOFE. To the Picher-Cardin area? 

Mr. STANISLAUS. Yes. 

Senator INHOFE. You know, that is really a marvel of how things 

can be done right. That was a devastating site and to look at it and 

to consider that we had been trying to do something, or they had 

been, I was not here then, for 30 years, and they had never done 

any mapping under the ground, and now it appears that if we had 

not gotten in when we did, several structures, such as an elementary school house, could very well have dropped down, killing every 

child that was in there at that time. 

I mean, it was, and I like to get on record whenever I can, to 

compliment everyone who is involved in it. Of course the EPA was, 

the Department of the Interior was, the Department of Justice was, 

and the Corps of Engineers and others. But that was, I think you 

can kind of hold that up as model of the way things should happen. 

Great job. 

Mr. STANISLAUS. Thank you. 

Senator LAUTENBERG. Yes. Thanks for that confirmation, Senator 

Inhofe. Senator Inhofe is a very skilled Senator, and while we disagree, his arguments for things as he sees them are cogent, put together in a view that differs from mine obviously, but are respectfully noted. 

Who did the clean up at the, what’s that name? 

Senator INHOFE. Tar Creek. 

Senator LAUTENBERG. Tar Creek. Who did that clean up? 

Mr. STANISLAUS. That was a Federal-led clean up. 

Senator LAUTENBERG. Hooray for the Federal Government. 

Senator INHOFE. It did an excellent job. 

Senator LAUTENBERG. And it was a, well, I am pleased to hear 

it. But also, Senator Inhofe, I note with some understanding as to 

what the risks were had that not been cleaned up, and therefore 

I hope that as time goes by, I hope to persuade you that we ought 

to do the same thing all over this country of ours and move things 

along. 

Senator INHOFE. Let me make one other comment about that, 

Mr. Chairman. The, since there is a record being made of this, of 

this meeting, that there are two other parties were a part to this 

too, the University of Oklahoma and the State of Oklahoma. And 

it was put together, really, by the Governor, who happens to be 

Democrat, and myself. And it is a very successful program. 

So, it is a three part program. You had your Federal, that was 

the EPA; State, the State of Oklahoma; and then, of course, the 

University of Oklahoma provided some of the engineering leadership. 

Senator LAUTENBERG. The public is not here to listen to our debate, but the fact of the matter is that I cannot imagine any site 

that is cleaned up that does not have its State Department of Environmental Protection, or whatever it is called, participating in that. 
49 

We, unfortunately, in New Jersey are the recipients of the largest 

number of sites across the country, over 112 sites, a salute, unfortunately in reverse, to our industrial past. 

I am not sure I understood the response from either of you when 

we talk about more resources. How many sites were we cleaning 

up when we had the funds, the Fund itself, fairly robust, where it 

was up to $5 billion at one point? Am I correct? 

Mr. STANISLAUS. The total of the Trust Fund itself? 

Senator LAUTENBERG. Yes. 

Mr. STANISLAUS. I do not have that number in front of me. 

Senator LAUTENBERG. All right. Well, I can tell you. It was $5 

billion. I am surprised that neither one of you knows that. But the 

fact of the matter is that when we had more money, by God we 

cleaned up more sites. Is that correct? 

Mr. STANISLAUS. If you have more money—— 

Senator LAUTENBERG. How many sites did we clean up in those 

days? 

Mr. STANISLAUS. From 1992 to 2000, we averaged about 80 sites 

per year. 

Senator LAUTENBERG. And how many are we doing now? 

Mr. STANISLAUS. We did 19 last year. 

Senator LAUTENBERG. Well, if that does not tell you something 

about the exposure that we are willing to let people have who unfortunately live near these Superfund sites. If you see that I am aggravated, you are right. The fact of the matter is that the biggest 

concern for our Government has to be how we take care of the children, the future generations. And to let them languish around 

Superfund sites and not be exercised by the fact that we do not 

have enough money to do this. If we look at the Administration’s request, they ask for $1.29 billion for the program, a decline from previous years after adjusting 

for inflation. And I remind my colleague here, he is an intelligent 

fellow, the fact is that very often corporations, and I ran a very 

large one, the company I ran today has 46,000 employees, a company we started, three of us, ADP, and we all paid taxes for various services that the Government supplies including FAA and 

highways and you name it. The money that I pay, we pay, the corporations pay, goes to those programs. And if it is a program that 

affects national health, by God, whether it is confined to a community here or there, we ought to be paying for it by the polluter. And 

what happens? 

The questions that Senator Inhofe was asking you I thought, 

very frankly, were evaded in terms of the answer. There is something called an orphan site where it says there is no one around 

who has the direct responsibility for the pollution. And so it is an 

orphan site, and therefore we all have to kick in for the well being 

of many thousands, and maybe more, of our citizens. 

Just as a reminder, and I know that you are aware of this, I do 

not know whether you are suggesting that as a corporation was reforming, reincorporating, it certainly could not have been to escape 

liability, but you cannot escape liability under the process of an obligation like that and leave the obligation behind. 

Senator INHOFE. No, I was referring to the bailout. The source 

of that was the $700 billion bailout. But it was General Motors and 
50 

Chrysler. In that case, they divided them into two corporations, the 

past corporation and a current corporation. The new corporation 

would not be subjected to the types of, the penalties or to clean up, 

because they did not accept any of the obligations and liabilities of 

the old corporation. 

So, it should not been done that way, but it was done that way. 

I was only pointing that out as the only example I know of where 

the polluter has not paid if he has the resources and you can find 

him. 

Senator LAUTENBERG. Yes. But General Motors and the other 

companies were not responsible for killing or maiming children, or 

pediatric cancers or other diseases that befell their past behavior 

because otherwise there would have been no TARP, no recovery, 

and no jobs. 

I thank you very much for your testimony and for your answers. 

We will keep the record open, and I would expect a relatively 

speedy return on any questions that are submitted in writing. 

Thank you. 

Next panel, please. 

Ms. Gibbs, Lois Gibbs, long time advocate for cleaning up dangerous sites, known as the Mother of Superfund for work in uncovering toxic exposures in Love Canal, New York. Helene Pierson, 

Executive Director of Heart of Camden, a non-profit community development in the State of New Jersey. This is a relatively poverty 

stricken—no, not relatively, it is a poverty stricken community, and 

they need guidance and support to make their citizens more comfortable in their existence and their families. Dr. Porter, Dr. Winston Porter, President of The Waste Policy Center and former EPA 

Assistant Administrator for Solid Waste and Emergency Response. 

Your hairstyle has changed. It has gotten grayer; mine has disappeared. And Dr. John Stumbo, Mayor of Fort Valley, Georgia. 

We welcome all of you here, and we invite Ms. Gibbs to begin 

your testimony at this point. 

STATEMENT OF LOIS MARIE GIBBS, EXECUTIVE DIRECTOR, 

CENTER FOR HEALTH, ENVIRONMENT AND JUSTICE 

Ms. GIBBS. I want to thank you and the members of the Committee for inviting me here. My name is Lois Gibbs, and I am Executive Director for the Center for Health, Environment and Justice. 

It is a national organization that has worked with over 10,000 community groups faced with environmental health threats over the 

past 30 years. I also was a resident and community leader at Love 

Canal in Niagara Falls, New York. 

And as I began preparing my testimony for this afternoon it occurred to me that 31 years ago I spoke to a congressional Committee just like this, at a table just like this, asking for funding designed for the assessment and the clean up of hazardous waste 

sites. My community at Love Canal in Niagara Falls, New York, 

was in part the impetus for creating the Superfund program after 

20,000 tons of chemicals buried in the middle of my neighborhood 

leaked into the surrounding yards and the school playground. 

I spoke then about the need of the program because at Love 

Canal 56 percent of our children were born with birth defects, and 
51 

my daughter and my son were home at the time with liver, urinary, and central nervous system diseases. 

Another speaker at that same hearing was Jim McCarthy from 

Jackson Township, New Jersey. And Jim, with tears running down 

his face, shared his story with the Committee. He explained that 

the water his family used every day was contaminated. Jim then 

told the Committee how his 9-year-old daughter died from a kidney 

disease that he believed was a result of her drinking and bathing 

in that contaminated water. 

It is tragic that now, three decades later, while the same crisis 

exists within hundreds of communities or thousands of communities probably, I have been asked again to speak to the need of 

an adequate Superfund program. 

Over the past 30 years Superfund has had its successes and failures. And I believe there were many more successes than failures 

when the program was adequately funded and the polluter pay fees 

were in place. There is no question about the need for the Superfund program and the need to have reliable, adequate funding in 

place to protect the American people and their communities. 

Let me explain to you what it is like to live in a community that 

is a Superfund community. And I will give you the example, you 

actually have a copy of this, a pretty colored copy of this, in your 

copy of my testimony. This is Behr Dayton Thermal Products. It is 

a manufacturing plant located in Dayton, Ohio. This facility made 

vehicle air conditioning and engine cooling systems. The Chrysler 

Corporation, now in bankruptcy, owned and operated this facility 

from 1937 until April 2002. 

The groundwater beneath this plant was tested in 2003 and 

found to be contaminated with volatile organic compounds including the solvent trichloroethylene or TCE. Polluted groundwater 

from beneath the plant has migrated underground into residential, 

commercial, and industrial areas. 

More testing happened in October and November 2006, and the 

EPA, at that time the Ohio EPA, asked U.S. EPA Region 5 Superfund Division to come in and help. And what they said, and I quote 

this, TCE concentrations in soil gases were as high as 160,000 

parts per billion, and the U.S. samples of TCE showed concentrations of 62,000 parts per billion, and they were as high as 3,900 

parts per billion beneath the residential area. 

Now, ATSDR says exposure to this chemical, the safe level, is .4 

parts per billion, and the action level is 100 parts per billion. They 

also go on to say that breathing small amounts may cause headaches, lung irritation, dizziness, poor coordination, and difficulty 

concentrating. Breathing large amounts can impair your heart 

function, cause unconsciousness and death. The diseases in this 

community are related, the cancer is increased related to TCE exposure. 

People in this community remain in their homes as TCE vapors 

evaporate from the ground and are going into their homes. They 

put a vapor intrusion pipe up the side of their houses to take it 

from beneath their homes and into the ambient air. 

This community is a typical Superfund community. Families are 

told that their vented homes are safe. However, parents worry 

about the safety of their children sitting in the grass in their back-
52 

yard breathing the chemicals as they evaporate from the soil on a 

hot summer day like today. 

The neighborhood school was closed, and the children were transferred to another school outside the plume. ATSDR reviewed the 

cancer incidence and found it to be high. Residents asked ATSDR 

what does this mean for my family, and nobody can tell them. 

These hardworking American families’ homes are worthless. 

They cannot sell them, they cannot improve them, they cannot 

abandon them, and they do not feel like they can live in them. No 

bank will give the families a loan against their homes, so their 

families cannot fix the roof, improve the property, or even use the 

equity from their homes to send their children to college. Property 

values have already dropped 50 percent. 

These are not people looking for a free ride or a handout. They 

are hardworking, churchgoing American families. They have been 

victimized by no fault of their own. This is not the way our country 

should treat its citizens. 

For 30 years I have urged, begged, pleaded with Congress to take 

care of these innocent families who have fallen victim to corporate 

negligence and carelessness. As you continue to discuss the Superfund program please remember the people, their dreams, their 

hopes for their families to be able to reach their potential. 

Restore the polluter pays fees so that there is a reliable source 

of funding to provide the necessary assistance to protect the innocent American people. 

Thank you. 

[The prepared statement of Ms. Gibbs follows:] 
53 

Senate Committee on Environment and Public Works 

Subcommittee on Superfund, Toxics and Environment 

Oversight of the Environment Protection Agency's Superfund Program 

Testimony by Lois Marie Gibbs 

I want to thank the members ofthe Senate Committee on Environment and Public Works for 

inviting me here to speak about a program that is very near and dear to me. My name is Lois 

Gibbs and I am the Executive Director of the Center for Health, Environment & Justice a 

national organization that has worked with over I 0,000 grassroots groups faced with an 

environmental health threat over the past 30 years. I was also a resident and community leader at 

Love Canal in Niagara Falls, NY. 

As I began to prepare my testimony for this afternoon, it occurred to me that 31 years ago I 

spoke to a congressional committee, at a similar table, about the need for funding a program 

designed for the assessment and cleanup of hazardous waste sites. My community at Love Canal 

in Niagara Falls, NY was in part the impetus for creating the Superfund program after 20,000 

tons of chemicals buried in the middle of my neighborhood leaked into surrounding yards and a 

school playground. I spoke then about how at Love Canal 56% of our children were born with 

birth defects and how my daughter and son were home sick with liver, urinary and central 

nervous system diseases. 

Another speaker at that hearing was Jim McCarthy from Jackson Township, New Jersey. With 

tears running down his face, Jim shared his story. He explained that the water his family used 

every day was contaminated. Jim then told the committee how his 9 year old daughter died from 

a kidney disease that he believed was the result of her drinking and bathing in that contaminated 

water. 

Thirty years ago, soon after the federal government agreed to temporarily relocate all 900 Love 

Canal families, I spoke before another committee about the details that should be included in 

what soon became the Superfund program. 

It is tragic now three decades later, while the same crisis exists within hundreds of American 

commnnities, I have been asked once again to speak to the need for an adequate Superfund 

program. Over the past thirty years, Superfund has had its successes and failures. I believe there 

were many more successes than failures when the program was adequately funded and the 

polluter pay fees were in place. There is no question about the need for the Superfund program, 
54 

and the need to have reliable adequate funding in place to protect the American people and their 

communities. 

Today with limited funds and uncertainty about the level of next year's funding, the Superfund 

program is constrained. And, as we come to understand the new science around environmental 

chemical exposures and their impacts on human health, especially children, our country needs a 

robust cleanup program to protect families from exposures. 

Let me explain to you what one community is living with today, while we all sit in this room 

and discuss the depth of this problem. Often it is the citizens of this great country who get lost in 

the discussions of resource allocations and control of federal programs. 

Living in a Superfund community which there has been limited abatement and no clear 

commitments for how the area will ever be livable again is a nightmare. 

Here's an example of a typical Superfund community. 

The Behr Dayton Thermal Products is a manufacturing plant located in Dayton, Ohio. This 

facility made vehicle air conditioning and engine-cooling systems. Chrysler Corporation (now in 

bankruptcy) owned and operated this facility from about 1937 until April of2002. 

The ground water beneath this plant was tested in 2003 and found to be contaminated with 

volatile organic compounds, including the solvent trichloroethylene, or TCE. Polluted ground 

water from beneath the plant has migrated underground into residential, commercial and 

industrial areas. 

In October and November of2006, the Ohio EPA and the US EPA installed soil gas probes to 

evaluate the potential risk posed by vapor intrusion from the polluted groundwater below. That 

November, the Ohio EPA asked the USEP A Region 5, Superfund Division, Emergency 

Response Branch for help stating in a letter: 

"TCE concentrations in soil gas were as high as 160,000 parts per billion by volume. U.S. EPA 

samples collected contained TCE at concentrations up to 62,000 parts per billion by volume and 

were as high as 3,900 parts per billion beneath the residential area." 

The Agency for Toxic Substance & Disease Registry (ATSDR) residential indoor air screening 

level for TCE is 0.4 parts per billion (ppb) and the action level is 100 ppb. ATSDR's published 

TCE human health impacts include: 

• Breathing small amounts may cause headaches, lung irritation, dizziness, poor 

coordination, and difficulty concentrating. 
55 

• Breathing large amounts of trichloroethylene may cause impaired heart function, 

unconsciousness, and death. Breathing it for long periods may cause nerve, kidney, and 

liver damage. 

• The International Agency for Research on Cancer (!ARC) has determined that 

trichloroethylene is "probably carcinogenic to humans." 

By September 2008 (five years after discovery), the US EPA had completed the installation of a 

vapor abatement mitigation systems for block vapor intrusion from entering 250 homes. 

People remain in their homes today as the TCE vapors evaporating from groundwater are 

captured from beneath their homes and vented into the open air that they breathe. Sounds bad 

but that's only half the story. 

In this community everyday Americans have placed every penny they have in their homes. They 

work hard, pay their taxes, go to church, stay out of trouble and believed, as I did at Love Canal, 

that they can achieve the American dream. 

Then without their consent or knowledge they find that their property is contaminated with the 

dangerous toxic chemical TCE. Their family's health is placed at significant risk. The 250 

homes in this community have a ventilation pipe running from the ground to the roof. The 

neighbors, who don't have a pipe, wonder every day when the chemicals will reach their home. 

All the testing that has been concludes that the chemicals are continuing to move through the 

neighborhood. 

Families are told that their vented homes are safe. However, parents are worried about the safety 

of their children sitting in the grass in their backyard breathing the chemicals as they evaporate 

from the soil on hot summer days. 

The neighborhood school closed and children were transferred to another school outside of the 

toxic plume area. 

ATSDR reviewed the cancer incidence in the area and found that cancers related to TCE were 

higher than expected. Residents worry and ask, "What does that mean for my family?" No one 

can tell them. 

These hard working American families' homes are worthless. They can't sell them, can't 

improve them, they can't abandoned them, don't feel safe living in them. 

No bank will give families a loan against their homes. So families cannot fix the roof, improve 

their property or even use the equity from their home to send their children to college. Property 

values have already dropped 50%. 
56 

Consequently, the neighborhood begins to spiral downward. Soon the homes will deteriorate 

and so will the neighborhood. No one will move in, no one can move out and economic 

development comes to a screeching halt. 

These are not people looking for a free ride, or a hand-out; they are hard working, church going 

American families; they are victimized by no fault of their own. 

This is not the way our country should treat its citizens. For 30 years I have urged, begged and 

pleaded with Congress to take care of the innocent families' who have fallen victim to corporate 

negligence and carelessness. As you continue to discuss the Superfund program please, 

remember the people, their dreams, and their hopes for their families to be able to reach their 

potential. Restore the polluter pay fees so that there is a reliable source of funding to provide the 

necessary assistance to protect innocent American families. 

Lois Marie Gibbs 

Executive Director 

Center for Health, Environment & Justice 

P.O. box 6806, Falls Church, VA 22046 

703-237-2249 

Attached: 

The Eye of The Storm Report on Superfund 

Plume Map Behr Dayton Thermal Products 
57 
58 

September lS, 2010 

Heather Majors 

Majority Staff 

U.S. Senate Environment and Public Works Committee 

410 Dirksen Senate Office Building 

Washington, DC 20510 

Dear Ms. Majors: 

Below is my response to Senator Barbara Boxer Follow up Questions 

1.) Ms. Gibbs, could you please describe the Importance that communities place on having a strong 

federal role in ensuring that cleanups occur quickly and thoroughly at Superfund sites? 

For communities it is critical to have a strong federal role in ensuring that cleanups occur quickly and 

thoroughly at Superfund sites. Communities depend on the federal Superfund program to protect their 

families and their communities from toxic chemical exposures. In many If not most cases the state and 

local government cannot provide the funds needed for a thorough cleanup. The potential responsible 

parties will take years before the courts decided who is responsible for what and at abandoned sites 

there is no other alternatives for adequate funds. If sites are not properly cleaned up public health, 

especially for children the most vulnerable, is placed at risk of disease, cancers or learning disabilities. 

Additionally, the community as a whole will spiral downward economically. An uncontrolled superfund 

sites will discourage corporations from located there. Because of a superfund site location property 

owners cannot obtain loans on their property, banks are concerned about property values. Without the 

ability to obtain home Improvement loans, people cannot fix broken roofs or other problems. The 

homes deteriorate, the community deteriorates. Property value is key to American families who need 

funds to send their children to college. 

A thorough clean up avoids all of these negative impacts and provides opportunities for community 

improvement that will attract businesses and protect the family's, the children's health. Superfund 

comes from love Canal and I can tell you first hand that it is unimaginably difficult to sit in the hospital 

with my three year old having a bone marrow test for leukemia and listen to the local, state and federal 

agencies all saying they don't have the money to protect our families. A strong Superfund is the answer 

to protect American families. 
59 

2.) Ms. Gibbs, in your view, what are the most serious Impacts of the federal government's limited 

ability to provide adequate funds to clean up toxic waste sites In communities? 

Superfund Is funded through taxpayers' dollars for abandoned sites and those dollars don't even come 

close to what Is needed to protect American families near toxic sites. Consequently, sites are not 

adequately cleaned up leaving behind uncontrolled releases of dangerous toxic chemicals. Communities 

around these sites are suffering adverse health impacts from exposures to these chemicals and suffering 

from an economic downturn. 

Stable and equitable funding is long overdue for this critically important pollution prevention program. 

The lack of funds In Superfund due to the industry fees not being reauthorized has created a program 

that's totally impotent. It's disingenuous to pretend a program exists without the funding to address the 

problems that are still out there. Sites that should be on the NPL are not, simply because the agency 

doesn't want to expand the list. Children in such communities future is altered forever, through disease 

or disabilities. The parents and children's hopes, their dreams are often destroyed because our 

government will not provide adequate funding to protect them from harm. 
60 

Senator LAUTENBERG. Thank you. Out of order. Was Senator 

Moynihan in one of these seats when you testified? 

Ms. GIBBS. Senator Moynihan was, as was Senator Gore, or Congressman Gore. I think he was a Congressman at the time. 

Senator LAUTENBERG. Thank you. 

Ms. Pierson. 

STATEMENT OF HELENE M. PIERSON, EXECUTIVE DIRECTOR, 

THE HEART OF CAMDEN, INC. 

Ms. PIERSON. Good afternoon. Thank you for the opportunity to 

speak to your Committee. And thank you, Senator Lautenberg, for 

your long service to the State of New Jersey’s constituents. 

My name is Helene Pierson, and I am the Executive Director of 

The Heart of Camden, Inc., a first-time testifier. I am with a nonprofit community development corporation dedicated to improving 

the quality of life in an old, formerly booming industrial neighborhood called Waterfront South in Camden, New Jersey. 

The industrial boom left many environmental hazards behind 

after the decline and eventual shut down of a variety of industries 

in our neighborhood. In Waterfront South, we have two active 

Superfund clean up sites. They are known as the Welsbach Gas 

Mantle site and the Martin Aaronsite. One is to our north, and one 

is to our south. In addition we have 26 other known contaminated 

sites in a 1-mile area that fall below the standard of the Superfund 

criteria. 

I am here today not from a scientific perspective, not from a time 

nor money perspective, as I certainly have been around debates 

over best clean up practices, I certainly feel like clean ups take too 

long, missing entire generations of people growing up near clean up 

sites, and certainly take much money. What I am here for is to say 

that clean ups should not stop and should not slow down. 

And I am here to say that from the perspective of working in an 

urban city environment there is much clean up needed and many 

people living near clean up areas. And that will not change. 

Our overriding mantra for our neighborhood is that we are part 

of America. There is money and there is capacity here in America 

to ensure that no one is living in substandard conditions. We all 

need to work hard to get the money and the capacity in the right 

place to ensure the balance. 

We have worked closely at times with the professionals assigned 

to both clean ups, both U.S. Environmental Protection Agency employees and their consultants. From our experience the process has 

been transparent, professional, and careful. 

But I will say to an oversight committee that from a neighborhood perspective, and this is a recommendation for more than just 

the Superfund process, please focus the oversight on examining the 

length of time, problems, or inefficiencies during the phases where 

no actual clean up is taking place. There is nothing more exciting 

than when actual clean up work is occurring. After all, is that not 

the point? 

Government intervention too often becomes more about the jobs 

that it creates and maintaining their need versus the original intent for which the jobs were created. And I will say, Senator Lautenberg, to your earlier questions, that I often see the EPA waiting 
61 

to see, slowing down, because they are not sure if more money is 

coming. And that does not help. 

Julian, Dayonnie, Octavia and Arties, to put some children’s 

names to the point, are part of Waterfront South’s current generation of children that have a right to improved conditions. Most certainly being born into a lower income family has challenges of its 

own. They do not need the Government to fail them. 

My understanding of this Committee is that it is to examine the 

EPA’s progress in cleaning up Superfund sites and its effects on 

the economy, the environment, and public health. The work is not 

done. Examining this system, and all systems, is prudent and constantly required. 

But if there is anything that I came for today, it is to urge you 

not to stop the work when there are places like my neighborhood 

where the most exciting part, actual clean up, is taking place, finally. 

From our close proximity to the issue we think that Superfund 

is working more than any other local or State vehicle. Included in 

your brief are some suggestions for specific opportunities for improvement for Superfund, including is the EPA ranking clean up 

priorities in a manner that is most protective of public health? 

That is, are they making Superfund sites that are in close proximity to residential communities the very highest priorities? 

In addition, given our 26 other contaminated sites, you know, we 

want to add more to the list when we do not have money to clean 

up what is there. Can something be created along the lines of a 

Superfund junior program, or perhaps bundle sites in close proximity, to qualify? Again, our point being we have 26 more contaminated sites. 

I appreciate the time. Thank you for the opportunity to speak to 

your Committee today. 

[The prepared statement of Ms. Pierson follows:] 
62 

6/20/2010 

Written Testimony of Helene M. Pierson, Executive Director, The Heart of Camden, Inc. 

www.heartofcamden.org 

To the: 

Senate Committee on Environment and Public Works 

@2:30pm on 6/22/2010 

Good afternoon: 

My name is Helene Pierson and I am the Executive Director of The Heart of Camden, Inc. A 

non-profit community development corporation dedicated to improving the quality of life in an 

old, formerly booming, industrial neighborhood called Waterfront South in Camden, New 

Jersey. The industrial boom left many environmental hazards behind after the decline and 

eventual shutdown of a variety of industries in our neighborhood. 

In Waterfront South, we have two active superfund cleanups to my knowledge. They are known 

as the Welsbach Gas Mantle site to our south and the Martin Aaron site to our north. In addition, 

we have 28 other contaminated sites in the area. 

In a sense, I feel like this is the most childlike and brief report that I have ever written as an 

adult, which is appropriate, because it is for the children that I am here. 

I'm here today not from a scientific perspective, not from a time, nor money perspective as I 

certainly have been around debates over best cleanup practices, I certainly feel that cleanups take 

too long missing entire generations of people growing up near cleanup sites, and certainly take 

much money. 

What I am here for is to say that cleanups should not stop and should not slow down. And I am 

here to say that from the perspective of working in an urban City environment, there is much 

cleanup needed and many people living near cleanup areas and that will not change. 

Our overriding mantra for our neighborhood is that we are part of America, that there is money 

and there is capacity here in America to ensure that no one is living in a substandard 

environment. We all just need to work hard to get the money and the capacity in the right place 

to ensure the balance. 

We have worked closely at times, with the professionals assigned to both cleanups, both United 

States Environmental Protection Agency employees and their consultants. From our experience, 

the process has been transparent, professional, and careful. 
63 

What I will say, to an oversight committee from a neighborhood perspective, and this is a 

recommendation for more than just the Superfund process, please focus the oversight on 

examining the length of time, problems or inefficiencies, during the phases where no actual 

cleanup is taking place. There is nothing more exciting than when actual cleanup work is 

occurring. After all, isn't that the point. Government intervention too often becomes more about 

the jobs that it creates and maintaining their need versus the original intent for which the jobs 

were created. 

Julian, Dayonnie, Octavia, and Arties to put some children's names to the point, are part of 

Waterfront South's current generation of children that have a right to improved conditions. Most 

certainly, being born into a lower-income family has challenges of its own. They don't need the 

government to fail them. 

My understanding of this committee is that it is to examine the EPA's progress in cleaning up 

Superfund sites and its effects on the economy, environment, and public health. 

The work is not done. Examining this system and all systems is prudent and constantly required, 

but if there is anything that I came for today, it is to urge you to not stop the work when there are 

places, like my neighborhood, where the most exciting part-actual cleanup is taking place, 

finally. 

Addendum: The Heart of Camden has a scientific advisory board (SAB) to help us decipher all 

that goes on environmentally in the area. It is composed of our own Environment Director, 

knowledgeable persons from academic institutions, and knowledgeable personnel of a variety of 

government entities. We use the SAB to help us be more productive and helpful in situations 

such as the opportunity to testifY before this committee. The following are some suggestions 

from one of the members who is very close to our neighborhood's issues: 

Suggestions lor specific oppo1tunities for improvement of the Superfund program: 

All are focused on how to get MORE cleanups done MORE quickly as follows: 

I) Are they ranking Superfund cleanup priorities in a manner that is most protective of the 

public health? That is, are they making Superfund sites that are in close proximity to residential 

communities the very highest priority? 

2) Obviously, funding is a very important prerequisite to proceeding with Superfund 

cleanups. Based on my own experience with two Superftmd projects, it seems as though one 

hold up is that when they have identified a responsible party, they have to fight it out with those 

parties to determine who pays how much. BEFORE they proceed with the cleanup. That process 

could be accelerated if the US EPA could enter into an agreement with the disputatious 

responsible parties that would allow EPA to proceed with the cleanup, IN PARALLEL with the 

dispute resolution over responsibility. and then backbill the responsible parties in accordance 

with a mediated settlement. 
64 

3) Could Superfund cleanup ttmds be supplemented via a "Supplemental Environmental 

Project" program allowing funds to be allocated to local agencies with expertise such as nonprofits or local government entities known for superb work to do the work. We have an existing 

program in our neighborhood where the New Jersey Department of Environmental Protection 

has allowed local industry violation fines to go toward local neighborhood cleanup projects. 

While it has only been used once, it led to the cleanup of a small abandoned neighborhood gas 

station, but one that contributed significantly to blight. By allowing the agency that was fined to 

execute the cleanup (in this case a local county municipal utility authority), the process from idea 

to execution went faster and more efficiently than with complicated government processes. 

4) Lastly, is there anything that US EPA can do to accelerate the cleanup of contaminated sites 

that fall just below the Superfund criteria, like a "Superfund Jr." program? We have 28 other 

contaminated sites that fall below the Superfund criteria but still pose a significant batTier to the 

full recovery, and safety, of the residential community. !n addition, there is a case where the 

State of New Jersey took over the responsibility of an adjacent plot of land to the Martin Aaron 

Superfund site, seemingly for economic development reasons that never materialized. It is pretty 

widely rumored, or likely factual to USEPA personnel working on the Martin Aaron project, that 

the Martin Aaron contamination is also present on some parts of the adjacent parcel, hut is being 

ignored due to jurisdictional reasons, and indeed, now. not being addressed at all. There should 

be a forum to make sure politics does not prevent known problems. 
65 

Senator LAUTENBERG. Thank you. 

Dr. Porter. 

STATEMENT OF J. WINSTON PORTER, PH.D., PRESIDENT, 

WASTE POLICY CENTER 

Mr. PORTER. Good to see you, Senator. I am glad to be here 

today. 

I want to take a few minutes to discuss Superfund. I have been 

at Superfund for about 20 or 25 years myself, including as one of 

the early Assistant Administrators. I want to, sir, tell you what I 

have learned about how to finish sites. What we are talking about 

now is completing sites, and I have a little different view that I am 

going to present today than some of the things you have heard. 

Simply stated, money is not always the major problem. What I 

see is lack of management focus on results and on completing sites. 

There is a huge variety in the time it takes to clean up sites 

around the country. For similar sites, one might take 5 years, one 

might take 10 or 15 or 20 years. 

About two-thirds of the sites have been completed. Now is the 

time to focus like a laser on the remaining one-third. And that 

means some dollars and a lot of emphasis. I am all for more dollars, but I am not for just throwing money at the problem and increasing EPA’s overhead. 

There is a lot of overhead in Superfund. As near as I can tell, 

about a third of the money goes to clean up for the sites for which 

there are no responsible parties, and the other two-thirds goes for 

other aspects of the program. 

One of the things that I would like to see the Congress do is 

push harder on the EPA to show us why we should not be spending 

more of your current budget on actual site clean up. I see a lot of 

peripheral issues going on, a lot of administrative things, etc. I 

think we can do much more about directing money at direct clean 

ups. 

One of the specific things I would recommend to Mathy and the 

other folks at EPA is to have a completion manager appointed at 

the highest levels of EPA, reporting to the Assistant Administrator. 

This person’s major role would be to see that sites are completed. 

We are doing a lot of things with committees and so forth. I grew 

up in the project management role in a large engineering/construction company in San Francisco, and I learned that you have to 

focus hard to finish anything. So, I would like someone at a high 

level in EPA who focuses only on cleaning up and completing sites. 

One thing they used to say at EPA is many people can say no; 

only a few can say yes. One of the things that I did when I was 

Assistant Administrator was to write to the regional administrators every quarter and reconfirm a date for clean up of every site. 

I personally asked questions of them, and we got a lot done, frankly. 

Tim Fields of the Clinton administration, a colleague of mine 

who had a similar job, did a super job in the early 1990s of finishing sites by his own personal efforts. It was not the money so 

much, frankly, as it was him pushing hard to complete sites. 

Some sites have gone well. One of the things that I would like 

to see the EPA do is to take these sites that have gone well, sort 
66 

of lessons learned, and say why did this site take X number of 

years and this site took 2X or 3X? 

My favorite example is Rocky Flats, which is a huge nuclear 

weapons site near Denver, which I was responsible for at EPA in 

getting it going in terms of clean up. Then later I came back as a 

consultant and helped them figure out how to clean it up. 

When a new contractor, Kaiser-Hill, came on board in about 

1995, they signed a contract in which they agreed to clean up that 

huge site in 10 years. Before that the Department of Energy was 

talking numbers like 20, 30, or 40 years, and $20 billion, $30 billion, $40 billion. It was then finished in 10 years, totally finished 

in 10 years. The contractor actually got a bonus for doing the work 

in that time period. But the point was they focused like a laser, 

they spent billions and billions less than was anticipated, because 

time is money. So, I think that is a really good example of how to 

complete complex sites. 

That is the reason why, I must say, I am not too enamored with 

bringing back the tax on Superfund. It was good, I think, in the 

early days when Superfund was starting. But as Senator Inhofe 

said, most of the work, about 70 percent, is being done directly by 

private parties. I started that. When I left we had 50 percent that 

was being done by private parties directly, and that, soon after I 

left, got up to 70 percent. 

So, I think the problem with just giving EPA more funds in a tax 

is that a lot of it will not go to clean up. A lot of it will go those 

overheads I mentioned earlier and other things. If you really want 

to give EPA money, I would give it directly, perhaps on a site-bysite basis. 

I go around the country and work on sites, trying to help people 

finish. I am frustrated by the lack of focus on finishing sites. And 

that is a hard thing to do. It takes a lot of cooperation between the 

States, EPA, and others. I would just like to see more of that. 

As far as polluter pays, I am all for it. I pushed that hard during 

my days. But the, restoring the tax is what I call ‘‘some polluters 

must pay twice.’’ The chemical and petroleum companies are already paying for their own sites. They now are being asked to pay 

for sites they had nothing to do with. Much less than half of all 

sites were produced by oil and chemical people. Automobile companies produced sites. Telephone companies produced sites. Many 

sites have been produced by non-oil and non-chemical companies. 

So I cannot for the life of me see why it is fair to ask them to 

pay for their own sites plus pay for ones they had nothing to do 

with. Also, what we need is more focus and management than just 

more tax money. 

So, that is my focus on this, and I would be happy to answer 

your questions. 

[The prepared statement of Mr. Porter follows:] 
67 

Testimony of Dr. J. Winston Porter 

Subcommittee on Superfund, Toxics 

and Environmental Health 

Senate Committee on Environment and Public Works 

June 22, 2010 

Mr. Chairman, my name is J. Winston Porter, and I am president of the Waste Policy 

Center in Leesburg, Virginia. The WPC is an independent research and consulting 

organization which deals with management, policy, and technical issues in the areas of 

solid and hazardous waste management, as well as other environmental matters. From 

1985 to 1989, I was the EPA's Assistant Administratorfor Solid Wastes and Emergency 

Response. 

It is a pleasure to be here today to provide testimony on EPA's progress in the cleaning 

up of Superfund sites. Specifically, I will make a number of recommendations to improve 

the pace of these remedial activities. 

In my testimony I will draw on over 20 years of Superfund experience, including 

management of the EPA program as well as consulting activities with various federal 

agencies, states and private parties. My professional background also includes the fields 

of chemical engineering and project management. I will start with a brief background 

statement and key recommendations, and then provide more detail on Superfund's 

study, remedy selection, and remedy construction phases in relation to improving the 

pace of the cleanup program. 

Background and Recommendations 

Brief1y, the current status ofEPA's Superfund program is that about two-thirds of the 

1,500 national priority list sites have reached the construction completion (remedy 

installed) phase, about 3 70 sites are in the remedy design or construction phases, and 

approximately 120 sites are in the study phase. 

In addition, many thousands of "emergency removals" have been conducted at Superfund 

sites in order to directly and cost effectively deal with obvious problem areas. This 

program has been perhaps Superfund's biggest success story. 

In addition to the EPA, both the Departments of Energy and Defense have major 

Superfund-related programs underway. The DOE work primarily involves a few dozen 

very large facilities, most of which have been components of the nuclear weapons 

program. The DOD sites are much more numerous, although usually less complex, and 

include both Superfund and base closure activities. 
68 

So, a large amount of work is underway or has been completed by dedicated federal and 

state personnel as well as potentially responsible parties ( PRPs) and various private 

contractors. For the remaining work it is important to improve program efficiency, as 

site study and remedial activities often take too long and cost too much. 

In order to complete the remaining Superfund sites, the following recommendations are 

made to improve program efficiencies: 

1. The focus of the Superfund program should increasingly be on the completion of 

existing sites. The various administrative and support services should be reduced 

as sites are completed in order to provide more funding for site completion work. 

2. Consideration should be given to designation of a senior member of the assistant 

administrator's office to oversee and promote site completions. 

3. Completion dates should be set for all current study and cleanup work. A 

"culture of completion" should replace the current "culture of deliverables." 

Program reports and other paperwork should be streamlined. 

4. Some Superfund sites have been completed in a timely and cost effective manner. 

It is suggested that a sampling of such sites be identified and used to inform the 

timely completion of other sites. 

Perhaps the most dramatic use of target setting has been the DOE Rocky Flats Closure 

Project, near Denver. For this site the "completion contractor," Kaiser-Hill, and the DOE 

agreed upon a 2005 target date for all study and remedy implementation work to be 

completed. If successful, the contractor was to receive a completion bonus. Not only 

was the project completed on time, but billions of dollars and many decades of time were 

saved. This work, of course, required good cooperation among the DOE, EPA, the State 

of Colorado, local stakeholders, and the contractor. The firm completion target date 

greatly focused this cooperation. 

I will now provide more detailed comments or recommendations on the three major 

Superfund components, study, remedy selectioll, and construction phases. 

The Study Phase 

While the study projects related to Superfund sites are a decreasing part of the overall 

program, such activities are still very important to overall program success. Superfund 

projects usually begin with a "remedial investigation/feasibility study" (RI/FS). This 

complex study process is described in some detail in Superfund's primary regulation 

the National Contingency Plan. 

2 
69 

Very briefly, the RI portion calls for characterization of the site in terms of its natural 

features, as well as the amount and location of contamination and likely risks of such 

contamination to public health and the environment. The FS part involves identification 

of alternative remedial actions, and then comparison of such alternatives against a set of 

nine remedy selection criteria. 

Based on the RI/FS process, as well as substantial stakeholder input, EPA then selects a 

remedy for the site through a "record of decision" (ROD) process. 

In general, the RI/FS process has become steadily more complex and lengthy over the 

years, for almost all types of sites. My recommendations for conducting faster, less 

costly, and more technically sound RI/FSs are as follows: 

1. Most importantly, timeframes for completing the study phase should be agreed 

to by the EPA and other key participants, such as States and PRPs. 

Unfortunately, at many sites the study work simply meanders around for many years 

without much focus on alternative remedies, leading to wasted time and money, and, in 

some cases, an unimaginative or non-cost-effective remedy selection. Frankly, part of 

this lengthy process has to do with the fact that Superfund has become a lucrative source 

of work for various consultants, lawyers, and other participants. All of these specialists 

are needed, but their work needs to be more directed toward the timely selection of a 

sound site remedy rather than complex and lengthy work processes and paperwork. 

Stated differently, there is often little sense of urgency in completing the study phase due, 

in part, to the lack of a senior "champion(s)" to complete the work. This is, or course, 

very frustrating to the communities involved. I would like to see such "completion 

champions" developed in both the governmental and private sectors at Superfund sites. 

Some very complex federal and private sites will require longer study periods, but for 

most sites about 2-3 years should be adequate to produce a sound RI/FS. 

To improve matters, early in the RI/FS process the EPA, PRPs, and other relevant 

organizations, should work together to set a clear goal to complete the study activities. 

This end date can be modified if necessary, but it is important for all to understand that, 

like almost every other type of engineering project, schedule (and budget) are key factors 

and should be adhered to. 

2. When the RI/FS process begins one of the first orders of business should be to use 

experienced staff and key stakeholders to quickly identify about 4-7 major remedial 

action alternatives. 

During this phase use should be made of EPA's list of"presumptive remedies" for many 

types of problems, as well as experience gained at similar Superfund sites. 

3 
70 

The selected set of alternatives can always be modified during the study phase, but the 

current process which often involves "taking data" for many years before detailed focus 

on remedial options often leads to overly costly information, much of which may not be 

needed. Also, since the data collection is often pot focused on comparing alternative 

remedies, the key information to compare such alternatives is sometimes missing. 

An iterative approach should be used where information collection and analysis of 

remedial alternatives work cooperatively to achieve sound comparisons of options, 

leading to good remedy selections. 

Even more importantly, the identification of key options early in the study process allows 

the decision-makers and stakeholders to begin their dialogue on non-technical factors 

which are contained in the remedy selection criteria. These include such items as costeffectiveness, implementability, and state and community acceptance. Many times these 

types of factors are at least as important as the strictly technical matters, such as very 

precise measurement of numerous contaminants, many of which are present at near-zero 

levels. 

3. Significantly streamline the process for developing the myriad of deliverables at 

Superfund sites. 

While certain documents are clearly needed to guide the RI/FS activities, the long, 

tedious process of developing complex draft and final work plans, for example, should be 

expedited. This is also true of dozens of other "deliverables" which take so much time at 

Superfund sites, many of which should be quite standard by now. It might be helpful to 

revisit the need, or at least the complexity, of such deliverables. 

There are several perverse effects which have led to such lengthy periods for document 

development and review. One has to do with the fact that Superfund is about the only 

federal environmental program where responsible parties have to pay for additional 

oversight beyond that which salaried regulators normally provide. Thus, if a group of 

PRPs are forced to give EPA, say,$ 3-5 million for oversight, then EPA can retain 

contractors to provide hundreds of pages of"comments" on such items as the 

aforementioned work plans. So, we now have dueling contractors battling over many 

pages of detailed text, before work can even begin. 

One near term answer would be for review periods and oversight dollars to be reduced 

substantially, so participants can focus more on results than elaborate processes. PRPs 

should usually be encouraged to conduct the RIIFSs themselves with their own 

contractors and under EPA's overall supervision. 

While this concept has been largely accepted and successfully promoted by the EPA, 

more could be done to encourage PRPs to do the study work, particularly where PRPs 

would commit to shorter timeframes than EPA often takes for its own studies. 

4 
71 

A key aspect of PRP-conducted studies has to do with selection of appropriate consulting 

firms to conduct the necessary RI/FS activities. Such contractors have a difficult role in 

that they need to be responsive to their client, the PRPs, but must also provide the 

objective and professional work needed by EPA to allow selection of a sound and costeffective remedy for the site in question. 

The key is for the EPA, the relevant State, and the PRPs and their consultants to develop 

a cooperative and results-oriented relationship for the site work. 

The Selection of Remedy Phase 

The RI/FS process discussed above presents the decision-maker with detailed 

comparisons of alternative remedial actions, from which this person must select a 

remedy, present it to the public for comment and make a final determination. The 

selection of protective, cost-effective remedies is, of course, a key to the overall success 

of the Superfund program. My suggestions in this area are as follows: 

1. The decision-maker should be a very senior EPA official who can oversee all of 

the considerations which go into remedy selection. As noted earlier, technical factors 

are very important in this process, but non-technical factors are also key. For example, if 

there is very strong community opposition to a particular remedial action, or if a remedial 

option is not cost-effective, such factors must be considered by the decision-maker. 

During my tenure as an EPA assistant administrator I made a number of ROD decisions, 

mainly at "nationally significant sites." Most decisions I delegated to the ten EPA 

regional administrators (RAs). However, over the years the ROD decision responsibility 

has, in most cases, been delegated further down the line in the EPA regions. 

My own view is that the RA should usually be the decision-maker in this important 

process since he or she is the one who can speak for the region and has the position and 

stature to consider all aspects of the problem, while "pushing" the staff to provide the 

necessary information to complete remedy se.lection expeditiously. 

2. The role of expected land use should be an important factor in selecting a 

remedy. 

While all remedies should be protective, it does not make much sense to demand that a 

cleanup be sufficient for, say, a children's daycare center, when the site is slated for use 

as a golf course, or a factory, or a wildlife preserve. All of these uses have their own 

requirements, so we do not need a one-size-fits-all approach to waste sites. The goal 

should be for a site to always be protective, so the remedial action may need to be 

modified at a later date if the site usc changes significantly. 

During Superfund's history one of the better examples of the role of land use in remedy 

selection had to do with the DOD's Rocky Mountain Arsenal in Colorado. For this site, 

5 
72 

the DOD decided ultimately that the land use would be for a wildlife refuge, not 

residential housing. Once this decision was made the DOD, Shell Oil, EPA, and the 

state and local stakeholders worked together to select the remedy and move quickly into 

the implementation phase, and a important wildlife refuge is the result. 

Another DOD example may also be instructive with respect to the land use issue. This 

has to do with the DOD's Superfund-related remediation sites versus those conducted 

under the base closure program. Simply stated, the base closure cleanups, including the 

selection of remedy, seem to proceed much faster than those related to Superfund. One 

of the reasons, I believe, has to do with the fact that local communities and others are 

usually highly motivated to finish base closure cleanups in order to bring the affected 

land into productive use. The same time pressure often does not exist with Superfund 

remedial activities. 

The Construction Phase 

As noted earlier, the major activity these days has to do with the construction phase at 

Superfund sites. About 370 sites are in the phase where the selected remedy is being 

either designed or constructed. Currently, this is also the most controversial phase in 

that EPA may not have sufficient funds to expeditiously complete all of the construction 

work now planned. 

This is particularly true for so-called fund-financed sites where EPA must install the 

remedy itself as there are insufficient willing and able PRPs to conduct this work at some 

sites. 

The following are my recommendations on these construction-phase issues: 

1. The roughly $1.2 billion dollars which is annually appropriated to EPA by Congress 

should be looked at very carefully by EPA senior management to ensure that the highest 

priority is given to protecting human health and the environn1ent by ensuring that 

Superfund sites are completed. 

2. If Congress is satisfied that EPA has done all it can do to squeeze out funding for as 

many construction sites as possible, then it might consider a supplemental appropriation 

to EPA to focus on additional construction activities. 

3. The EPA might selectively revisit the ROD decisions made at selected sites to see if 

some savings can be made based on new information or technology. 

4. Although I suspect that this is already being done, that portion of the site which may 

provide actual, near term risk to the community should receive very high priority for 

funding. 

6 
73 

5. While aiming at the highest risks is always the most important priority, I personally 

believe that where sites can be finished for modest sums of money, such funding should 

be considered, as there are usually site "carrying charges" which can then be reduced. 

6. The EPA and others should be creative in finding non-federal funds for completing 

sites. In some cases, local developers or others may be so interested in having access to a 

completed site that they may be interested in helping financially. This type of financial 

driver has, of course, been instrumental in dealing with brownfields sites, which can often 

be very valuable when cleanup measures are completed. 

7. Other creative measures should be pursued in the future to minimize costs and to 

develop more creative financing. A good example is the joint EPA and Army Corps of 

Engineers eight pilot programs referred to as the "urban rivers restoration initiative." In 

this program the EPA and the Corps, along with state and other agencies, work together 

to achieve a better and more cost-effective restoration program than by using Superfund 

alone. 

8. Finally, it was mentioned earlier in this testimony that the emergency removal 

program has been one of Superfund's major successes. This program can deal with 

obvious contamination problems anytime during the Superfund process, with much less 

process costs than the remediation program. Given, this program's success, Congress 

might consider allowing EPA to spend more than the current limit on individual removal 

actions. 

Implicit in all the above is the fact that I don't believe that the chemical and petroleum 

feedstock taxes should be renewed on Superfund. These taxes are unfair in that they 

target only two industries, which together account for much less than half of Superfund's 

contamination problems. Also, Superfund sites are a broad societal problem which has 

been created by many types of industries; local, state, and federal agencies; and even 

individuals. 

Therefore, I believe the current process or' requiring directly responsible parties at a site 

to fund the necessary work at that site is the best approach. For those sites, where 

responsible parties are not available to conduct the work general revenues are the most 

equitable approach, given the widely varied causes of contamination at such sites. EPA 

also has strong legal authorities to seek reimbursement from known responsible parties 

who are able, but not willing, to do the work in question. 

Mr. Chairman, I hope my remarks will be helpful to Congress in dealing with this 

important program, and I will be happy to answer any questions which you might have. 

7 
74 

Environmental and Public Works Committee Hearing 

Superfund Hearing- June 22,2010 

Follow-Up Questions from 

Senator M. Inhofe 

for 

Dr. J. Winston Porter 

l. What do you think is primarily holding up the completion of 

Superfund sites ? Is it mostly lack of funding ? 

No, it is not mostly lack of funding. First, about 70 percent of Superfund 

sites are dealt with by potentially responsible parties (PRPs). Second, EPA 

receives about $1.2 billion per year from general revenues. Thus, 

considerable funds are on hand to complete projects. Superfund cleanups are 

primarily held up by the following: 

(a) Firm deadlines for site studies, selection of remedies, and installation of 

the remedies are rarely set, and there is often little consequence when sites 

take too long or cost too much. These deadlines need to be visible and 

should require senior management approval before they are changed. 

(b )Study work often does not focus on the information needed to conduct 

tradeoff studies between alternative remedies, as called for by the National 

Contingency Plan. Indeed, alternative remedies are often not even 

developed until site investigation work is nearing completion. 

( c )Senior management in the EPA regions and headquarters do not spend 

enough time in "forcing the pace" of cleanups, nor in making key project 

decisions. Similarly, PRPs and their consultants and other advisors often 

place little emphasis on completing sites in a timely manner. 
75 

2. What are the main attributes of timely and cost-effective site 

cleanups? 

The main attributes include the setting of finn and visible deadlines early in 

the process for such matters as completion of the study phase, selection of 

the remedy, and installation of the remedy. 

Timely and cost-effective cleanups usuaJiy involve strong senior 

management (both regional and headquarters) interest in keeping the project 

on schedule and within budget. Key management decisions are made in a 

timely fashion. 

Another key attribute is the use of strong management and technical 

consulting finn(s) who have shown the ability to complete projects in a 

timely, practical, and cost-effective manner. 

3. Do you have any ideas as to how EPA could organize more effectively 

to expedite cleanups ? 

The most important organizational activity would be to give more Superfund 

site completion authority to a senior member of the office of the EPA 

assistant administrator for solid waste and emergency response. The EPA 

regions would continue to implement Superfund studies and cleanups, but 

the senior official would ensure that all projects have firm deadlines and 

would be briefed when projects are in danger of missing key deadlines, such 

as ROD selection or construction completion. Emphasis should also be 

placed on ensuring that a cost-effective remedy is selected, as called for in 

the Superfund statute. 

Also it is important to note that some Superfund sites have been completed 

in a timely and cost effective manner. It is suggested that a sampling of such 

sites be identified and used to infonn the timely completion of other sites. 

4. What did you mean in your testimony about developing a "culture of 

completion" regarding Superfund sites ? 
76 

Most Superfund work is done now under what might be called a "culture of 

deliverables." Superfund activities do involve the production of numerous 

deliverables, such as work plans, quality assurance plans, sampling 

protocols, etc., etc. These items are important, but do not magically cause a 

site to be completed, and usually take a large amount oftime and money. 

The "culture of completion" to which I refer means that the primary focus 

should be on site completion, and deliverables should be streamlined and 

conducted only as needed to allow the site to be properly investigated and 

remediated. All members of the project team should understand that the 

goal is satisfactory and timely site completion, and all work should be 

directed toward this goal. 

5. What do you think about bringing back the Superfund taxes, which 

some refer to as the "polluter pays" principle ? 

The "Superfund Taxes" should not be restored by Congress and the 

Administration for two primary reasons: (1) it is an extremely unfair tax, and 

(2) it would not expedite Superfund cleanups. Such taxes would also pervert 

the "polluter pays"principle , particularly as it relates to "orphan" sites. 

These taxes would be paid mostly by chemical and petroleum firms, 

although a large majority of Superfund sites were caused by other industries 

and even governmental units. For example, Superfund sites have been 

caused by automobile manufacturing, electronics firms, recyclers of used oil 

and batteries, mining operations, military and energy facilities, municipal 

solid wastes management, individuals, and many others. 

Thus, if the taxes are restored a new principle would be enacted: "some 

polluters must pay twice." A small fraction of responsible parties would pay 

for their own sites, and then for orphan sites for which they may have had 

almost no involvement. For this broad societal problem, general revenues 

should be used where viable responsible parties cannot be identified. 

Before further consideration of new taxes it is important to look carefully at 

two key factors: (1) the projected costs and time needed to deal with all 

remaining orphan sites, and (2) other management approaches to expedite all 
77 

site completions, thus saving both time and money. Recommendations for 

improved approaches follow. 

Instead of increased funding, what is needed in EPA is more focus on 

timely site completions (with more senior management attention), as well as 

increased use of EPA's annual $1.2 billion appropriation to support site 

completions, as opposed to the current "siphoning off' of many dollars for 

administrative and "process" activities. 

6. Do you think there are many more Superfund sites to be discovered ? 

What about the long term picture for Superfund ? 

I do not believe there are many more Superfund sites to be discovered. One 

of the major accomplishments of the Superfund program has been to screen 

tens of thousands of waste sites, leading to the selection of only a very small 

percentage of such sites to be proposed for Superfund status. Thus, I believe 

that we have probably identified most of potential sites in the country. 

In addition, we now have many other programs to be used to deal with the 

vast majority of waste sites. For example, almost all the states have their 

own superfund-type programs, which can be used for most hazardous waste 

sites, at usually less cost and money. We also have national and state 

brownfield programs which can deal with less-contaminated sites. Finally, 

there are also many "voluntary" cleanup programs which use the threat of 

Superfund or other programs to leverage cleanups. 

I think the long term picture for Superfund is a steady decline in the number 

of sites requiring Superfund cleanups. The Superfund program has had 

many good outcomes, but has proven to be increasingly complex and 

expensive. Probably the best part of Superfund has been the emergency 

removal program, whereby immediate and usually less costly problems are 

dealt with in an expeditious manner. This program should be continued. 

The focus of the Superfund program should increasingly be on the 

completion of existing sites. The various Superfund administrative and 

support services should be reduced as sites are completed in order to provide 

more funding for direct site completion work. 
78 

Funding of the Superfund Program 
79 

The Superfund Program is funded by two lll<\ior sources. The llrst source consists of 

annual appropriations by Congress. usually amounting to about $1.:2 billion. The other 

sources are provided by PRPs and include th..: follov,·ing: ( l) PRJ' payment to EPA and/or 

State for their oversight of PRP site activities. (2) site work pcrfbrmed directly by PRPs 

and their contractors, and (J) rcimbursemcntl1y PRI's to EPA to pay for work 

pcr!(mncd hy EPA at PRP sites. 

\:Vhy not restore the Superfund Taxes'? 

The two main reasons fix not restoring Superfund Taxes have to do with (I) the basic 

unli.1irness of the currently propose plan and (2) this would be throwing large amounts of 

money at a program whose real problem is the need f(lr fundamental mmmgcmcnt 

changes. 

The fairness issue. The tax progmm lltYorcd by the Administration and some in 

Congress would put most of the financial burden on only two industries. chemicals and 

petroleum. This makes no sense as these two industries have been involved in only about 

ten percent of all Superfund sites. This makes even less sense when the wx is promoted 

as the an:mw to dealing with orphan sites. \\'here chemicals and petroleum arc involved 

with about three percent of all such sites. 

This totally perverts the "polluter must pay" principle in that the vast majority of 

"polluters" would be asked to pay wry little beyond their own sites. while a small sltcc of 

industry. chcmicals and petroleum. would csscntial!y pay f(n cverything:. In other words. 

some industries would come under a new theory: "some polluters must pay twice." 

To illustrate an approximate breakdown of all of the industries and other entities involved 

in Superfund nrc shown in Figun: I. 

Summary and Recommendations 

1\ lll<\ior issue facing Superfund has to do with completing all categories of sites in a 

more timely tl1shion. A second 111<\ior issue relates to the funding of orphan sites. which 

arc currently funded out of EPA's annual appropriation fhm1 ( 'ongrcss. 

lt is important to understand that thc currently considered restoration of Superfund Taxes 

would not only help with completion of orphan sites. but would almost double the 

funding of the Superfund program. which is presumably a program wllil:h is steadily 

running out of sites in need of remediation. 
80 

Before serious consideration of new taxes it is important to look carefully at two key 

factors: ( 1) the projected overall costs to deal with all remaining orphan sites needing 

remediation, and (2) other management approaches to expedite all site completions, thus 

saving both time and money. 

In order to complete the remaining Superfund sites, the following recommendations are 

made to improve program efficiencies: 

1. The focus of the Superfund program should increasingly be on the completion of 

existing sites. The various administrative and support services should be reduced 

as sites are completed in order to provide more funding for site completion work. 

2. Consideration should be given to designation of a senior member of the assistant 

administrator's office to oversee and promote site completions. 

3. Completion dates should be set for all current study and cleanup work. A 

"culture of completion" should replace the current "culture of deliverables." 

Program reports and other paperwork should be streamlined. 

4. Some Superfund sites have been completed in a timely and cost effective manner. 

It is suggested that a sampling of such sites be identified and used to inform the 

timely completion of other sites. 

6. Do you think there are many more Superfund sites to be discovered ? 

What about the long term picture for Superfund ? 
81 

Senator LAUTENBERG. Thank you. 

Dr. Stumbo. 

STATEMENT OF JOHN E. STUMBO, 

MAYOR, FORT VALLEY, GEORGIA 

Mr. STUMBO. Mr. Chairman, members of the Committee, my 

name is John Stumbo. I am a 13-year Mayor of Fort Valley, Georgia, which has a Superfund site. I am going to bring a couple of 

different perspectives today because I am from small town America. 

My town has all of 9,000 people, if you count all the cats and 

dogs. And we have about an 11-acre Superfund site in the middle 

of our city, two blocks from our downtown commercial district. We 

have some unique situations because of that. It is in the middle of 

residential neighborhood. The pollutant there was arsenic, heavy 

concentrations of arsenic that were produced over 70 years in the 

operation of two pesticide companies. 

My first purpose in being here today is to compliment the Environmental Protection Agency. We, after 13 years—it kind of parallels my tenure I guess—are just within 2 months of finishing up. 

We probably spent about $30 million on that site. 

And now the third leg of the stool, if you will, has to be done. 

The first leg is of course testing and developing records on decision. 

The second phase is to remediate. And the third phase is going to 

be up to the local communities and others to help with redevelopment. I do not have a choice about redevelopment. I cannot put a 

chain link fence around my site in the middle of my town and put 

a no trespassing sign on it. I have got to redevelop it. 

One of the things that I would suggest to EPA is that we have 

taken, Mr. Chairman, we have taken and extensively made use of 

the brownfields program, and I appreciate that very much. We 

have been the recipient of two of those, and I appreciate your history in that movement. 

We need to suggest to EPA that communities like mine need help 

on redevelopment. Obviously, you have done for us, they have done 

for us, what we could not have done for ourselves. I am an old, 

worn out law professor of 150 years ago, and I am being facetious, 

but one of the criticisms I have about our system, and this really 

speaks to State law, in Region 4, at least that I am more familiar 

with than the other regions, and certainly in my case, the potentially responsible party was at the bottom of a corporate ladder of 

parent and subsidiary corporations that we saw all the way up to 

a multinational holding company. 

This corporation that contaminated my site was created for the 

sole purpose of operating that site. And we looked very hard at trying to pierce the corporate veil and go upstream to assess liability 

because we had a multinational corporation at the top. 

But part of our problem is that when we have corporations 

formed under State law that potentially could be polluters we do 

nothing about ensuring their capital wherewithal or a protection, 

if you will, against that corporate liability shield that attaches. And 

I would suggest to you that in several places, including in Florida, 

Alabama and Georgia, we have lost the potentially responsible 
82 

party because they simply take bankruptcy, which is what happened in our case. 

Another thing I want to speak to you about, in my particular 

goal, is the role and the involvement of the community. There is 

comment made throughout these documents about transparency. 

We set up something for which we have been given recently a national award by EPA. That was that 12 years ago, I called together 

all the stakeholders, about 70 of them, in a room, and we started 

meeting. And they were shouting at each other and yelling at each 

other because we had citizens from the community and all the 

agencies, both State and Federal there, all of the stakeholders. And 

there was a lot of anger in the room. 

The potentially responsible party had opened up the meeting and 

had hired a firm to conduct the meetings. And finally somebody 

said, after the third meeting, which was chaos, well, the only person in the room the people trust is the Mayor. And I presided over 

that meeting. 

We have met every 6 weeks for 12 years. And I discovered that 

if we ate together over the noon hour, that people would begin to 

talk about other things besides the affairs of the day, and they 

would get to know each other’s family, and we would build a community. 

And that alliance, as we called it, I have talked about it at two 

prior EPA meetings around the country, because I suggest to you 

that it is an ideal way to engage the community in an ongoing way 

because every 6 weeks my people could ask questions of the agency 

representatives, State and Federal. 

And every 6 weeks we could determine what needed to be done, 

what the progress was, what the expected completion was, and we 

were able to hold everybody’s feet to the fire. And we had some 

blessings. We had outstanding staff people from the agencies who 

were with us the whole 12 years. But sure enough a community developed. And we had a couple of members that died; we had a couple of members who got married and had children. We rejoiced in 

that. And we ate a meal together every time we met. 

I would suggest to you also in these Superfund sites, at least in 

small town America, that the involvement of the elected leaders of 

the community is critical to the success of community acceptance 

of a Superfund process. If that leader has been elected to serve 

then he ought to be able to engender the support of the people for 

the process. 

Thank you very much, Mr. Chairman. 

[The prepared statement of Mr. Stumbo follows:] 
83 

Prepared for: 

United States Senate 

Committee on Environment and Public Works 

By: Dr. John E. Stumbo 

Mayor of Fort Valley, Georgia 

Memorandum regarding the Woolfolk Superfund site in Fort Valley, Georgia 

The Woolfolk Superfund site in Fort Valley, Georgia was placed on the 

National Priorities List (NPL) on August 30, 1990. The site is approximately 

eleven acres in size. After years of testing, plans for remediation were set 

forth in a number of Records on Decision. The testing included drilling 

monitoring wells to test subsurface ground water. A water treatment plant 

was built on site to clean the water after testing. Thereafter the water was 

pumped to the city's waste water treatment plant. 

The source of the contamination was from two pesticide 

manufacturing companies located at the site since the 1920s. The last of 

those companies ceased operations in approximately 1985. They mixed 

powdered components to produce pesticide for the farming industry. One of 

the principal ingredients and, therefore, the principal contaminant, was 

arsenic. 

Presence of large aquifer: Our city is located in the recharge area for 

the large Tuscaloosa aquifer. In addition, there are other smaller aquifers 

closer to the surface. The concern that the ground water could have been 

contaminated with arsenic by percolation provided the rationale for the site 

being designated as a Superfund site. 

Potentially Responsible Party: The last company producing pesticide 

at the site was Canadyne Georgia, which became the "potentially responsible 

party." There was a civil lawsuit filed against that company by a number of 

citizens alleging personal damages from health issues arising from arsenic 

poisoning and loss of value to real estate in the area. That case was settled 

1 
84 

more than twelve years ago and the court ordered the distribution of the 

damages paid. 

In the early years of the testing the Canadyne Georgia corporation was 

involved with providing information and paying some costs. However, the 

corporation declared bankruptcy. It was a subsidiary of a holding company, 

but it was not legally possible to assert liability up the corporate ladder to 

the parent corporations. Therefore, the EPA has provided the funds to test 

and remediate the site. That process has been very active for the last 

thirteen years. 

In addition to the eleven acre site extensive testing was done in house 

attics and yards of nearby neighborhoods for excessive levels of arsenic. In 

early years the mixing of the powdered chemicals was done in the open air 

which caused arsenic to be spread by the wind. After testing the EPA 

contractor cleaned over sixty house attics and yards to acceptable levels. 

The acceptable levels permitted depend on the use being made of the 

property, with residential property having the most stringent cleanup 

requirement. Another complicating factor was that the EPA would 

periodically lower the acceptable level permitted. 

Value of citizen advocacy group: When the nature of the 

contamination became known a group of citizens formed the Woolfolk 

Citizens Response Group. Their purpose has always been to oversee the 

testing, development of the records of decision and finally the remediation. 

They have been very diligent in their efforts to protect the citizens of our city 

throughout the process. To their credit they did not take to the streets to 

protest or cause difficulty. They worked constructively within the process. 

I have served as Mayor for the last twelve years and, therefore, have 

been very involved in this project. It became apparent that we needed to 

establish a method by which the citizens could voice their concerns, serve as 

advocates, and receive progress reports from EPA and its contractors, 

engineers etc. We also needed a periodic opportunity for all of the state and 

federal agency staff to speak with other and to the community. 

2 
85 

Provision for a Technical Assistance Advisor: As a part of the 

process, EPA has provided the city and our citizens group with a technical 

assistance advisor. Dr. Claude Terry, a well known and outstanding 

toxicologist, has served in that capacity for us for over fifteen years. The 

willingness of the EPA to provide the technical expertise is very important to 

the Superfund program. The issues are so complicated that lay people 

would not otherwise even know what questions to ask. Certainly the 

provision for a technical advisor is expensive. However, those persons are so 

important to a community who does not otherwise have that expertise 

available to it. Our small city could not afford the cost. That expert's 

presence levels the playing field. 

It will always be important that the technical advisor understand their 

role. They are to represent the community. They need to ask the important 

questions of the agencies, engineers and contractors. They need to explain 

and interpret the process and the technical issues to the community. 

However, they must also be judicious and not unnecessarily create 

animosity. The process has enough conflict without artificially adding more. 

Dr. Terry did an exceptional job for us and for the process. 

The Establishment of the Alliance: Earlier I spoke about the need 

for a forum in which all interested parties could participate. We established 

a meeting group which we called the Alliance. We brought together 

representatives from EPA, other federal agencies, several state agencies, local 

elected officials, the citizens' advocacy group and any private citizens who 

wanted to attend. The first couple of meetings twelve years ago were 

disasters because there was a great deal of anger, frustration and mistrust 

among the citizens, the potentially responsible party and the agencies. The 

potentially responsible party had brought in an outside firm to preside. 

However, after the difficulty of the first few meetings the group asked me, as 

Mayor, to preside. 

This Alliance group has met every six weeks for twelve years! I have 

never missed a meeting to preside in those twelve years. We were able to 

3 
86 

quiet the anger and encourage people attending to ask their questions and 

make their comments in a respectful way. We would meet for about four 

hours and break for lunch in the middle. Sometimes we would lose some 

citizens due to the break for lunch. I have paid for lunch for all the 

attendees these twelve years out of my personal funds. I felt that if our 

attendees could eat together, they would get better acquainted with each 

other, talk about their families or whatever, and a community would be 

developed. If the members of the group were asked about that today, and we 

are still meeting, I think that they would say that indeed a community of 

people from varying backgrounds has been formed. 

We have been blessed through the years that there has been little 

change in the persons attending. Because the individual people have 

remained the same the forming and maintenance of the community feeling 

has been easier. Obviously some engineering people have changed. One of 

the agency representatives has died and we mourned his loss; others have 

gotten married and had children and we have celebrated those times in 

individual lives. 

Requirements for outside contractors: Another element in the 

process which is utmost importance is that the engineers and contractors 

that EPA chooses must be able to relate to the people, be trustworthy in 

their reports and advice and be competent. Those outside persons for our 

site have all been outstanding. The contractor from Nicholasville, Kentucky, 

who has been here doing remediation for more than five years was excellent. 

As Mayor I have not received one single complaint in those five years about 

their work. 

Local Elected Leadership: Another important strategy with 

community Superfund site work is be sure and get the local elected 

leadership involved. In cities and towns, the Mayor needs to be involved and 

committed. Our Woolfolk site has always been a high priority for me. The 

elected leadership ought to be able to bring the community on board with 

the process and act as an interpreter of the issues and progress. 

4 
87 

Patience, Perseverance, and Gratitude: The attitude of the 

community is very important. They can be a hindrance. In Fort Valley we 

stressed constantly three essentials to our citizens. We must always have 

patience. A Superfund project will always be a long process. Secondly, 

persevere; stay involved and interested through the long term. And finally, 

be grateful for all of the assistance and financial resources that EPA is 

providing. The agencies do for us what we could not do for ourselves. 

Brownfields program: Another important resource to Superfund site 

cities is the Brownfield program. Fort Valley has received two of these grants 

which were used for testing outside of the Superfund area in order to 

alleviate psychological fears of contamination. Agency staff in the 

department need to reach out to cities with a superfund site, evaluate the 

needs and assist with the procurement of the grants. Often the local 

community does not know what resources are available. We have received 

excellent cooperation from the Brownfield staff. 

Adequate funding: Obviously, there are three major segments to 

Superfund work. The testing must be done to determine the nature and 

extent of contamination. Following the establishment of a Record on 

Decision, the cleanup plan, remediation follows. The final phase is 

redevelopment. How fast the testing and remediation phases proceed is 

primarily determined by funding. If EPA is having to provide the funding, in 

the absence of a potentially responsible party, then each site has to compete 

with many other sites for financial allocations. 

Our city has been blessed to receive enough money to do the testing 

and all of the remediation with only one ROD remaining unfinished. One of 

our fears was that the process would get started but would then be 

abandoned or delayed in midstream for want of continued funding. If we are 

determined to locate contaminated sites for the protection of water through 

the Superfund process then it will be imperative for Congress to provide 

adequate funding. We cannot open up holes to excavate contaminated soil 

and then walk away without finishing because there is no money left. If that 

5 
88 

occurred in our city of 9,000 people we would never be able to finish the 

work ourselves. 

Difficulties for our city in redevelopment: Redevelopment is the 

process left primarily to the community. EPA did provide to our city a 

redevelopment planning consultant who helped us understand how to 

develop a redevelopment plan. In order to better understand the challenges 

of this last phase of the process I want to mention some peculiarities facing 

our city. 

1. Small population: We are a city of only about nine thousand 

people. However, we are the location for Fort Valley State 

University. The small population means, among other things, that 

we cannot generate internal capital from public funds to spend on 

redevelopment. We also have a higher than average rate of 

unemployment and a below average level of income per household. 

2. Proximity to larger cities: We are not a suburb city and yet we are 

only 30 minutes from over 250,000 people in Macon and Warner 

Robins, Georgia. Therefore, it is very difficult for us to maintain a 

viable commercial district because of our proximity to larger 

shopping areas. The result is that it will be very difficult to attract 

commercial businesses into our eleven acre Superfund site. Private 

development pays property taxes and rent, both of which could be 

used by our development authority to develop and market the 

property. 

3. Limited Uses: Therefore, our city will probably have to redevelop 

the site for recreational, educational and government purposes. 

None of those uses pay property taxes or rent. Without a revenue 

stream, it will be difficult to amortize development loans. 

4. Location of Site: Some Superfund sites are outside of town or 

located in remote industrial parks. However, the eleven acre 

Woolfolk Superfund site is only two blocks from our commercial 

downtown district and in the middle of a residential neighborhood. 

6 
89 

Therefore, we do not have the option of putting a chain link fence 

with no trespassing signs around the site and leaving it as is. The 

Region Four and national EPA staffs have been very helpful to us in 

our effort to locate funds. Much of our redevelopment will have to 

be done with grant dollars 

5. Redevelopment already begun: Adjacent to the Superfund site we 

have already built a beautiful community library and restored an 

antebellum house for the housing of our quasi-public agencies. 

These facilities were built and restored using grant dollars without 

the city having to borrow any of the cost. 

Some suggestions: 

1. EPA staff could develop an all-inclusive manual for community 

leaders and citizens that explains the typical process of a 

Superfund project. Using an outside facilitator, there ought to 

be a series of community meetings for information and to 

receive questions. These meetings do not need to be defensive 

sessions for the agencies. Therefore, the answers to questions 

or concerns raised need to be made after the meeting. 

Otherwise people's angry emotions will control the meeting 

making it less productive. 

2. The agency has many different departments. A team of people 

from the various EPA departments needs to be with the 

community periodically to respond to concerns. For example, 

the legal issues with a Superfund site are very important to the 

community especially in redevelopment. When and how should 

legal title to the site be changed? Will there be remediation 

liens placed against the property for the benefit of EPA that 

might inhibit development? When will prospective purchaser 

agreements be available to ensure against later liability for 

historic contamination? Will covenants have to be prepared 

and recorded on the chain of title if some property has 

7 
90 

limitations on future development due to subsurface 

membranes? Therefore, EPA regional legal staff needs to be 

present in the community to help us with the legal issues. 

3. Given the difficulty that some small cities will have with 

redevelopment, see the earlier comments supra, the EPA needs 

to develop more extensive assistance for the third leg of the 

project, redevelopment. The eligibility for assistance either with 

money and/ or from staff could be based upon qualification 

criteria. The costs and difficulties of redevelopment may not be 

any greater in a large city than for us. But there is a great 

difference in our ability to internally finance. 

4. A mandate needs to be established requiring local elected 

leaders to be involved. I cannot imagine that they would not 

want to be, but I understand there are some sites in Region 

Four where they are not involved. 

It ought to standard regulatory procedure that an 

Alliance system, see my discussion supra, be established at all 

Superfund sites. EPA staff should be provided that can enable a 

constructive process over the long period of time. Such an effort will greatly 

facilitate the process and lead to a more successful project. The Woolfolk 

project and our city are very good examples of what can be achieved by 

community building around the task rather than fractured outrages. 

Awards to Fort Valley: 

• Chosen as one of only thirty Cities of Excellence in 

Georgia. 

• Chosen as a "Top City" by a statewide magazine 

publication. 

• Awarded the United States Environmental Protection 

Agency's Region Four Excellence in Site Reuse Award. 

8 
91 

• As just announced, Fort Valley has been named a national 

award winner for "Excellence in Community 

Involvement" for years of collaboration and coordination 

between agencies, including EPA, and the community. 

In Conclusion: On behalf of my city, thank you very much for this 

opportunity to provide this memorandum and to testify. Our experience 

with the United States Environmental Protection Agency has been 

outstanding. I hope that after more than twelve years of experience I have 

been able to provide some useful observations. 

Respectfully submitted, 

Dr. John E. Stumbo, Mayor 

Fort Valley, Georgia 

9 
92 

Senator LAUTENBERG. Thank you. 

I would like to start with my 5 minutes and ask a couple of questions here of those of you here. And one of them, Dr. Porter, is 

money a bad thing to have in the program? 

Mr. PORTER. Absolutely not. You certainly need money. 

Senator LAUTENBERG. I am glad to hear that, thank you, because 

I was not sure where you were going. I know you were critical of 

the funds spent, you were critical of the efforts made. The fact is 

that we were cleaning up sites at a heck of a rate. I am not sure 

you were here then. I do not think so. Did you have a business career before you worked for Government? 

Mr. PORTER. That is right, yes. 

Senator LAUTENBERG. What was that, please? 

Mr. PORTER. Engineering and construction. 

Senator LAUTENBERG. And you were with EPA—— 

Mr. PORTER. From 1985 to 1990. 

Senator LAUTENBERG. From 1985 to 1990. You must have done 

a pretty good job. We were cleaning up a lot of sites. 

Mr. PORTER. Well, a lot of the sites were cleaned up, remember, 

by responsible parties. They were not all cleaned up by the—— 

Senator LAUTENBERG. Yes. What about the orphan sites? 

Mr. PORTER. Yes, well—— 

Senator LAUTENBERG. What do you do about those? How do we 

pay for them? 

Mr. PORTER. You have to pay for them with Federal money. 

Senator LAUTENBERG. You and I and the people in this room. We 

pay for it with Federal money. 

Mr. PORTER. That is because you give $1.2 billion a year. 

Senator LAUTENBERG. Yes, except that more was needed. The 

pace that we had. And how do you dismiss the fact that one site 

took this long, and one site took that long? Does it matter if the 

site was large, deeply contaminated, or one that is almost a 

brownfield? Does it matter? 

Mr. PORTER. Certainly. 

Senator LAUTENBERG. Well, I am pleased to hear you say that, 

because I was not sure where you were going before that. You say 

that you are opposed, oh, I already asked that question. There was 

so much on my mind. 

Ms. Pierson and Mayor Stumbo, it sounds like you created a 

large family circle in that small town of yours. And I think that 

you make a good point about involving the local officialdom and the 

people who have been elected. But getting the people who are affected in the community is a critical, critical issue. 

Ms. Pierson, what kinds of jobs have been created as a result of 

the Superfund clean up in your communities? 

Ms. PIERSON. If you come to our neighborhood now, you will, 

with two active Superfund sites and a neighborhood that is the recipient of stimulus funds for housing, you will see jobs on the 

ground going on all over the place, almost in every block. So, there 

are the construction jobs. 

But there are also the Government jobs, there are the consultant 

jobs, there are the engineer jobs, there are the community liaison 

jobs. So, certainly, in a time where the middle class is hurting in 
93 

addition to the low income communities, the jobs that cleaning up 

Superfund sites creates are most needed. 

Senator LAUTENBERG. Ms. Gibbs, thank you for your persistence 

in trying to help other people because of your own experience. How 

much can it be worth to take care of children, to prevent them from 

that kind of exposure? You know, you have been there, you have 

seen it from the beginning. What are the costs of failure to clean 

up sites in terms of healthcare, lost productivity, and other consequences? 

Ms. GIBBS. The costs are huge to not do anything or to, which 

has been happening because of the constraints on the money, is to 

do a Band-Aid-on-cancer type approach. So, I mean, if you look at 

the community I am talking about here, those families are exposed 

to chemicals that bother their ability to learn. Now, these children 

may not be able to learn. Their school, there are other schools on 

top of the plume, too. It just has not reached the capacity to be 

closed. 

So, now these children cannot reach their mental capacity. So, 

they may have been an airplane pilot, or they may have been a 

doctor or a lawyer. My goodness, they might have even been a politician. But going to the school and living in a community that 

causes them to miss school because they cannot breathe with asthma or to have learning disability has far reaching—I do not think 

anybody can sort of get their arms around the cost of that. And 

that is the financial cost. 

I guess one of the points I was trying to make is that we have 

got to look beyond finances. To live in a community day after day, 

you worked your whole life—your whole life—for that house, for 

that car, for that kid who would go to college. And now your child 

cannot breathe, your child cannot learn, your house is worthless. 

I mean, it is just the emotional costs. You just cannot put dollars 

and cents on it. 

And I do want to add one thing that I think you have been saying, Senator Lautenberg, which is that people in these communities 

are paying with their health, they are paying with every penny 

they have of personal cash, and they are paying to clean up the 

sites because the taxpayers right now are paying. So, they are paying for EPA to come in and do a half-built job to clean up the sites. 

So, they are paying and they are paying and they are paying and 

they paying and they are paying, and they are not people who have 

lots of money. They are hardworking, churchgoing, law abiding 

folks. They are paying not only for their own clean up, but they are 

paying for the clean up in Georgia, they are paying for the clean 

ups in New Jersey, they are paying. And this is just unfair. 

Senator LAUTENBERG. Thank you. 

Senator Inhofe. 

Senator INHOFE. Thank you, Mr. Chairman. 

I have to say this, Mayor, I was listening to you. That is exactly 

what happened to me. When we first went in there, they had been 

working on that Superfund site called Tar Creek for 20 years. They 

poured, I cannot tell you how much, I used to know how much 

money they paid. But we had little groups against different types 

of resolution to the problem. They had never been in the same 

room before. I forced them into the same room, and it ended up 
94 

being, to this very day they are very close, personal friends, and 

the problems have been resolved. 

I had the same problem with the bureaucracy in Washington. 

They, we had the DOI, the DOJ, the Corps of Engineers, the EPA, 

none of them would talk to each other. And I got them in my office, 

too. So, we experienced the same thing that you did. 

Dr. Porter, you heard me tell this story, and I am just going from 

memory, on the Bossier City case. Now, you were there during 

parts of the Reagan and Bush I administrations. Is that correct? 

Mr. PORTER. That is correct. 

Senator INHOFE. That is the earlier years of this program. 

Mr. PORTER. Yes. 

Senator INHOFE. Did you have many cases like that? As I recall, 

just from reading about it at that time, I was not here, that when 

you had someone who was a polluter and was willing to clean up 

the pollution, and that was acceptable by the various levels of government, local and State government, they did it. There was more 

of a propensity for them to clean up at that time, was there not? 

Mr. PORTER. That is right. 

Senator INHOFE. Can you think of some cases, when, do you remember that, was it during the time that you were working there, 

that the EPA would deny them that opportunity, even if they had 

the support of the local governments? 

Mr. PORTER. Well, they certainly did not do it during my day too 

much because one of my major thrusts was that I wanted the responsible party to pay and to do the work. I used to, I do not need 

to teach DuPont how to do engineering, or Exxon, or any other 

large company. We needed to push on them hard. And so what we 

did is, I remember telling the folks at Love Canal, to Occidental, 

that, you know, the train has left the station. You can either pay 

for it, or we are going to pay for it and come after you. So, they 

ended up paying a lot of money and so forth to do it. 

I think it is, you make a good point, because there is another 

thing that has been done now that is even more creative, I think, 

than in the mid-1990s, and that is they are beginning to come after 

companies and saying, if you will clean this site up to the Superfund standards, we will not even put it on the Superfund list. I 

think that is probably the best of all worlds. 

There is a lot of bureaucracy in the Superfund, a huge amount 

of bureaucracy and so forth. So, one of the hammers, so-called, was 

to tell people if you will clean it up yourself, and we certainly, we 

are going to come after you anyway, we will keep you off the list 

if you will meet the same criteria. 

So, I think that is the best way to do it. I have certainly seen 

cases where people, where the Government, not too often anymore, 

simply will not let people clean it up. They are willing to—— 

Senator INHOFE. And there can be a huge differential in the 

costs, the ultimate costs. Now you, in your written testimony, 

talked about the culture of completion. You briefly addressed that 

in here vocally. Is there anything you wanted to, I am not sure I 

quite understand what that is. 

Mr. PORTER. Well, what I think, and I worked a lot with the Department of Energy, the Department of Defense, and of course EPA 

and private parties on the Superfund for a long time with my 
95 

thrust trying to be let us clean the sites up. I will yield to no one 

in terms of trying to get results. I want to clean the sites up, 

maybe almost to a fault. 

What I invented a while back was the term called, we need a culture of completion, which the Mayor has talked about and others. 

We are going to finish this site, and we are going to set deadlines, 

and we are going to stick the deadlines, and we are going to do it, 

as opposed to what we have now to some extent, which is what I 

call a culture of deliverables. 

That means you have 20 reports at every Superfund site, roughly 

20 reports, work plans, all kinds of things. EPA will pay $100,000 

to a contractor to review a work plan of another contractor, and 

they will create 300 pages of comments which work cannot even 

start until that is finished. 

So, what I am trying to promote a little bit if I can is rather a 

culture of delivering, just saying well, if I do all these reports the 

site will magically be finished; no, it will not be magically finished 

until you push very hard to do it. So, what I am trying to create 

or help create is a culture of completion where from like Mathy on 

down we want to finish these sites as opposed to saying, if we had 

more money, if we just do more things. I am seeing $20 million and 

$30 million and $40 million studies these days. Not the actual 

clean ups. The studies are $20 million and $30 million and $40 million. I just think that is unconscionable. 

Senator INHOFE. Yes, well, and I agree. And that is what I 

thought it was. And that is the reason that on the cases that we 

are familiar with in years past, there were, they just kept going on 

and on and on, and we would get reports back, and you could just 

tell that money was being spent when it could have been much 

more efficient. 

And there is a basic concept here, too, and that is, you know, is 

Government more efficient as a general rule than the private sector, and there is a difference right here at this table. 

Do you know, do you think there are many more Superfund sites 

to be discovered? 

Mr. PORTER. Yes, I think there are. But I am not one who believes there are thousands of more sites out there or maybe many 

hundreds. I think that one of the good things about Superfund, we 

have screened through tens of thousands of sites. To get down to 

the 1,500, we have probably looked at 40,000 or 50,000 over the 30- 

year period. And I think we have done a pretty good job of finding 

the worst sites. There will be more, but I do not believe there will 

be a whole lot more. 

And I also would add that we have many other programs now. 

We have the brownfields program, every State has its own Superfund program, various Federal agencies have their own programs. 

Most State programs clean up sites faster than the EPA because 

they do not have the bureaucracy and so forth. 

I used to say, not long ago, to people, it is not the honor it used 

to be to be a Superfund site. People do not necessarily want to be 

a Superfund site. They know it is a long, drawn out process. So, 

if we have got another way to clean it up other than Superfund, 

that is not bad either. 
96 

Senator INHOFE. Well, you know, as a general rule, and I know 

there is disagreement probably at this table here, but I look at the 

Mayor, and I have got to tell you, Mayor, I had a hard job one time. 

I was the mayor of a city. If you are mayor, there is no hiding 

place, and I have often lived by the axiom that the closer the level 

of government to the people, the more efficiency, the more efficient 

it is. I still believe that. 

Thank you, Mr. Chairman. 

Senator LAUTENBERG. Thanks. 

Dr. Porter, you were here until 1991? 

Mr. PORTER. From 1985 until sometime in 1989, a little bit into 

Bush I. 

Senator LAUTENBERG. In 1989. And you have kept an eye on 

EPA since that time because you have seen all the mismanagement, the mistakes. How about, does the management of the Agency matter as to how the Agency functions at all? 

Mr. PORTER. Absolutely. In fact one of the people I am the most 

laudatory of happens to be a member of the Clinton administration. 

I have tried to be bipartisan in this. I think everybody that has had 

my old job has done generally a good job. But there is always room 

for improvement. 

And just to take, you are talking about the 80 sites per year 

cleaned up in the 1990s, that was largely a fellow name Tim Fields 

who is a very good engineer who used to work for me. He was appointed by the President to that job. And he, unlike some of the 

Assistant Administrators, took direct responsibility for many of the 

sites. 

Senator LAUTENBERG. We are not going to go through an exercise 

of who was at fault. You were at fault in some way. You did so well 

in cleaning up. So what happened? Do you mean after you left 

things fell apart? 

Why was the funding, as it existed, the polluter pays, do you 

know why it was terminated? 

Mr. PORTER. I do not think polluter pays was terminated. I think 

the goal is still to go after people who do the pollution if you can 

find them—— 

Senator LAUTENBERG. Yes, well what about the orphans? How 

should we have handled this? 

Mr. PORTER. You have to deal with the orphans with some type, 

usually, of Federal money. You appropriate money each year. And 

I am not saying there should not be more money. In some ways, 

if you can identify specific sites—— 

Senator LAUTENBERG. Well, I think that is what you said. 

Mr. PORTER. But not just adding to the overhead. 

Senator LAUTENBERG. I think that is what you said. 

The Committee recently passed, Ms. Pierson, a Cleanfields Investment Act of which I was the author, to provide grants to clean 

up properties that are less polluted than Superfund sites and place 

renewable electricity facilities on those sites. Would something like 

this be of benefit in a community like Camden that is so desperate 

for jobs, so desperate for improvement? Can we get any value out 

of something like that? 

Ms. PIERSON. I just recently heard about your Cleanfields and 

will look at that more. We are excited to know that. Everyone real-
97 

izes this is still a problem. We are excited to know that people are 

introducing solutions, and from what I know so far it sounds like 

a very good program to help us. 

Senator LAUTENBERG. Yes, thanks. I was kind of fishing for an 

answer there, and I—just to make the point that jobs are available, 

and we should look at that side of things. 

Dr. Porter, you offer some constructive advice on how to improve 

the efficiency of the Superfund program. But you advocate taking 

expected land use into account in deciding the level of clean up for 

a site, arguing it does not make sense to require the same level of 

clean up for a factory as it does for a daycare center. Does that not 

fail to take into account that land use can change over time? 

Mr. PORTER. Absolutely. And what I would say is, you want the 

site to always be safe. If the land use changes you might have to 

change what you did there. I mention the site out in Colorado 

again, the Rocky Mountain Arsenal. When they turned it into a 

wildlife refuge they did something quite different than when they 

were planning on subdivisions there. But they have to go back and 

deal with that again if subdivisions do occur. 

Senator LAUTENBERG. What we are going to do is we will keep 

this record open so that members of the Committee can submit 

questions in writing. And I would ask that if you do get any questions that you issue a prompt response, no longer than 10 days 

after you have gotten the inquiry. 

I thank each of you for your contribution, and we will go on from 

here. And I will continue to fight to make sure that polluters pay 

for the work that they did. I ran, as I mentioned, a big company. 

And I know that we had a responsibility for everything we did. And 

when I was asked whether I would terminate somebody in the company for a relatively minor thing, I said no, because we had thousands of employees, thousands of customers, thousands of shareholders. And you have got to think about the community at large. 

And one of the things that upsets me terribly is how corporate 

behavior, getting away from Government, can misbehave. And I am 

on the board of the Columbia University Business School, my alma 

mater. And in 2001, when I left the Senate for a couple of years, 

I founded a Chair in Corporate Governance and Business Ethics. 

And boy, I want to see it returned. 

Thank you all very much for being here today. 

[Whereupon, at 4:13 p.m., the Subcommittee was adjourned.] 

[Additional material submitted for the record follows:] 
98 

SUPERFUND SETTLEMENTS PROJECT 

Why the Superfund Taxes 

Should Not Be Reimposed 

Before the Subcommittee on Superfund, Toxics and Environmental Health 

of the Senate Committee on Environment & Public Works 

July 6, 2010 

Superfund Settlements Project 

c/o Morgan, Lewis & Beckius LLP · 1111 Pennsylvania Avenue, N.W Washington, D.C. 20004 

Telephone 202.739.5141 ·Fax: 202.739.3001 
99 

Table of Contents 

Executive Summary ............................................................................................ 2 

Overview ............................................................................................................... 3 

Introduction ............................................................................................................ 4 

Appropriations- Not Taxes- Control the Level of EPA Activity ........................... 6 

Why Fewer "Construction Completions"? ..... . 6 

Manpower and Funding Have Remained Stable .............................................. 9 

No Persuasive Rationale Exists for Reimposing the Superfund Taxes ............. 11 

The Original Expectation That EPA Would Perform Most Cleanups is No 

Longer Valid.... .. . . .. .. . . .. . . . . . . . . . . . . .. . . .. . . . . . . . .. . . .. . .. .... 11 

Companies Responsible for Contamination are Paying for 

Remediation Site by Site .... .. ............... 14 

The Superfund Taxes Are Not Required to Implement the "Polluter Pays" 

Principle.. .. .. . . .. .. .. .. .. .. . . ... 16 

Most of the Money that Congress Appropriates for Superfund Is 

Not Used to Clean Up NPL Sites ..................................................................... 17 

Superfund Should Run on Appropriations from General Revenues .............................. 21 

Superfund Has Accomplished Most of its Original Mission ..... ......................... 21 

Superfund Has Been an Extremely Costly Program...................... .. 22 

Most Superfund Sites No Longer Present Any Immediate Risk 

to Human Health or the Environment .. .. .. .. .. .. .. .. .. . . .. .. 23 

State Programs Now Normally Provide a Viable Alternative . .. . 24 

Conclusion .................................................................................................................... 25 
100 

To the Members of the Subcommittee: 

The Superfund Settlements Project ("the Project") appreciates the opportunity to 

share its perspective on the idea of reimposing the Superfund taxes. The Project is a 

not-for-profit association of major companies from various sectors of American industry. 

It was organized in 1987 in order to help improve the effectiveness of the Superfund 

program by encouraging settlements, streamlining the settlement process, and reducing 

transaction costs. 

The Project's members share an extraordinary degree of practical, hands-on 

experience with the Superfund program. They have been involved at literally hundreds 

of Superfund sites across the country over the last 25 years. Representatives of the 

Project have testified before Congress on many occasions regarding various aspects of 

the Superfund program. The Project has also played a leadership role in the national 

policy debate over many Superfund issues, and has been a strong supporter of EPA's 

Superfund Administrative Reforms since they were announced in 1995. 

Collectively, the Project's members have spent well over six billion dollars on site 

cleanups and site studies since 1980. That spending covered not only the companies' 

own shares of liability, but also sizeable "orphan" shares attributable to other parties 

that were defunct, insolvent, or otherwise unable to pay their fair shares. On top of that, 

these companies also paid hundreds of millions of dollars in Superfund taxes during the 

first 15 years of the program's life. All told, these companies have already paid far more 

than their actual responsibility for the contamination at these sites. Reimposing the 

taxes now would be unjust. as well as unnecessary. 
101 

Why the Superfund Taxes Should Not Be Reimposed 

Executive Summary 

• Taxes do not control the Superfund budget or the pace of EPA activity. On the 

contrary, the Superfund budget, which is set by Congress each year through the 

appropriations process, determines the pace of EPA activity. 

• Most cleanups at NPL sites- roughly 70% are performed by PRPs, not by EPA. 

• The Superfund taxes are not needed to maintain the "polluter pays" principle, because 

the companies formerly targeted by those taxes have already paid their full share of 

cleanup costs. 

• The companies formerly targeted by the Superfund taxes paid for Superfund not once, 

not twice, but three times. As PRPs, they paid directly to study, clean up and 

reimburse federal and state government for overseeing cleanup at the sites they 

contaminated. As relatively deep pockets, they paid again by absorbing the "orphan" 

shares of many exempt, defunct, and unknown parties at these same sites. And as 

corporate taxpayers from 1986 to 1995, they paid yet again. 

• Only about one-fourth of EPA's Superfund appropriation is spent on cleaning up NPL 

sites. 

• EPA spends its Superfund budget on many other things, such as administration; 

management; interagency and intra-agency coordination; research; grants to other 

agencies; public outreach and education; worker training; policy development, review 

and publication; and other support functions. Comparable functions in most other 

federal agency programs are paid for by appropriations from general revenues. 

• Funding decisions on the future needs of Superfund should be made by Congress 

through the normal appropriations process, with funding coming from general 

revenues. There is no persuasive reason why Superfund today should be treated 

differently than other EPA programs, or those of other federal agencies. 

2 
102 

Overview 

It has been suggested in recent years that the Superfund taxes 1 that expired in 

1995 should now be reimposed. The two rationales most frequently offered for this 

suggestion are (1) the need to increase the pace of Superfund cleanups and (2) the 

need to maintain the "polluter pays" principle. 

Neither rationale is persuasive. The Superfund taxes do not control the pace of 

the cleanup program, so reimposing them would not mean faster cleanups. And 

Superfund is already a "polluter pays" program to an overwhelming extent, with or 

without the taxes, so reimposing them would not advance this principle either. 

This written statement explains why reimposing the Superfund taxes would not 

be sound public policy. 

1 There were actually three separate Superfund taxes that expired in 1995: (1) an 

excise tax on petroleum, (2) an excise tax on certain feedstock chemicals, and (3) a 

surtax on certain corporate income. Each tax was described separately in the Internal 

Revenue Code. Some who favor reimposing these three taxes call them the "polluter 

pays fees." U.S. PIRG, "Empty Pockets" 5, 12 (December 2005). But in truth, they are 

taxes, not merely "fees." See Robert M. Steele, The Truth About Superfund Taxes, 

Envtl. & Energy Bus. L. Rep. 4 (Dec. 2006) (ABA), available at 

http://www .abanet. org/buslaw /committees/C L400000pub/newsletter/200612/steele. pdf 

3 
103 

Introduction 

The most fundamental point, and surely the one most subject to widespread 

confusion, is the relationship between the three Superfund taxes and the EPA cleanup 

program. On the one hand, those taxes formerly raised some of the money that was 

deposited into the Superfund Trust Fund2 On the other hand, the Superfund taxes did 

not control the amount of EPA spending for the Superfund program, and they did not 

control the pace of cleanup. 

Specifically, the amount of EPA spending for the Superfund program is 

determined by Congress each year through the appropriations process. EPA receives a 

fixed amount of money for the Superfund program, usually something on the order of 

$1.3 billion per year. This annual appropriation is what determines the level of EPA 

activity. The Superfund taxes, on the other hand, do not. 

Moreover, the original rationale for the Superfund taxes has essentially 

evaporated as the program has evolved over the past quarter-century. In 1980, the 

Superfund taxes could be viewed as an aspect of the "polluter pays" principle. EPA 

would clean up contaminated sites, it was thought, using tax revenues collected from 

those industry sectors believed to have caused much of the contamination. 

2 The term "Trust Fund" is somewhat misleading, because it suggests that money in the 

U.S. Treasury is being set aside to pay for EPA's Superfund program. But the reality is 

quite different. Off-budget trust funds, such as the Superfund, do not represent money 

that is actually "locked up" for a particular purpose. Congress "can raise or lower trust 

fund collections ... or change the purposes for which the collections are used[.] by 

changing existing laws." U.S. General Accounting Office, GA0-01-199SP, Federal 

Trust and Other Earmarked Funds 7 (2001). 

4 
104 

Today, however, the companies that formerly paid the taxes are cleaning up 

most of the sites on the National Priority List ("NPL")3 by themselves. EPA performs 

relatively few NPL cleanups. In fact, EPA spends only about a quarter of its annual 

Superfund appropriation on NPL cleanups 4 

Like many other government programs, Superfund today faces a variety of 

questions regarding its future workload and its funding needs. These include questions 

as to the relative health risks being addressed by Superfund, the efficiency of the 

program, and even its importance relative to many other competing priorities. 5 These 

questions should be addressed through the appropriations process, as is done with 

virtually every other federal program. The resulting appropriation for Superfund should 

be funded from general revenues, again just as is done with virtually every other federal 

program. 

These points are addressed below in greater detail. 

3 The NPL is EPA's list of the contaminated sites that are the highest priority for 

cleanup. 40 C.F.R. Part 300, App. 8 (2009). To date, EPA has listed about 1,600 NPL 

sites. Some sites have been deleted from the NPL following cleanup. Approximately 

1 ,269 sites remain on the list today. 

4 In FY 2009, for example, EPA received $1.285 billion for the Superfund program. Out 

of that total budget, EPA allocated just $267 million- or 20.7%- for "remedial" 

activities, broadly defined. U.S. Gov't Accountability Office, GA0-10-380, SuperfundEPA's Estimated Costs to Remediate Existing Sites Exceed Current Funding Levels 10 

(May 2010). 

5 In FY 2006, for example, Congress appropriated just $973 million for the Food Safety 

and Inspection Service, which protects the consumers of meat, poultry, and egg 

products from potentially fatal diseases that can result from salmonella and other forms 

of contamination, as compared to $1,239 million for the Superfund program. 

5 
105 

Appropriations- Not Taxes- Control the Level of EPA Activity 

The current interest in the Superfund taxes stems from the recent reduction in 

the average number of NPL sites reaching the "Construction Complete" milestone each 

year. It is said that the pace of cleanups is slowing, that the real problem is a lack of 

funding, and that the root cause of this lack is the expiration of the taxes in 1995. 

In order to assess this claim, two important facts must be appreciated. First, the 

reduced number of "Construction Completions" each year is likely attributable to several 

factors that are fundamental to the Superfund program. These factors have nothing to 

do with taxes, and they may also have little to do with funding. This first point is 

addressed below in some detail. 

Second, even if funding is a factor, funding is controlled by appropriations- not 

by the collection of taxes, nor by the amount of money in the Trust Fund at any given 

time. As explained above, the funds available for use by EPA each year depend 

entirely on how much money Congress appropriates. 

Why Fewer "Construction Completions"? 

Turning now to the debate over "Construction Completions," it is a reality that 

EPA's process for investigating and cleaning up an NPL site is exceedingly long. This 

process - referred to as the "remedial pipeline" - was described by Resources for the 

Future in its July 2001 report to Congress (hereinafter "the RFF Report").6 

6 Katherine N. Probst & David M. Konisky, Superfund's Future- What Will It Cost? 

(RFF 2001). The "remedial pipeline" includes remedial investigation, feasibility study, 

remedial design, and remedial action, as well as numerous intermediate steps, draft and 

final reports, and opportunities for public participation. 

6 
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EPA has calculated that the average duration of this process from start to finish 

(not counting post-construction operation and maintenance) is 8.1 years. RFF 

calculated that a more accurate average duration is over 11 years. And even when 

"Construction Complete" is achieved, long years of operation and maintenance still lie 

ahead. 

Thus, the number of sites that reach "Construction Complete" in any given year is 

only one measure of progress, and frequently not even the most useful one. An 

exclusive focus on that single factor can be very misleading. It can actually obscure an 

accurate evaluation of total progress being made, including the full range of 

intermediate and ultimate milestones being reached, at all of the Superfund sites where 

work is underway. 

Superfund in fact has made great progress in cleaning up the NPL. After many 

years of tedious efforts to move sites through the initial stages of the remedial pipeline, 

EPA has achieved "Construction Complete" at more than 1 ,080 NPL sites. With over 

two-thirds of the NPL sites now having accomplished this objective, it should come as 

no surprise that at some point there would be a reduced number of sites reaching that 

particular milestone each year. This reduction in no way suggests that there has been a 

decline in the overall level or pace of cleanup activity across the program. 

Another factor, perhaps less obvious, helps to explain the reduced numbers of 

"Construction Completes." EPA made a deliberate policy choice in the early 1990s to 

focus first on those NPL sites that could be completed relatively quickly- the "low7 
107 

hanging fruit" of the Superfund program and to defer work on many of the larger, more 

complex NPL sites. 

The payoff from this policy choice was record high numbers of "Construction 

Completes" throughout the 1990s. But in a way, EPA was robbing Peter to pay Paul. 

EPA now faces a portfolio of NPL sites that is dominated by larger and more complex 

sites -- and a public that has grown accustomed to those atypically high completion 

rates from the early years. 

The numbers can be looked at in many ways. In the first 20 years of the 

program, 757 sites reached the point of "Construction Complete," 411 of them in the five 

years from 1996 through 2000. Those statistics yield an average of 82 completions per 

year for those five years, but an average of 38 completions per year for the 20-year 

period as a whole. Neither "average" is very meaningful, however, because at any given 

point in time, so much work is being done at so many sites that is just not reflected in 

the number of sites that happen to reach any single milestone in any particular year. 

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108 

Manpower and Funding Have Remained Stable 

A far better indicator of the total amount of work occurring in any single year is 

the total level of EPA manpower and expenditures. Significantly, the number of EPA 

officials and staff working in the Superfund program has remained relatively constant for 

more than a decade. So too has the level of spending. This fact was confirmed in 2005 

by the U.S. Government Accountability Office ("GAO"), which reported that total funding 

for the Superfund and Brownfields programs and the Superfund-related programs of the 

ATSDR and NIEHS, in current year dollars, remained relatively constant from fiscal year 

1993 to fiscal year 2005 7 

In other words, Congress appropriated roughly the same amount of money for 

Superfund in each of those 13 consecutive fiscal years. Moreover, this trend has 

continued since the 2005 finding by GAO, with Superfund appropriations holding steady 

at roughly $1.3 billion from FY 2000 through FY 2009. 

Interestingly, Congress appropriated almost the same amount in FY 1995, the 

last year that the Superfund taxes were still in effect, as it did in FY 2009, nearly a 

decade and a half after the taxes expired. Those amounts were $1.224 billion and 

$1.285 billon, respectively. 

7 U.S. Gov't Accountability Office, GA0-05-746R, Hazardous Waste Programs: 

Information on Appropriations and Expenditures for Superfund, Brown fields, and 

Related Programs 2 (June 30, 2005). 

9 
109 

There is also the matter of inflation. It is true that Superfund, like every other 

government program, is subject to inflation as the cost of goods and services rise over 

time. The FY 2009 Superfund appropriation of $1.285 billion clearly cannot buy the 

same amount of goods and services as, say, the FY 2001 appropriation of $1.270 

billion. But whether inflation helps to explain the reduced average number of 

"Construction Completions" reported in recent years, or whether the reduced totals are 

due more to the greater challenges posted by the NPL sites remaining in the remedial 

pipeline, is a subject on which reasonable people may disagree. 

The key point, however, is that none of these issues is in any way related to the 

Superfund taxes. As previously explained, EPA's expenditures for Superfund are 

controlled by appropriations, and not by taxes. Appropriations, not taxes, are what give 

EPA money to spend for this program. 

We turn now to a brief review of the rationale behind the three Superfund taxes 

and a summary of why that rationale no longer exists. 

10 
110 

No Persuasive Rationale Exists for Reimposing the Superfund Taxes 

The Original Expectation That EPA Would Perform Most 

Cleanups is No Longer Valid. 

When Congress enacted Superfund in 1980, it was widely assumed that EPA 

would perform most of the cleanups, using public funds to pay for them. The prototype 

of a typical Superfund site was visualized as an abandoned dumpsite. 

In that context, imposition of the Superfund taxes seemed a natural mechanism 

to shift financial responsibility for the cleanups back onto the sectors of society that 

were perceived to have largely caused the problem. In the early 1980s, EPA in fact did 

perform most of the investigation and remediation work at contaminated sites. For 

many companies, their tax payments in those years far exceeded their payments for 

work at sites, and EPA used its Superfund budget to clean up many sites that had been 

contaminated mainly by industry. 

During the 1980s, however, EPA began to successfully use the law's Draconian 

liability provisions both to recover EPA's costs from Potentially Responsible Parties 

("PRPs") and, more importantly, to require PRPs to perform cleanup work themselves. 

This evolution in EPA's enforcement approach yielded a much better understanding of 

the problems that gave rise to Superfund sites in the first place. 

As EPA began to identify and confront the responsible parties at sites, it became 

evident that the original assumption that Superfund sites were created by oil, chemical, 

and large manufacturing and service companies was incorrect. In fact, the responsible 

parties include many medium and small businesses and many industrial sectors not 

subject to substantial -or any- Superfund taxation, as well as local and state 

11 
111 

governments, defunct and unidentifiable parties, and, in a surprising number of cases, 

the federal government itself. Indeed, the federal government has been aptly described 

as the biggest polluter of them all. 8 

In 1989, a Senate committee report urged EPA simply to find a few deep-pocket 

PRPs at each site and force them to do the work, using the strong-arm liability power of 

Superfund. At about that same time, EPA issued its "Enforcement First" policy, which 

put the responsibility for investigation and cleanup on industry at every site where PRPS 

could be found, and to reserve the Superfund budget for sites where no PRPs existed. 

EPA's dramatic change in practice was documented in a table printed in the RFF 

Report. 9 From 1980 to 1986, PRPs performed the key RifFS studies at only 24% of the 

sites, and the cleanup remedy at only 33% of the sites. But from 1991 through 1999, 

when EPA's "Enforcement First" policy was in effect, these figures roughly doubled. 

PRPs performed 46% of the RIIFSs, and 73% of the actual cleanups. EPA understood 

that this trend allowed it to leverage its Superfund budget far more effectively, and so 

EPA has worked hard to have PRPs do the work at every site where liable parties can 

be found. 

8 The United States owns and manages half a billion acres of land containing more 

than 60,000 potentially contaminated sites. Federal Facilities Policy Group, Improving 

Federal Facilities Cleanup 17 (October 1995). The government estimates the total 

cleanup cost associated with these facilities to be between $234 billion and $388 billion. 

/d. 

9 Table 3-2, Comparison of Leads for Remedial Pipeline Actions by Time Period 

(Percentage), RFF Report at 43. 

12 
112 

A recent update of the RFF table is reprinted below: 10 

Remedial 

Investigation/Feasibility Remedial Design Remedial Action 

Studv 

Period Fund-Lead PRP-Lead Pund-Lead PRP-Lead Fund-Lead PRP-Lead 

(FYl 

1980-1986 76% 24% 63% 37% 67% 33% 

1987-1990 52% 48% 49% 51% 54% 46% 

1991-1999 54% 46% 28% 72% 27% 73% 

2000-2008 66% 34% 51% 49% 36% 64% 

Table 1: Comparison of Leads tor Remedial Pipeline Actions by Time Period (Percentage) 

As a result of "Enforcement First," nearly every existing large corporation whose 

operations generated contamination has been named as a liable party at nearly every 

NPL site to which it sent waste. At most of those sites, moreover, the PRPs have 

performed the cleanup themselves and have even reimbursed EPA for its oversight 

costs. In a smaller number of cases, most of which predate "Enforcement First," the 

PRPs have reimbursed EPA for its expenditures, including its oversight costs and its 

indirect costs. 

Today, virtually the only NPL cleanups that EPA actually pays for are those 

where no viable PRPs exist- the so-called "orphan" sites. These sites were not 

contaminated by the companies formerly targeted by the three Superfund taxes. 

Instead, these sites were contaminated by companies that are now defunct or insolvent, 

or by other types of generators, such as municipalities. EPA's narrowly limited role in 

10 Table adapted from Martha Judy & Kate Probst, Superfund at 30, 11 Vt. J. Envtl. L. 

191, 215 (2009) (available at http://www.vjel.org/journal/pdfNJEL 1 0117.pdf), and 

printed with permission of the Vermont Journal of Environmental Law. 

13 
113 

paying for cleanups is a fundamental change from the original expectations. It has 

resulted from the tenacious and successful efforts of EPA to implement its "Enforcement 

First" policy. And it has eroded the basic rationale for levying the Superfund taxes in the 

first place. 

Companies Responsible for Contamination are 

Paying for Remediation Site by Site. 

It is sound public policy for the government to place the costs for correcting a 

problem on those who caused it. This often requires discerning judgment to determine 

when it is possible to identify those who have caused a problem and what costs are 

attributable to the problems they have created. 

Today, existing companies whose wastes contaminated sites are being held 

directly responsible for cleanup costs, one site at a time. Through their payments to 

investigate and remediate sites at which they are PRPs, such companies are paying 

their fair share to address the national problem. In fact, a good argument can be made 

that most of them are paying far more than their fair share. That result is due to the joint 

and several liability feature of Superfund. 

At most sites it is impossible to identify the origin of much of the waste, so the 

PRPs that are identified must divide up the total costs among those whose waste was 

identified. This means that each viable PRP typically pays far more than its 

proportionate share of the costs to investigate and remediate the site. 

Another factor that increases each PRP's liability is that usually the allocations of 

responsibility are taking place 30 to 50 years after the waste disposal occurred, and a 

number of the PRPs that were identified no longer exist. The wastes generated by such 

14 
114 

defunct parties are referred to as the "orphan" share. Under joint and several liability, 

the companies still in operation typically pay that share. 

In 1995, EPA partially recognized the excessiveness of that result and agreed to 

absorb part of that cost, but subject to severe limitations. EPA now absorbs part of the 

orphan share in certain settlement agreements, but only up to 25% of the cost of the 

work to be performed under the settlements, and only if that amount can be written off 

against EPA's claim for past costs at the same site. The Agency recognized that these 

constraints meant that responsible parties would still be asked to pay excessive 

sharesn 

At the same time, EPA also committed to join parties in an equitable manner 

rather than focus on a few of the deep-pocket contributors. But a chemical industry 

report documented that EPA enforcement efforts continued to be focused on the larger 

private sector parties alleged to be involved at sites. 12 

In a nutshell, existing large corporations responsible for past disposal of 

hazardous waste are typically required to pay the full costs of cleaning up the sites 

where their wastes were sent- including the "orphan" share of those costs. Under this 

approach, their obligations are discharged in full and then some. Requiring payment of 

11 U.S. EPA, "Interim Guidance on Orphan Share Compensation for Settlers of 

Remedial Design/Remedial Action and Non-Time-Critical Removals" (June 1996). 

12 Chemical Manufacturers Association, "A Chemical Industry Perspective on EPA's 

Superfund Administrative Reforms" (Apri11997). 

15 
115 

Superfund taxes on top of that to pay for cleanups at sites contaminated by others 

would be unjust. 

The Superfund Taxes Are Not Required 

to Implement the "Polluter Pays" Principle. 

From the earliest days of environmental regulation, a fundamental principle has 

been that the polluter should pay the costs of controlling pollution. Recently, this 

"polluter pays" rationale has been advanced to support an argument that the Superfund 

taxes should be reimposed. It does not fit. 

The Superfund taxes are not needed to maintain the "polluter pays" principle 

because, as explained above, Superfund is already overwhelmingly a "polluter pays" 

program. At most NPL sites, responsible parties (private companies, DOD, DOE, etc.) 

pay virtually all the costs themselves. Even at the relatively few sites where EPA pays 

up front, the Department of Justice typically recovers those costs from any viable 

responsible parties. 13 It is usually only at "orphan" sites, where no responsible parties 

exist, that EPA performs cleanups using general revenues. 

As explained above, the companies formerly targeted by the Superfund taxes are 

already paying their share of the costs at the sites where they are responsible parties, 

and they are typically paying more than their fair share of costs at those sites. They 

also paid a large portion of the historic costs of the entire program (through the 

Superfund taxes) for the many years when the taxes were in effect. In other words, 

13 As the Chief of DOJ's Environmental Enforcement Section told a D.C. Bar 

Association symposium, "The funding issue will have no direct impact on enforcement 

of Superfund sites." 24 Hazardous Waste!Superfund Week 151 (April 22, 2002). 

16 
116 

these companies paid three times- once as PRPs to remediate their sites, again as 

the larger solvent parties forced to absorb the orphan shares, and yet again as 

corporate taxpayers to support the general program. They have more than paid their 

fair share. 

Finally, it must also be recognized that there are other important limitations and 

exceptions to the "polluter pays" principle under Superfund. Notably, both Congress 

and EPA have elected to release certain groups of responsible parties from their full 

liability as PRPs, either by providing preferential settlements (as EPA has done in the 

case of municipalities and small private parties) or by granting full exemptions (as 

Congress has done in the case of scrap dealers, certain small businesses, and 

lenders). In many instances the liability of these parties has effectively been shifted to 

the remaining PRPs at the sites. These dynamics have distorted the "polluter pays" 

principle and substituted a "Deep Pocket-Easy Target" policy. It would be unjust to 

compound this distortion of "polluter pays" by reimposing the taxes on a group that has 

paid, and is paying, more than its fair share. 

Most of the Money that Congress Appropriates for Superfund 

Is Not Used to Clean Up NPL Sites. 

The logic that might once have justified imposing the Superfund taxes is that the 

money would be used to remediate NPL sites contaminated by the companies, or at 

least the industry sectors, paying those taxes. As explained above, however, that 

rationale was overtaken by "Enforcement First." 

With private parties performing most of the cleanups at NPL sites over the past 

20 years, EPA performs relatively few of them. We would expect to find this long17 
117 

standing pattern reflected in EPA's budget. and in fact it is. The majority of funds 

appropriated for the Superfund program are not being spent on cleaning up NPL sites. 

This reality has two key features. 

First, the annual Superfund appropriation is immediately reduced each year by 

transfers from the Office of Solid Waste and Emergency Response ("OSWER"), which 

runs Superfund, to other EPA offices that provide indirect support, such as the Office of 

Inspector General, the Office of Research and Development, and the Office of 

Environmental Information. In FY 2003, for example, these transfers to non-OSWER 

components exceeded 30% of EPA's total Superfund appropriation. 14 Thus, much of 

what Congress appropriates each year for Superfund is immediately diverted to EPA 

support offices that are not involved in cleaning up sites. 

Second, of the money that remains within OSWER, only a limited amount is 

actually spent on NPL cleanups. This can easily be seen in the figure reprinted below 

from the RFF Report. In 1999, for example, EPA devoted 40.5% ($622.3 million) of its 

Superfund appropriation to the NPL Remedial Program, most of it for orphan sites. In 

that same year, EPA spent 21.2% of the money ($325.6 million) on program staff, 

management and support; 7.4% ($114.1 million) on program administration, and 6.5% 

($100.5 million) on "other programs and agencies." 

14 Final Report, Superfund Subcommittee of the National Advisory Council for 

Environmental Policy and Technology, at 21 (April2004) (OSWER retained 68% of total 

amount appropriated by Congress for Superfund). 

18 
118 

Figure 1·2. FY 1999 Expenditures for the Superfund Proqrarn 

\Sl mdllonl 

7.4(1/o 

S1re assessn1em 

($57.8 million} 

~~@::.:;:;~~;;:;;;:;1 3.8% 

Total = $1.54 billion 

Rernedi<J! program 

tS-622.3 rn1Bion) 

40.5% 

I .~ .. ··~-.,.,__j 

not :m:bocd 

The situation has not changed greatly over the last ten years. In FY 2002, for 

example, EPA spent even less of its Superfund appropriation - 31% ($415 million)- on 

the NPL Remedial Program. In that same year, EPA spent 22% on program 

management and administration, and 10% on "other."15 More recently, in FY 2009, EPA 

spent just 20% of its total Superfund budget on remedial activities, as previously 

noted . .!§ 

15 U.S. General Accounting Office, GA0-03-850, Superfund Program Current Status 

and Future Fiscal Challenges (July 2003) . 

.1ll U.S. Gov't Accountability Office, GA0-1 0-380, Superfund- EPA's Estimated Costs 

to Remediate Existing Sites Exceed Current Funding Levels 10 (May 2010). 

19 
119 

Importantly, a sizeable share of the Superfund budget is also spent on removal 

actions- 20.7% ($317.8 million) in 1999, for example, and 15% ($200 million) in 2002. 

Like those NPL sties where EPA performs the cleanups, these removal action sites also 

tend to be classic "orphan sites": 

The most common source of sites requiring removal activities cited by the 

regional program managers was a category of "economically marginal" facilities, 

often mom-and-pop operations that cannot afford to meet regulatory 

requirements for handling, storage, and disposal of the hazardous materials with 

which they work. Examples included small electroplating shops, secondary lead 

smelters, and waste oil recycling facilities. 

RFF Report, p. 29. 

In sum, EPA uses its Superfund budget for a variety of purposes. Because most 

NPL cleanups are performed by responsible parties, EPA typically pays for cleanups 

only at "orphan sites," and these costs account for about a quarter of the Superfund 

appropriation. Whether a larger appropriation would produce more cleanups, or faster 

cleanups, can certainly be debated. What cannot be debated, however, is that 

reimposing Superfund taxes would have no such impact because (as explained above) 

the taxes do not control EPA's Superfund budget 

20 
120 

Superfund Should Run on Appropriations from General Revenues 

Virtually every federal government program is funded from general revenues in 

the U.S. Treasury, with actual spending controlled by the congressional appropriations 

process. This mechanism can be cumbersome, but it provides the best opportunity for 

Congress to consider the competing priorities of many different national needs and then 

balance all expenditures against those priorities. 

Whenever a special tax is proposed, one must examine the purpose for which 

the funds will be used, and the rationale for the special tax, to determine whether an 

exception to the general rule is justified. There is no justification today for reimposing 

three special levies on selected categories of industry in order to raise money for 

Superfund. 

The federal Superfund program has been in effect for thirty years. Today, four 

key factors dominate the current state of the program and reinforce the wisdom of 

funding it through appropriations from general revenues. 

Superfund Has Accomplished Most of its Original Mission. 

Without question the biggest impact of Superfund was that its Draconian liability 

provisions focused widespread attention on the potential risks of uncontrolled disposal 

of hazardous waste. That impact drove a transformation of daily practices throughout 

industry, government agencies, and the rest of American society. Moreover, since 

1980, stringent controls have been imposed under RCRA and other federal and state 

programs to prohibit improper disposal, so that new high-risk sites are rare- a dramatic 

contrast to the century before 1980, when there were no controls at all. 

21 
121 

In sum, this national problem of hazardous waste disposal is no longer out of 

control. Superfund is well on its way to cleaning up the sites listed on the NPL, with 

over two-thirds of those sites already "Construction Complete." Superfund has a variety 

of other continuing important functions, but it clearly has completed the biggest 

challenges assigned to it at its creation. 

Superfund Has Been an Extremely Costly Program. 

The total costs of administering the Superfund program have been huge. To 

date, Congress has appropriated some $35 billion for Superfund, and responsible 

parties have spent many billions more. 

From the outset Superfund has functioned with elaborate administrative 

procedures and costly standards. It soon became notorious for its enormous 

transaction costs. Despite numerous efforts at reform, it continues to be a very 

expensive and very inefficient mechanism for addressing contaminated sites. There are 

some sites where that approach may be needed, either because of the absence of 

alternatives or due to special circumstances, but serious questions are raised as to how 

many sites should be managed in the future through this exceedingly costly and slow 

program. 

22 
122 

Most Superfund Sites No Longer Present Any Immediate Risk 

to Human Health or the Environment. 

The most fundamental question in evaluating the priority of contaminated sites 

today is whether they present any immediate risk. In overwhelming numbers, the 

answer to that question today is "no."17 

"Potential risk" or "future risk" is another story. The contamination at many sites 

is sufficiently serious that, if neglected, it could cause problems at some point in the 

future. 18 But in most cases those potential risks have already been brought under 

control through existing remedial measures, or can be with moderate activities and 

reasonable care. It is rare indeed today to "discover" a new site with risks that are truly 

imminent. These circumstances do not suggest that strong governmental programs will 

not be required for far into the future, but they do affect the scale and priority of those 

needed efforts. 

17 As of September 30, 2009, EPA reported that 1,320 NPL sites (more than 83% of the 

total) had achieved the Environmental Indicator for "human exposure under control," 

meaning that no unacceptable human exposure pathways exist and EPA has 

determined that current conditions are under control sitewide. See 

http://www.epa.gov/superfund/accomp/ei/ei.htm#sitewide 

18 The Sierra Club has claimed that "hundreds of Superfund sites pose threats to 

people's health" because they have not yet achieved EPA's Environmental Indicator for 

"human exposure under control." See "Superfund's 25th Anniversary" (December 

2005.). But not achieving this Environmental Indicator does not necessarily equate to 

risk. Under EPA's definition, even the mere "possibility . .. that humans may come into 

contact with the contaminated media" keeps a site from meeting this Indicator. So the 

sites that do not yet meet this Indicator may not "pose threats" to anyone. 

23 
123 

State Programs Now Normally Provide a Viable Alternative. 

During the past two decades, virtually all states have enacted legislation and 

have established programs to manage the cleanup of contaminated sites. 19 The 

overwhelming majority of America's contaminated sites are in fact now being managed 

by those state programs. As the emphasis has recently increased on returning sites to 

productive use, states and local governments closer to the plans and needs of local 

communities may be better able to manage growing numbers of such sites in the future. 

The point here is not that states should pay for all, or even most, of these cleanups, but 

rather that states should manage the process through which the PRPs pay for them. 

These four key factors affecting Superfund today implicate the same sorts of 

balancing questions that are raised by other federal programs and are routinely 

addressed through the annual appropriations cycle. These are questions of relative 

need and relative urgency. These are also questions that Congress deals with every 

single day. There is simply no reason to single out the Superfund program by levying 

additional taxes. 

19 Environmental Law Institute, "An Analysis of State Superfund Programs: 50-State 

Study, 2001 Update" (2002). 

24 
124 

Æ 

Conclusion 

In conclusion, several factors combine to reinforce the view that reimposing the three 

Superfund taxes would be bad public policy: 

Taxes do not control the Superfund budget or the pace of EPA activity. On the 

contrary, the Superfund budget, which is set by Congress each year through the 

appropriations process, determines the pace of EPA activity. 

Most cleanups at NPL sites- roughly 70%- are performed by PRPs, not by EPA. 

The Superfund taxes are not needed to maintain the "polluter pays" principle, 

because the companies formerly targeted by those taxes have already paid more than 

their full share of cleanup costs. As PRPs, they paid directly to study, clean up and 

reimburse federal and state government for their costs to oversee cleanup at the sites 

they contaminated. As relatively deep pockets, they paid again by absorbing the 

"orphan" shares of many exempt, defunct, and unknown parties at these same sites. 

And as corporate taxpayers up until1995, they paid yet again. 

A small fraction of EPA's Superfund appropriation is spent on cleaning up NPL 

sites. EPA spends its Superfund budget on many other things, such as administration; 

management; interagency and intra-agency coordination; research; grants to other 

agencies; public outreach and education; worker training; policy development, review 

and publication; and other support functions. Comparable functions in most other 

federal agency programs are paid for by appropriations from general revenues. 

Funding decisions on the future needs of Superfund should be made by 

Congress through the normal appropriations process, with funding coming from 

general revenues. There is no persuasive reason why Superfund today should be 

treated differently than other EPA programs, or those of other federal agencies. 

25