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S. HRG. 107–1007

SUPERFUND PROGRAM: REVIEW OF THE EPA

INSPECTOR GENERAL’S REPORT

HEARING

BEFORE THE

SUBCOMMITTEE ON SUPERFUND, TOXICS, RISK,

AND WASTE MANAGEMENT

OF THE

COMMITTEE ON

ENVIRONMENT AND PUBLIC WORKS

UNITED STATES SENATE

ONE HUNDRED SEVENTH CONGRESS

SECOND SESSION

ON

JULY 31, 2002

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

(

COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS

ONE HUNDRED SEVENTH CONGRESS

SECOND SESSION

JAMES M. JEFFORDS, Vermont, Chairman

MAX BAUCUS, Montana

HARRY REID, Nevada

BOB GRAHAM, Florida

JOSEPH I. LIEBERMAN, Connecticut

BARBARA BOXER, California

RON WYDEN, Oregon

THOMAS R. CARPER, Delaware

HILLARY RODHAM CLINTON, New York

JON S. CORZINE, New Jersey

BOB SMITH, New Hampshire

JOHN W. WARNER, Virginia

JAMES M. INHOFE, Oklahoma

CHRISTOPHER S. BOND, Missouri

GEORGE V. VOINOVICH, Ohio

MICHAEL D. CRAPO, Idaho

LINCOLN CHAFEE, Rhode Island

ARLEN SPECTER, Pennsylvania

PETE V. DOMENICI, New Mexico

KEN CONNOLLY, Majority Staff Director

DAVE CONOVER, Minority Staff Director

SUBCOMMITTEE ON SUPERFUND, TOXICS, RISK, AND WASTE MANAGEMENT

BARBARA BOXER, California, Chairman

MAX BAUCUS, Montana

RON WYDEN, Oregon

THOMAS R. CARPER, Delaware

HILLARY RODHAM CLINTON, New York

JON S. CORZINE, New Jersey

LINCOLN CHAFEE, Rhode Island

JOHN W. WARNER, Virginia

JAMES M. INHOFE, Oklahoma

MICHAEL D. CRAPO, Idaho

ARLEN SPECTER, Pennsylvania

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CONTENTS

Page

JULY 31, 2002

OPENING STATEMENTS

Baucus, Hon. Max, U.S. Senator from the State of Montana .............................. 32

Letter, Helena site cleanup ............................................................................. 33

Boxer, Hon. Barbara, U.S. Senator from the State of California ........................ 1

Article, Florida Superfund Site, New York Times ......................................... 119

Clinton, Hon. Hillary Rodham, U.S. Senator from the State of New York ........ 34

Carper, Hon. Thomas R., U.S. Senator from the State of Delaware ................... 12

Corzine, Hon. Jon S., U.S. Senator from the State of New Jersey ...................... 19

Crapo, Hon. Michael D., U.S. Senator from the State of Idaho ........................... 13

Inhofe, Hon. James M. Inhofe, U.S. Senator from the State of Oklahoma ......... 4

Jeffords, Hon. James M., U.S. Senator from the State of Vermont .................... 29

Smith, Hon. Bob, U.S. Senator from the State of New Hampshire ..................... 6

Chronology ........................................................................................................ 6

Letter, Superfund cleanups ............................................................................. 8

WITNESSES

Horinko, Marianne Lamont, Assistant Administrator, Office of Solid Waste

and Emergency Response, U.S. Environmental Protection Agency ................. 23

Charts ................................................................................................................ 40

Prepared statement .......................................................................................... 36

Responses to additional questions from Senator Jeffords ............................. 42

Nelson, Hon. Bill, U.S. Senator from the State of Florida ................................... 14

Tinsley, Nikki, Inspector General, Office of the Inspector General, U.S. Environmental Protection Agency .............................................................................. 22

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

Torricelli, Hon. Robert, U.S. Senator from the State of New Jersey ................... 16

ADDITIONAL MATERIAL

Letters:

To Rep. John Dingell ........................................................................................ 44

To Superfund Program Managers.................................................................. 81–119

Statements:

Durbin, Hon. Richard J., U.S. Senator from the State of Illinois ................ 9

Kennedy, Hon. Edward M., U.S. Senator from the Commonwealth of

Massachusetts ............................................................................................... 29

Kerry, Hon. John, U.S. Senator from the Commonwealth of Massachusetts ................................................................................................................ 30

Tables, Superfund Cleanup Program...................................................................... 47–80

(III)

(1)

SUPERFUND PROGRAM: REVIEW OF THE EPA

INSPECTOR GENERAL’S REPORT

WEDNESDAY, JULY 31, 2002

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

MANAGEMENT, Washington, DC.

The subcommittee met, pursuant to notice, at 10 o’clock a.m. in

room 406, Dirksen Senate Office Building, Hon. Barbara Boxer

(chairman of the subcommittee) presiding.

Present: Senators Boxer, Inhofe, Crapo, Carper, Corzine, and Jeffords (ex officio).

OPENING STATEMENT OF HON. BARBARA BOXER,

U.S. SENATOR FROM THE STATE OF CALIFORNIA

Senator BOXER. The subcommittee will come to order.

Welcome, Senator Inhofe.

We will be having colleagues who are very interested in the Administration’s proposal on Superfund coming here this morning.

Their names are up—Senators Kerry, Schumer, Nelson, and

Torricelli. Because this is the last week we’re here, everybody is

being pulled in many different directions, so I thought I would hold

a hearing today that would accommodate colleagues as best as possible, so what I’ll do is—Senator Inhofe, are your time constraints

major at this point?

Senator INHOFE. No.

Senator BOXER. OK. Then I’ll give my brief statement, then I’ll

call on you to give yours, and then what we’ll do is we will, as colleagues come in, we will permit people who are speaking to complete and we’ll go to the colleagues. It is going to be a little bit

flexible this morning.

Today the Superfund Toxics, Risk and Waste Management Subcommittee will conduct its second oversight hearing into the Superfund program at the Environmental Protection Agency. The focus

of this hearing, from my perspective, will be on the continued

threats to the Superfund program recently documented in a report

by the Inspector General’s Office of the Inspector General of the

EPA.

Why does the health of the Superfund program matter so much?

The Superfund program is critically important because these toxic

sites threaten the health and well-being of every community where

they are located. The number of people affected by Superfund sites

is surprisingly high. There are over 1,200 national priority SuperVerDate 11-MAY-2000 15:18 Aug 03, 2004 Jkt 000000 PO 00000 Frm 00005 Fmt 6633 Sfmt 6633 83719 SENENV1 PsN: SENENV1
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fund sites. You can see them. One in four Americans, including ten

million children, live within four miles of a Superfund site.

Why is it important to note that 10 million children live there?

We know that children are much more vulnerable to these kinds

of toxics. The proof is in on that.

California has about 100 sites and ranks No. 2, second only to

New Jersey in the number of toxic sites. Over 40 percent of Californians live within four miles of a Superfund site.

The health effects of these sites are very real. Superfund sites

contain hazardous materials like arsenic, lead, mercury, even agent

orange. The Agency for Toxic Substances and Disease Registry reports that living near a Superfund site is associated with increased

birth defects, low birth weight, changes in pulmonary function,

neurological damage, and leukemia.

For months, we have been seeking information on the state of

the Superfund program. I convened the first oversight hearing on

Superfund in this subcommittee because it has quickly become

clear that the very foundation of this program is being undermined.

The raw numbers of sites being cleaned up and projected for cleanup looks bleak.

To try and get some answers, the chair and ranking members of

the full committee and this subcommittee sent an information request to EPA on March 8th. Unfortunately, we have yet to receive

a complete response to our request. Senator Jeffords and I sent a

second request. Senator Chafee and I sent a third request. This has

been necessary due to enormous gaps in the information provided

to us by the Environmental Protection Agency.

EPA’s responsibility to provide requested information to this

committee is clearly not a partisan issue. There has been a great

reluctance on EPA’s part to share information with this oversight

committee and with the public. In fact, nearly every document

shared with this subcommittee has been marked ‘‘privileged.’’ We

even have received blank pieces of paper marked ‘‘privileged.’’ The

emphasis on secrecy where the public right to know is so clear is

extremely disturbing. We even had documentation at the last hearing that the home office here sent a note out to the regional offices

not to answer any questions at all on Superfund, but rather to get

them to the PR people to handle. Well, this isn’t a PR issue; this

is a public health and safety issue. It’s a children’s health issue.

And it’s just not going to wear well with this subcommittee and

this full committee if we can’t get the information, regardless of

what side of the fence we are on on Superfund.

After months of negotiation, EPA has agreed to more fully respond to our information request. If they mean it this time, they

should provide those documents to me next week. We have made

every effort to obtain cooperation from EPA without issuing a subpoena, but time is running out.

I reviewed the Inspector General’s report with great interest because it provided some of the answers we have been looking for on

how the slow-down of the Superfund program is affecting local communities. These communities surely have a right to know and to

weigh in if cleanups of their site are in jeopardy.

3

The Inspector General surveyed the regions and came up with

evidence of a growing backlog in this program. I want to commend

the Inspector General for her efforts.

EPA has recently moved money from other sites to partially fund

a few of the sites in the Inspector General’s report, but let me

stress the majority of the sites that were going to be cleaned remain unfunded. Millions of dollars worth of work that the regional

offices requested may still go undone this year, alone.

A question I will ask today is: what States will suffer because

funds are not available for their sites? And remember, when you

take money from other sites in the country, those sites are going

to be short money. So now we are in a situation where they are

robbing Peter to pay Paul to take a little heat off of them, and

what’s going to happen when those other sites need the funding?

We’re going to be back in a circular problem.

So many of the sites have waited so long that even the remedy

may no longer fit, and so when you delay you’re going to wind up

costing more time and more money. In fact, I just learned that the

chemical insecticide site in New Jersey, which was the subject of

our last oversight hearing, not only hasn’t received any funds, but

seems to be leaking into the back yards in a residential neighborhood once again. This site has severe contamination, including

agent orange, arsenic, and dioxin. There is apparently—and this is

new information—a strong chemical odor in the stream that runs

from the site—this is new—because of these delays.

The temporary cap that was placed on may have reached the end

of its life. Public health may well be threatened again. The Superfund program must address this site and others like it.

A key to restoring the program is to put it on solid financial

ground. We need the support of this Administration. Senator

Chafee and I have a bill for our renewal of the polluter fee, the polluter tax. This is another example of corporate responsibility run

amuck.

The bottom line, as my mother used to say to me, is: ‘‘Gotta

cleanup your room. You made the mess, you’ve got to clean it up.’’

The same thing must apply to these companies. And we give them

a break. Some of them are terrifically innocent of any problem.

They get a fee, a fund. It’s very small, if you look at the numbers—

a percentage of their annual budget—and they get certain liability

waivers because of it. It is a good, solid program. My understanding is this is the first Administration never to support this

fund. That goes for the Republican Administrations, that goes for

Democratic Administrations. We don’t hear any encouraging word.

As a matter of fact, in the budget it is specifically stated that they

do not support the tax.

So bottom line is we have a way to solve the problem. Let’s do

it together. We have a bipartisan bill, Senator Chafee and I, to get

this polluter fee back in play. We need the help of the Administration. Certainly the Environmental Protection Agency shouldn’t turn

into the Environmental Pollution Agency. That isn’t what their job

is.

We’ve got heartache out there in the countryside, and some of

those people are here today, because, A, they’re not sure if they’re

going to be cleaned; B, they think they’re not; C, the Inspector GenVerDate 11-MAY-2000 15:18 Aug 03, 2004 Jkt 000000 PO 00000 Frm 00007 Fmt 6633 Sfmt 6633 83719 SENENV1 PsN: SENENV1
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eral has issued this report that’s pretty detailed; D, the EPA’s response to the newspaper articles is to shove a few dollars from

other projects into some of these projects, but they still leave most

of them unattended.

So I say that this Administration needs to step up to the plate.

They will find tremendous cooperation from this committee, and I

think the people in our country deserve no less.

What I’m going to do is call first on Senator Inhofe, Senator Carper, then Senator Nelson.

OPENING STATEMENT OF HON. JAMES M. INHOFE,

U.S. SENATOR FROM THE STATE OF OKLAHOMA

Senator INHOFE. Thank you, Madam Chairman.

I think that the record needs to be set straight on a number of

fronts, including funding. It is industry, not the EPA, that has been

funding the vast majority of the cleanups. Over 70 percent of the

site cleanups have been conducted and paid for by private parties.

Now, I think your mother would be pleased to know that they’re

cleaning up their own rooms.

The law puts the burden of paying for cleanup squarely on the

responsible parties. The trust fund only bears the cost of cleanup

when no responsible party can be found or where Congress has exempted the responsible party, such as they exempted a responsible

party in South Dakota.

In the 7 years since Superfund tax has expired, responsible parties continue to pay for all cleanup costs at their sites and reimburse the EPA for its oversight of the cleanup. Last year the EPA

collected a record $1.7 billion in cleanup funds from responsible

parties, more than EPA spends for Superfund each year.

Of the remaining 30 percent of the sites, the Bush Administration has not cut funding for Superfund cleanups. All sites with ongoing cleanups will receive funding in the fiscal year 2002 to allow

work to continue, and no work is being suspended. This is contrary

to some of the articles, including the ‘‘New York Times’’ that made

people believe something that is not true.

In my State of Oklahoma, one site, the Hudson Refinery, will be

allowed to begin cleanup. I do not think that the EPA funding this

site at $3 million to begin cleanup is a step in the wrong direction.

The other site, Tar Creek—Tar Creek happens to be the Nation’s

worst Superfund site, and we’ll continue ongoing efforts to clean up

that site.

Now, let me say something about the IG report. The IG report

is not an accurate depiction of what is really happening. The

Superfund cleanup construction program is constantly evolving,

and funding decisions are made over the course of the entire year,

not simply at the beginning of the fiscal year. As a result, the Inspector General’s report represents a snapshot in time 2 months

ago and does not reflect accurately current funding decisions nor

all final funding decisions. When phases of the Superfund cleanup

process are completed, some funding may remain in related contrast. This left-over money may be applied to fund construction at

other sites. This funding is often secured toward the end of the fiscal year. Moreover, final funding decisions may occur late in the

fiscal year.

5

Far from cutting or eliminating sources of funding, the EPA

plans to use all of its fiscal year 2002 funding for cleanup construction—that’s $224 million—and is also working diligently to secure

additional funding from completed Superfund contracts that have

dollars left over after they’ve completed the process.

Now, Senator Boxer and I do not see eye-to-eye on a lot of things,

but we worked very well together on the brownfields legislation;

however, when moving the brownfields legislation I made it crystal

clear that the Superfund taxes should not be reinstated until comprehensive reform is enacted. I’m talking about comprehensive liability reform, comprehensive used oil recycling reform. While important, the brownfields legislation is not comprehensive reform;

therefore, I’d strongly oppose any efforts to reinstate taxes until

true reforms are enacted.

Despite what will be implied today, Superfund will continue to

take action to address imminent threats to human health and the

environment through the Superfund energy removal program. Furthermore, the Bush Administration has been and will continue to

ensure that our Nation’s most contaminated sites are cleaned up.

Thank you, Madam Chairman.

Senator BOXER. Thank you so much.

[The prepared statement of Senator Inhofe follows:]

STATEMENT BY HON. JAMES M. INHOFE, U.S. SENATOR FROM THE STATE OF

OKLAHOMA

I think that the record needs to be set straight on a number of fronts. Industry—

not EPA—has been funding a vast majority of cleanups. More than 70 percent of

site cleanups have been conducted and paid for by private parties. The law puts the

burden of paying for cleanup squarely on responsible parties. The Trust fund only

bears the costs of cleanup when no responsible party can be found, or where Congress has exempted the responsible parties. In the 7 years since Superfund taxes

expired, responsible parties continued to pay for all cleanup costs at their sites and

reimbursed EPA for its costs to oversee cleanup. Last year, EPA collected a record

$1.7 billion in cleanup funds from responsible parties—more than EPA spends for

Superfund each year.

Of the remaining 30 percent of sites, the Bush Administration has not cut funding

for Superfund cleanups. All sites with on-going cleanups will receive funding in fiscal year 2002 to allow work to continue, and no work is being suspended.

In my home State of Oklahoma, one site will be allowed to begin cleanup. I do

not think that EPA funding this site at $3 million to begin cleanup is a step in the

wrong direction. The other site, Tar Creek—the Nation’s worst Superfund site, will

continue ongoing efforts to clean up the site.

The IG report is not an accurate depiction of what is really happening. The Superfund cleanup construction program is constantly evolving, and funding decisions are

made over the course of the entire year—not simply at the beginning of the fiscal

year. As a result, the Inspector’s General report represents a snap shot in time, 2

months ago, and does not accurately reflect current funding decisions nor all final

funding decisions. When phases of the Superfund cleanup process are completed,

some funding may remain in related contracts. This left-over money may be applied

to fund construction at other sites. This funding is often secured toward the end of

a fiscal year. Moreover, final funding decisions may occur late in the fiscal year.

Far from cutting or eliminating sources of funding, EPA plans to use all of its Fiscal Year 2002 funding for cleanup construction ($224 million) and is also working

diligently to secure additional funding from completed Superfund contracts that

have dollars left over after the bills are paid.

Senator Boxer and I do not see eye-to-eye on a lot, but we worked very well together on the brownfields legislation. However, when moving the brownfields legislation, I made it crystal clear that the Superfund taxes should not be reinstated

until comprehensive reform is enacted. While important, brownfields legislation is

NOT comprehensive reform. Therefore, I will strongly oppose any efforts to reinstate

the taxes until true reforms are enacted.

6

Despite what will be implied today, Superfund will continue to take action to address imminent threats to human health and the environment through the Superfund emergency removal program. Furthermore, the Bush Administration has been

and will continue to ensure that our nation’s most contaminated sites are cleaned

up.

Senator INHOFE. One more thing?

Senator BOXER. Yes.

Senator INHOFE. I was supposed to ask unanimous consent to insert Senator Smith’s opening statement in the record at this point.

Senator BOXER. Without objection, so ordered. I will also insert

into the record Senator Durbin’s statement, which I hope the EPA

will read. He has numerous concerns.

[The prepared statements of Senators Smith and Durbin follow:]

STATEMENT OF HON. BOB SMITH, U.S. SENATOR FROM THE STATE OF NEW

HAMPSHIRE

Today’s hearing focuses on a recent EPA IG report—or more, to the point, this

hearing is responding to how the media has characterized this report. Unfortunately, some are taking the media characterization as fact. It is my hope that the

facts will finally get their chance. When the IG report was issued, it was a snapshot

in time—that is all. In fact, had the IG done similar reports 5 or 10 years ago, we

would have seen basically the same picture. The Superfund funding decisionmaking

process has not changed with this Administration. Needless to say, when I read the

New York Times article and saw a New Hampshire site on the list I was particularly disturbed because it was my understanding that the cleanup of the Merrimack

site was on schedule. Of course when I spoke with EPA after reading the article,

they assured me that the cleanup was, in fact, on schedule and its inclusion was

being grossly mischaracterized. We all know this hearing is about the elections in

November, plain and simple. You take a report from the Inspector General office,

leak it to the New York Times with a misleading spin, and all of the sudden you

have good story.

There has also been an on-going dialog between EPA and this committee regarding information on Superfund. Many have been claiming that EPA has been nonresponsive and uncooperative in providing documents to the committee on this matter. The correspondence that

I have received however indicates otherwise. For the record, I would like to submit the letter from EPA to the Superfund Subcommittee chair and ranking member,

in addition to a chronology of the steps taken to provide the committee with documentation.

Playing politics with the environment is nothing new, and it is always unproductive. Every single major environmental law passed the Congress with strong bipartisan support. Every time political grandstanding entered into the debate progress

stopped—but of course political points were scored. It’s a shame when you put environmental politics above environmental progress. I hope that we can put this partisanship behind us and move forward on protecting the environment.

CHRONOLOGY OF SEPW INFORMATION REQUEST

March 8, 2002

Senators Jeffords, Smith, Chafee, and Boxer mailed letters (dated ‘‘March 8,

2001’’) to each of EPA’s ten regional offices. The letters requested detailed information regarding the Superfund program. Although some regions did not receive the

request, headquarters made sure that all the regions were aware of the request so

that they could begin to prepare responses.

March 15, 2002

Ed Krenik of OCIR sent a letter to Senator Jeffords, et al., requesting a meeting

to discuss the scope of the letter and to request that in the interest of accuracy, timing and resources, that the scope be defined to exclude redundant and non-responsive materials.

March 26, 2002

EPA Headquarters Office of congressional and Intergovernmental Affairs (OCIR)

and Office of Solid Waste and Emergency Response (OSWER) participated in a conference call with SEPW committee staff (including Boxer staff) in order to clarify

7

the request so that the information can be provided prior to the April 10, 2002,

hearing.

April 4, 2002

Information discussed at meeting is delivered to Senators Jeffords, Smith, Chafee

and Boxer. Information provided included the regional responses to questions 1, 2,

3, 4, 5, 6, and 7 including headquarters attachments referred to by the regional offices (new start list, January 3 funding distribution memo for 1St and 2d quarters

of fiscal year 2002, and 3 construction completion status updates). At this time, it

was OCIR’s understanding that all information requested by the March 8, 2002, letter had been provided.

April 10, 2002

SEPW subcommittee hearing was held at which Marianne Horinko testified.

Week of April 15, 2002

Senator Boxer’s staff called to request information in addition to that provided for

the April 10’ hearing.

Week of April 22, 2002

OCIR and OSWER staff requested another meeting to determine exactly what information is being requested.

May 13, 2002

Meeting and a briefing on Superfund performance is held in SEPW hearing room.

Meeting is widely attended by representatives from SEPW committee and the

Democratic Party Communications Staff. During the meeting, Senator Boxer’s staff

again requests a list of ‘‘unf inded’’ sites. Again, OCIR staff explain how program

is managed and why there is no Agency listing of ‘‘unfunded’’ sites.

May 23, 2002

Governor Whitman met with several Senators regarding Clean Air issues. The

Governor and Senator Boxer also discussed Superfund issues.

May 31, 2002

OCIR (Ed Krenik and Don McKinnon) met with the staff of Senators Jeffords and

Boxer and provided copies of fiscal year 2001 ConstructionCompletion Candidate

Site Status updates, copies of fiscal year 2002Construction Completion Candidate

Site Status updates, the fiscal year 2002Construction Completion Candidate Sites

update—May 2002, the list of fiscal year 2001 sites that reached construction completion, and a list of the reasons sites identified in first fiscal year 2001 Construction Completion Candidate Site Status update did not reach construction completion.These documents are later officially provided in the letter dated June 4, 2002.

May 31, 2002

Letter from Senators Jeffords and Boxer asking for the additional information by

June 20.

June 4, 2002

Letter to Senator Boxer from Ed Krenik including e-mails from OCIR staff asking

for the regions to submit additional information.

June 20, 2002

Letter to Senators Jeffords and Boxer with approximately a 3-foot stack of documents delivered to SEPW staff. Documents provided include a privileged June 6,

2002, funding memo distributing the 3d and 4th quarter fiscal year 2002 funding

for the Superfund Program, a list of Federal facilities that are megasites, and a

compilation of the updated regional responses to questions 1, 4, 5., 6, and 7.

June 27, 2002

Responses to questions from the April 10, 2002 hearing were provided to the committee. EPA has requested, and is waiting for, the hearing transcript.

July 23, 2002

Letter dated July 23, 2003 sent by the SEPW committee received by EPA. The

letter was effectively an outline of concerns on the part of the committee regarding

EPA’s response to the March Stn information request.

July 24, 2002

Response to aforementioned letter sent to the committee from Ed Krenik. The response consisted of assurances that the Agency made every attempt to comply with

8

the original request and an outline of EPA’s commitment to obtaining the additional

information identified and requested by the committee in its July 23d letter.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

OFFICE OF CONGRESSIONAL AND INTERGOVERNMENTAL RELATIONS,

Washington DC 20480, July 24, 2002.

The Honorable BARBARA BOXER, Chair,

Subcommittee on Superfund, Toxics, Risk, and Waste Management,

Committee on the Environment and Public Works,

U.S. Senate,

Washington, DC 20510

DEAR MADAM CHAIR: Thank you for your letter of July 23, 2002 to Administrator

Whitman requesting documents related to EPA’s management of Superfund site

funding. Administrator Whitman and I appreciate the importance of congressional

oversight, and we will continue to make our best effort to meet the oversight needs

of the subcommittee.

I would like to take this opportunity to explain how we responded to the committee’s previous request, and the steps we will use for this request. First, I want to

assure you the Agency has made every attempt to comply with the original request

of March 8, 2002. As you know, the committee’s original letter was sent to all 10

EPA Regions. After several Regional offices began asking Headquarters how to respond to the broad scope of the letter, we requested a meeting with your staff and

committee staff to discuss ways to better target the request toward information that

would be useful to the committee, and to provide information prior to the April 10,

2002 subcommittee hearing. After meeting with your staff, we followed up with several emails to our Regional offices—including an email to each Regional Administrator—referencing your letter and requesting that they search for responsive documents. We provided clarifications and attempted to give examples of what would be

responsive and what would not be necessary to collect, based on our understanding

of your needs. For example, based on our understanding that your staff was interested in gaining an understanding of the budget and management decisions made

by EPA with regard to Superfund sites, we directed Regional staff to exclude construction and design plans, copies of contracts, invoices and related communications,

personnel related papers, etc. We had numerous conversations with several Regions

to explain the scope of the request, answer questions, and to request further document searches for materials that fell within the request, as it was written, particularly when we saw significant variability in the Regional responses. All of the Regional documents, about a three foot stack, were provided to the committee.

While it is true that we did not provide your staff with a copy of Headquarter’s

communications with the Regions until after we had begun providing documents to

you, the process of negotiating your request was entered into in good faith. Our actions following those conversations likewise were good faith efforts to meet your

needs. As we move forward we will redouble our effort to keep your staff informed

of our internal process for document collection. While this level of transparency is

unprecedented in our experience with Congress, we are pleased to make every effort

to give you the assurances you need that all appropriate documents are collected

and forwarded to the subcommittee.

Please let me assure you that information gaps (email attachments, etc.) in the

documents that we provided you on June 20, 2002, were unintentional. Any such

problems can be resolved with a phone call to me or my designated staff. Nonetheless, at the July 17, 2002 meeting of your staff and Marianne Horinko, Assistant

Administrator for lid Waste and Emergency Response, the Agency committed to providing copies of all such information that was mistakenly not printed out, and will

specifically request that Regions print such documents in our next instructions to

Headquarters and Regional offices.

We will again send your letter to each Regional Office,—as well as Headquarters

offices that may have responsive documents. If there are any instructions included

with the transmittal of your letter to EPA offices, I will provide your staff an opportunity to review the transmittal, as discussed at the July 17 meeting. My staff has

made recommendations on how your request could be targeted to more efficiently

meet your oversight needs without requiring EPA staff to collect extraneous documents. However, if you prefer, we will transmit your request without any modification with respect to the type of documents requested. In any event, we will provide

instructions for assembling and reviewing the documents (identifying privileged documents, etc.).

9

Enclosed, in response to your July 23d letter, is the enforcement sensitive Remedial Action Priority List. Although we had not received a written request for this

list prior to your July 23, 2002 letter, we did make several offers to your staff to

review the document at EPA. You should be aware that, on the advice of EPA’s General Counsel, Office of Enforcement and Compliance Assurance, Office of Solid

Waste and Emergency Response, and the Department of Justice, access to this document must be carefully controlled. I remain very concerned that the release of this

document, or any information from the document, could seriously undermine ongoing enforcement activity and the effectiveness of the Federal Superfund program.

The Remedial Action Priority List contains information that is subject to the deliberative process privilege and is enforcement sensitive, and is marked as privileged.

EPA’s disclosure of this document to you does not constitute a waiver of any applicable exemptions under the Freedom of Information Act (FOIA) that EPA may claim

in response to FOIA requests for this document. In addition, EPA’s disclosure of this

document to you does not constitute a waiver of any applicable legal privileges that

EPA may claim in litigation or other proceedings. I therefore request that you preserve the confidentiality of this document and all documents marked privileged or

sensitive by refraining from making or providing copies, or otherwise communicating the contents of these documents, to persons other than those with a need

to know as part of this congressional oversight review.

I have also enclosed a fact sheet and status report on 33 Superfund sites that

have been the subject of media attention. While not requested in your letter, these

documents were requested by your staff at the July 17, 2002 meeting.

To date, in addition to this letter and enclosures described above, the Agency has

provided to you a privileged June 6, 2002, funding memo distributing the 3d and

4th quarter fiscal year 2002 funding for the Superfund Program, a list of Federal

facilities that are megasites, and a compilation of the 10 regional responses to questions 1, 4, 5, 6, and 7 of your March 8, 2002 letter. You have also received: the January 3, 2002 funding distribution memo for the 1st and 2d quarters of fiscal year

2002; the fiscal year 2001 Construction Completion Candidate Site Status updates;

the fiscal year 2002 Construction Completion Candidate Site Status updates; the fiscal year 2002 Construction Completion Candidate Sites update (dated May 2002);

the list of fiscal year 2001 sites that reached construction completion; and a list of

the reasons that sites identified in first fiscal year 2001 Construction Completion

Candidate Site Status update did not reach construction completion. These documents were officially provided in the letter to the committee dated June 4, 2002.

If I can be of further assistance, please don’t hesitate to contact me, or your staff

may call John Reeder on 202/564–5200.

Sincerely,

EDWARD KRENIK, Associate Administrator.

STATEMENT OF HON. RICHARD J. DURBIN, U.S. SENATOR FROM THE STATE OF

ILLINOIS

Thank you, Senator Boxer, for inviting me to testify before the Subcommittee on

Superfund, Toxics, Risk and Waste Management of the Senate Environment and

Public Works Committee on the important topic of the Superfund program. I also

want to thank Senator Jeffords, and the members of this subcommittee, for your

leadership on the many critical environmental protection issues we face. Finally, I

want to applaud Senators Boxer and Chafee for introducing legislation to reinstate

the Superfund ‘‘polluter pays’’ taxes. I am proud to be a cosponsor.

The Inspector General of the Environmental Protection Agency (EPA) reported on

June 24 that the agency has slowed or stopped funding at 33 Superfund sites in

18 States. One of them, the Jennison Wright Corporation in Granite City, Illinois,

is not receiving the funding needed to bring the site to the construction complete

phase. For years we have seen the Superfund Trust Fund dwindle, as some in Congress, and now in the Administration, has resisted reauthorizing the ‘‘polluter pays’’

taxes. Today’s testimony will demonstrate the high costs of this abdication of responsibility.

Superfund sites are cleaned up in one of three ways: 1) the potentially responsible

parties (PRPs) enter into a Consent Decree with EPA to execute and pay for the

cleanup, or remedial action; 2) the EPA cleans up the site and recoups the cost from

PRPs through legal action; or 3) the EPA pays for and cleans up the site when PRPs

are bankrupt, unidentifiable, or cannot be forced to pay for the site, despite enforcement or legal actions EPA has taken. The Superfund Trust Fund pays for the cleanups in the third category, making these sites the most threatened when this program is underfunded.

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Three dedicated taxes historically provided the majority of the Trust Fund’s income, but expired in 1995. By the end of fiscal year 2003, the Fund’s balance will

have dwindled to $28 million. Every year after 1995, the Clinton Administration requested that Congress reauthorize Superfund taxes as part of its budget, and Congress declined. The Bush Administration has not included such a request in its fiscal year 2003 budget submission or its fiscal year 2002 submission. As time passes,

taxpayers are paying a larger portion of the cleanup than corporations. From 1.991–

1995, the portion of Superfund spending coming from general revenues averaged 17

percent; in fiscal years 20002002, it was 50 percent.

The Boxer-Chafee would reinstate the Superfund ‘‘polluter pays’’ taxes. However,

the Administration does not support reinstating these taxes. The Administration

prefers that all taxpayers have the burden of paying for cleanup. In a recent editorial, EPA Administrator Christine Todd Whitman asserts, ‘‘Financing the cleanup

of these orphan sites, as they are called, comes from the Superfund trust fund and

from Congress’s general revenues.’’ The reality is that general revenues do not belong to Congress. These revenues are taxpayers’ money. Also, while it is true that

some funds from general revenues have historically contributed to orphan site cleanup, taxpayers are paying a significantly larger portion of the cleanup than corporations than they have in the past.

In response to a letter I sent to Administrator Whitman, she has told me that

we should not worry that the Superfund taxes have expired, and that polluters no

longer have to pay their fair share of the cleanup. In a letter she sent to me on

June 28, she noted ‘‘Congress has supplemented the Superfund appropriation by appropriating dollars from general revenues. I am confident that Congress and the Administration will continue to work together to provide adequate funding for the

Superfund program.’’ She also told me that they do not yet have a clear understanding ‘‘as to whether project schedules in future years will be impacted by competing funding needs.’’ There seem to be some major management issues in this program that need to be examined.

Illinois

In Illinois there are 39 Superfund sites. Only 19 have reached the milestone of

‘‘construction completion,’’ where all the final remedies for the sites are fully in

place, with operation and maintenance remaining, and, in some cases, an ongoing

pump and treat system to restore the aquifer underlying the site to drinking water

quality.

Recently I visited one of these sites, the Outboard Marine Corporation (OMC) in

Waukegan, Illinois. I saw firsthand the environmental damage of that site, and how

it is impacting the local community, especially its efforts to restore the beach of

Lake Michigan and proceed with important economic development.

Hazardous wastes at the OMC site include PCBs and Volatile Organic Compounds (VOCs). From approximately 1948 to 1971, OMC purchased an estimated 8

million gallons of hydraulic fluid which contained PCBs for die casting of outboard

marine/recreational engines. PCBs were discharged through floor drains into a tributary of Lake Michigan and were ultimately discharged to Waukegan Harbor. As

a result, 700,000 pounds of PCBs were estimated to be present on OMC property

soils and 300,000 pounds of PCBs in the soils and sediments of Waukegan Harbor.

In the early 1900’s a wood-treating plant operated on the site, followed by a manufactured gas plant in the 1920’s and a coke oven gas plant in the 1940’s. Soil and

grounwater contaminants include coal tar, which contains many polynuclear aromatic hydrocarbons (PNAs), phenols and volatile organic compounds (VOCs), and

ammonia (byproducts of the manufactured gas and coke operations). Other contaminants, primarily in groundwater, include arsenic, cyanide and heavy metals.

The plant was purchased and disassembled by OMC in approximately 1972. Between 1973 and 1989, OMC used the site for fire training. Other more current uses

include waste oil storage, parking, stockpiling of sand from a dredging operation,and

testing of snowmobiles. OMC declared bankruptcy in December 2000, complicating

site cleanup actions.

PCBs have contaminated onsite soil and sediments in Lake Michigan. The Waukegan Harbor is identified as an Area of Concern by the Great Lakes Water Quality

Agreement between the United States and Canada due to its persistent, harmful

sediment problem. Although the PCB problem has begun to be dealt with, groundwater and soils are still contaminated with PNAs, ammonia, phenol and arsenic as

a result of activities that occurred at the former Gas and Coke Plant.

The residents of Waukegan, Illinois, and I want to know: what is taking so long?

Why isn’t EPA cleaning up this site?

Unfortunately, cleanups in Illinois overall are slowing down. In my correspondence with the EPA, Administrator Whitman delivered a saddening piece of news.

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Whereas the USEPA had earlier projected that the Byron Salvage Yard, a Superfund site in Illinois, would reach the construction complete phase in fiscal year

2002, they are now projecting that it will not be until fiscal year 2003. That means

only two sites will have reached the construction complete phase this fiscal year in

Illinois, and one of those sites was carried over from last year. In addition, only one

site, A & F Materials Reclaiming, is projected to be deleted from the list this yearmeaning it is the only site in Illinois that will be totally cleaned up.

The EPA’s Inspector General also reveals that the Jennison Wright

Corporationsite in Granite City, Illinois is not being cleaned up, even though it is

not one of the ‘‘megasites’’ that EPA claims take longer to complete. Although the

officials at the EPA requested $12.5 million for clean-up of the Jennison Wright

Corporationsite in Granite City, Illinois, this year, only $570,000 has been allocated,

meaning that the work has been put off’. This Fund-lead Superfund site has groundwater, surface soil, and subsurface soil contamination, including arsenic, benzene,

manganese, naphthalene, beryllium, chromium, and other contaminants. Surface

waters are contaminated with creosote, pentachlorophenol, and other related compounds.

The Jennison-Wright Corporationsite is a 20-acre, bankrupt railroad. tie-treating

facility in Granite City, which has a population of 33,000. The site is located in a

low income, mixed industrial/residential neighborhood. Operations as a railroad tie

treatment facility began prior to 1921 and continued until 1989. After operations

ceased, wastes were left at the site in a railroad tank car, a buried railroad tank

car, two above-ground storage tanks, and two lagoons. Neighboring residents may

be affected through direct contact or ingestion of contaminants emanating from the

site. Although the Illinois Environmental Protection Agency performed work on this

site as early as 1992, it was not proposed to the list until October 1995, and it became final in June 1996. Despite being listed for 6 years and being known as a contaminated site for 10 years, it has not reached the construction complete phase. It

seems that work is ready to proceed there, except for lack of funding. The appropriate clean-tip for this site should include soil excavation, offsite disposal, and a

groundwater pump and treat system.

Is the Jennison Wright Corporationsite not being funded due to lack of money in

the Superfund Trust Fund? If so, why are we encountering so much resistance to

reviving this important fund? Senators Boxer and Chafee, and members of this subcommittee, I hope you are able to get to the bottom of some of the pressing questions raised by my testimony and that of my colleagues in the Senate. We need answers before any further damage to our communities and to the public health is

done.

Senator BOXER. I just wanted to respond to my friend and just

say quickly that it is true that polluters are paying. They have in

the history of the program, and that’s good. But remember, it takes

a lot of work to figure out who the responsible parties are, and as

the money diminishes in the fund we can’t really do that work and

that enforcement, and it is—the problem we are facing—this chart

shows the percentage of Superfund cleanups that have been paid

historically by the polluters, 82 percent; taxpayers, 18 percent. This

Administration is changing that equation. If they stay on the

course they are on now, which appears to be the case, 54 percent

will now be picked up by the taxpayers, 46 percent by the responsible parties. I mean, this is an accurate depiction. It is a snapshot

of now. That’s where we are.

Senator INHOFE. Well, I would disagree with you. I don’t think

you could come up with an accurate figure in the circle under 2003

because I don’t think you have the information to do that. But I

would also repeat that not only has industry paid for the cleanup,

but also the administration cost to oversee that, which is some of

the cost that you are talking about.

Senator BOXER. Senator, we took this from the Administration’s

figures on the sites they are going to clean, the number of sites,

and where they are getting the funding from. This was drawn from

their documents. But we will certainly go back and review it with

the Administration.

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Senator INHOFE. Yes, and I will do the same.

Senator BOXER. Of course. And let me also state that I’m going

to put in the record a specific list of regions that have expressed

concern about cutbacks—Region Four, Region Six, Region Seven,

Region Eight. I’m going to put that in.

Senator INHOFE. And you put at the top of that Tar Creek, for

example, which is the worst in the United States of America. However, they were mislead to believe that funding was going to be cut

in areas that I don’t believe it is going to be cut.

Senator BOXER. OK. We will certainly know that by the end of

the year, which is September 30th, just a month away. You know,

when you say ‘‘a snapshot in time,’’ of course that’s true of everything in life. A report is a snapshot in time. This particular report

was 3 months before the end of the year when the money has to

be spent.

So, Senator, I have great respect for you, and we will see, once

the end of the year comes, what cleanups took place and what

didn’t. Even the most optimistic figures of the Administration—

could you put up the chart that shows the 80 sites cleaned up by

the Clinton Administration—this is the Administration’s own estimates of what they’re going to clean up. The revised estimates are

down to 40 sites, compared to the 87 we did under Bill Clinton, so

we are really talking about a major cut. That’s their plan that they

admit to, without getting to the specifics of what sites, so you’re

looking at a cut in half. That’s just the facts.

You could argue that maybe they’re cleaning up the harder sites,

and we can get into that debate.

Senator INHOFE. Yes.

Senator BOXER. But the raw numbers I believe speak for themselves.

Senator INHOFE. But I think it is important to add, Madam

Chairman, that any work that is ongoing at the present time is not

going to be cutoff, it’s going to continue. The public was not led to

believe that that’s the case, so a lot of terror was inflicted to a lot

of people unnecessarily.

Senator BOXER. Senator, we have people out there who have

been told their sites have been stopped and stalled, so let’s just—

instead of debating this now, I’m going to call on Senator Carper,

if I might, followed by Senator Jeffords.

Senator CARPER. I’d like you to continue debating.

Senator BOXER. Well, we’ll debate this until November, I’m sure.

Go ahead.

OPENING STATEMENT OF HON. THOMAS R. CARPER,

U.S. SENATOR FROM THE STATE OF DELAWARE

Senator CARPER. I watched Senator Nelson and Senator

Torricelli come into the hearing room. Looking at the four of us up

here, I am reminded that, I think in 1986, when Superfund was

modified and some major changes were made to it, I think we were

all serving together in the House of Representatives. One of the

reasons why we made those changes is because they needed to be

changed. Along the way we’ve made some changes, not so much

legislative but certainly administratively.

13

While there is plenty of work still to be done, I think it is probably worthwhile to say today, roughly two decades after the first

legislation was adopted, a great deal has been accomplished.

Roughly half the sites that were identified have been cleaned up,

and we’re well on the way to cleaning up a number of others.

Like some of you, I share a concern that we don’t sort of sit back

and rest on our laurels. There’s obviously more that ought to be

done. And I hope, as we hear from our colleagues and others who

follow, that we will be able to figure out what we’re doing well and

where we need to make some further modifications.

I look forward to hearing from our first two lead-off witnesses especially. Thank you.

Senator BOXER. Thank you, Senator.

Senator Jeffords?

Senator JEFFORDS. I don’t have an opening statement.

Senator BOXER. OK. Senator Crapo? Welcome.

OPENING STATEMENT OF HON. MICHAEL D. CRAPO,

U.S. SENATOR FROM THE STATE OF IDAHO

Senator CRAPO. Thank you very much, Madam Chairman. I appreciate the fact that we’re holding this hearing and I look forward

to the testimony that will be brought before us today, both from

members of the Senate, as well as Assistant Administrator Horinko

and our IG. We appreciate your coming.

I just wanted to say I had to step out during some of the conversation that took place, but I, too, hope that one way or the other

we will not lose sight on our focus of comprehensive reform of the

Superfund statute. We have been working on this now for at least

a decade or more. My political involvement here has been over the

last decade almost on this issue, and I believe that there is a crying

need for major reform that will help us to be much more effective

in putting resources where the need is and making sure that we

get the cleanup accomplished in ways that need to be done.

In that context, I look forward to working with all of my colleagues on the committee to try to find a path forward. We have

been battling over one thing or another for too long, and hopefully

we will be able to find a path that will give us a route out of the

political and the partisan bickering that takes place and toward

some type of a compromise plan that can maybe not give every one

of us everything we want in the reform process, but at least help

us find those areas of common ground where we can work forward.

I also look forward to the testimony today, and if I am able to

be here through the entire hearing and have a chance to ask questions, I’d like to discuss with our friends from the EPA some of the

issues we have going in north Idaho right now.

Again, I look forward to this opportunity. Thank you, Madam

Chairman, for holding the hearing.

Senator BOXER. Thank you, Senator Crapo.

Let me just say I hate partisan bickering. I do welcome debate.

You know, when we have different philosophies, I think that’s good

for us. And I don’t view this as partisan, since we have Senator

Chafee and I together on this and Senator Jeffords—Democrat, Republican, Independent. So I really don’t see this committee as being

14

particularly partisan and I welcome the debate and I respect differences, for sure.

Senator CRAPO. Well, Madam Chairman, I agree with that. In

fact, I think one of the things that makes America strong is the

clash of ideas. You know, the fact that in America we can have differences of opinion and engage in solid, strong, open debate on that

is healthy, and so I don’t have a problem with that at all, Madam

Chairman.

Senator BOXER. Wonderful. Senator Nelson, you came first. Do

you mind, Senator Torricelli, if I call on your colleague first? Senator Nelson of Florida.

STATEMENT OF HON. BILL NELSON, A UNITED STATES

SENATOR FROM THE STATE OF FLORIDA

Senator NELSON. Madam Chairman, you and I have discussed

this issue at length, and I just wanted to come and offer some support to the inquiry of this committee about the importance of funding the Superfund trust fund. Senator Carper, it was 1980 when

I was in the House that we voted on setting up the Superfund, and

one of the deals struck when we passed it was, in order to get the

oil companies and the chemical companies to come together so that

we could—you know, we had to do some bargaining. One of the

things was that the oil companies had a great deal of liability

hanging over their heads, and so, in exchange for them being willing to contribute under the theory that the polluter pays, the oil

companies’ liability was removed, and that the trust fund, under

the theory that the polluter, not the taxpayer, would pay, would fill

up this trust fund so that, as we found these sites all over America,

that there was a pot of money that we could go to when we couldn’t

hold the polluting party responsible because they had gone bankrupt or they had flown the coop or they were in jail, or whatever

it was. Then there was a pot of money that we could go to.

Now, we’ve got five of these Superfund sites in Florida, and I just

want to briefly sketch some of those for you so that you can see

how this is affecting us. But this is the year 2002, not the year

1980, when we enacted the law. Of course, what has happened,

with it being denied in the mid–1990’s to continue with the funding

into the fund—the fund is dwindling so that you’re going to have

just a few million dollars next year in the fund, and what is the

result is what is happening, and we’ll give you a case example in

Florida.

Take, for example, these five sites. There are three of them in

the Pensacola area. No less than the Chamber of Commerce has

come to me and come to Senator Graham and to their Congressmen—so this is bipartisan in nature. They are scared to death that

the future quality of life of their community, their ability as a

Chamber of Commerce to attract business, their ability as a Chamber of Commerce to expand business that is already there, this

cloud of potential pollution is hanging over Escambia County and

the Pensacola area. There’s no wonder, because the health statistics for Escambia County and the next county to it, Santa Rosa

County, are very troubling, because the rate of cancer deaths per

100,000 people exceeds the rest of Florida’s rate in every category,

so is there any reason that the Chamber of Commerce is concerned.

15

By the way, Pensacola is the cradle of Naval aviation, and that,

of course, is the main engine that drives that economy, but they

have diversified over time, so they just can’t have the kind of community they want unless these sites can be cleaned up.

Now, we’re not only talking about the forms of cancer in

Escambia and Santa Rosa counties have far exceeded the national

rates, but the childhood cancer rates have been among the highest

in the Nation over the past decade, and Escambia County—that’s

Pensacola—is in the top 40 in childhood cancer rates. So, needless

to say, not only the environmental community but the business

community has come and asked us to plead their case in front of

you.

But I want to take another case. Let’s go down to a different part

of Florida and there is something known as ‘‘Solitron Microwave’’

in Port Salerno. If you pick up the ‘‘New York Times,’’ this is to

day’s article. What happened down there is you had this Port

Salerno microwave, old plant, that started leaching all of this stuff

into the ground. We have a high water table there. You get your

water from shallow wells. The place became so contaminated that

the water supply, they couldn’t do it. So EPA promised, ‘‘We’re

going to send you to 150 homes. We’re going to send you public

water through a public water system,’’ and that has now been delayed because there’s no money in the kitty.

So what they did in Florida and what the substance of the ‘‘New

York Times’’ article today is they’re trying to figure a way around

it. The Florida Department of Environmental Protection had some

extra money, so they went and borrowed that. Now, they’re not

quite sure this is legal, what they did, and that’s another question,

but there are 150 homes that have got to have a clean water supply. Their theory is they’re going to give them a credit on whatever

the future EPA projects would be for the State of Florida. That’s

what they’re trying to do. It is band-aiding and chewing gum,

patching together something that ought to be a reservoir of money.

Then I’ll give you another one. Trans-circuit is in a community

down in Palm Beach County called Riviera Beach, and it is a middle class, minority community that has been fighting contaminated

drinking water problems for 20 years. The money is not there.

Last year EPA signed a record decision with Trans-circuit, a

former electronics facility site, which noted the need to continue to

operate a certain kind of machinery to decontaminate the water

until the EPA cleanup could be performed, and that region requested a pitiful, paltry $200,000 for this machinery, but that

money has not come through yet. It’s just another example.

And I want to tell you about one that I went to personally. It’s

12 miles west of Orlando. It’s right near a big lake called Apopka.

Apopka used to have 4,000 alligators. Today, Apopka has 400 alligators, and some of them have mutated bodies. Now, there are a

lot of sources of pollution into Lake Apopka, but let me tell you one

of the sources. This old Tower Chemical plant where, honest indian, they brewed DDT—they boiled DDT to get a derivative, and

all of this stuff spilled over into a natural crevice, a kind of little

pond area. The problem was that natural crevice was a sink hole.

It went right down to the Floridian aquifer, which is this big

sponge of water all over central Florida that supplies central FlorVerDate 11-MAY-2000 15:18 Aug 03, 2004 Jkt 000000 PO 00000 Frm 00019 Fmt 6633 Sfmt 6601 83719 SENENV1 PsN: SENENV1
16

ida with its water supply. Some of it even spilled over the edge of

this sink hole into a creek that flowed directly into Lake Apopka.

I went out there, and this thing has been abandoned now since

the late 1980’s or early 1990’s. There are houses all around it, and

what they want to do is to get special water filters on the wells for

these houses. I did everything. I want to commend the EPA project

manager. I mean, he understands the importance of this. He’s out

of Atlanta assigned to this particular project. It’s just gut-wrenching to him that all these folks around him don’t have these water

filters.

And so, I think because we kicked up such a fuss, now the residents are going to finally receive the water filters that they need

to safeguard for the time being until that whole site can ultimately

be cleaned up.

Now, my question to you—and I conclude with this—is: why do

these communities need to continue to suffer? Why have some of

the 33 communities listed in the Inspector General’s report as lacking money now received funding and others have not?

We need to take these communities that are at great risk and be

sure that we get the funding to them, and there’s no better way

to do that than to go back to the principle of the polluter pays and

replenish that trust fund.

Thank you, Madam Chairman.

Senator BOXER. Thank you so much, Senator. You have brought

home to us why we’re here, what we’re supposed to be doing, and

I can’t tell you how helpful you have been to me as we fight this

issue. Thank you.

Senator NELSON. May I be excused?

Senator BOXER. You may be excused.

Senator NELSON. I’m going to Iraq.

Senator BOXER. You are not.

Senator NELSON. It’s in the Foreign Relations Committee.

Senator BOXER. Good. I’m supposed to be there, too, but I’ll stay

here for the moment.

Senator Torricelli, I am so glad you are here. No one, I just want

to say for the record, has talked to me more about this Superfund

program and the need to reinvigorate it with the Superfund fee and

to move forward, and no one has more sites in his State than Senator Torricelli. Senator Corzine the same way has been just—the

two of them have been constantly talking to me about it.

Senator TORRICELLI. Thank you.

Senator BOXER. We have the second number of sites, so we are

giving you that title for the moment. But I want to make sure that

we all reduce—and there is, on cue, your partner, Senator Corzine.

Senator Torricelli, I hope you are just going to lay it out here for

us like you laid out to me on the floor of the Senate very often

when you grabbed my ear. Please let us know why it is important

to get this program up and running.

STATEMENT OF HON. ROBERT TORRICELLI, A UNITED STATES

SENATOR FROM THE STATE OF NEW JERSEY

Senator TORRICELLI. Thank you, Madam Chairwoman and members of the committee. Thank you for this opportunity.

17

It is actually difficult to understand why we have to be here.

Senator Carper noted that this is a conversation that was held almost 20 years ago in the U.S. Congress. Democrats and Republicans came together in a Republican Administration and made a

promise to the American people. There were industrial sites around

America where ownership was still clear, and there the responsibility was with those companies. They would be forced to pay.

Where there were orphan sites, we could not find those responsible,

in fairness to the American people we would not do the double

damage of forcing them to live with these polluted sites and force

them to use their personal income taxes to pay for them, and so

a fee was placed on the petrochemical industry, those that had the

source materials that in some way would bear some responsibility,

and the sites would be cleaned.

John Corzine and I probably represent as much of that chemical

industry and petrochemical industry as anybody in the Nation. I’ve

never had a single company complain to me that they are paying

this fee, not one. This isn’t coming from the corporations. This isn’t

the practical part of doing business. This is an ideology.

Members of the committee, you’re right, this shouldn’t be a partisan fight. It never was a partisan fight. Ronald Reagan supported

this fee. Former President Bush supported this fee. Republicans in

the Congress supported this fee. The country hasn’t changed. The

philosophy of some of those that were part of this arrangement has

changed.

I thought Senator Nelson made a good point that I’ve heard Senator Corzine make many times—this is also part of a comprehensive settlement. We would list liabilities from those in the industry

that faced potentially billions of dollars worth of exposure in exchange for them paying this fee. Now they don’t have the liability,

but now they’re not paying the fee.

This hearing never should have been necessary. This should have

been reauthorized years ago without a beat, but here we are back.

What can you say of the Superfund? Here’s my analysis of the

Superfund: it’s no longer super and it isn’t much of a fund. If this

is only being paid by the American taxpayers, it isn’t super; and

a fund that has dwindled from over $3 billion to $28 million isn’t

a fund. The more honest thing would be to cancel the program and

just do this through the EPA and the American taxpayers’ money,

because that’s what we’re doing. You’re maintaining a false facade

telling the American people—giving them the impression that

someone who is responsible is paying to clean up these sites when,

in fact, it is being paid out of money that should be going to educate their children, pay down the national debt, reduce their taxes,

pay for prescription drugs. Instead, we’re paying the obligations of

corporations that have escaped their responsibilities.

Well, as the chairlady noted, Senator Corzine and I have the distinction of representing a State with 111 of these sites in the most

densely populated region of the Nation. There is no one who could

sit here today and tell you that there’s a connection between the

fact that we have the highest cancer rates and the most Superfund

sites. I can’t give you the science, but, like Senator Nelson, is there

anyone here who really doubts it? Do you really think there’s not

some connection?

18

Chemical sites, dangerous substances sitting atop well water,

leaching into the ground, getting into dust particles, blown into the

air, ingested by people. What are we thinking? Whatever could

somebody have in mind who is opposed to restoring this fund and

getting these sites cleaned? It’s not as if we were participating in

a failure. We have stopped a success. It’s almost as if we said, ‘‘It’s

going too well. We’re doing too much. Stop us before we solve the

problem.’’

The Clinton Administration, as the chairlady noted, got to the

point we were cleaning 80 sites. That will reduce this year by more

than half. Four of those are in New Jersey of enormous importance

to the people of my State: Chemical Insecticide in Edison of New

Jersey, Burnt Fly Bog in Marlboro, Montgomery Township Housing

Development in Rocky Hill, and Somerset County. Another five

have had their funding severely reduced.

The most important of these to me was the Chemical Insecticide

site in Edison. Cleanup was to begin this November. I’m not going

to prolong my testimony before the committee, but I want you to

understand what this means. This is among the most densely populated communities in among the most densely populated county in

the most densely populated State in the Nation. Here’s what

Chemical Insecticide means to people who live there. Agent orange

was manufactured there during the Vietnam War. It is so contaminated that rabbits living on the site have turned green through a

mutation called ‘‘dinoset’’ from a pesticide found there in large

quantities. For years children played there. The truth was never

told to the community about agent orange or the impacts. A generation of children have now grown up in America, without doubt

that some of these elements are in their bodies.

It will cost $40 million dollars to clean the site. Wildlife is still

throughout the region. As I noted, cleanup was to begin in November of this year. The EPA has now announced there’s not enough

money to begin, perhaps for several years to come.

Among all the brave colleagues we have who will stand there in

defense of the industry who would pay this fee, is there anyone so

brave that you will come to Edison, New Jersey, and speak to the

mothers and the fathers whose children played on this site? Anybody so convinced of your position that you’ll explain to these people that the Federal Government does not have the resources or

the will to continue the Superfund, to protect their children? I

doubt it. That’s what you should do. Isn’t an explanation owed?

As I told you that story, I can tell you another ten, another twenty. Behind all of them is a family that wonders why their infant

child had a birth defect, why somebody is ill, why they lost somebody in the family. I can’t give you the science, but I can give you

the reasoning.

This fee will be authorized. We will fight this battle as long as

it takes. I have already filed amendments in the Legislation and

Finance Committee. I will return until it is done. It is not right and

it is not fair that we don’t restore this.

Yes, Madam Chairlady, it should be bipartisan. As I noted, it always was. Without Ronald Reagan’s signature we wouldn’t have

had a Superfund. A lot of this engineering for sites that Bill ClinVerDate 11-MAY-2000 15:18 Aug 03, 2004 Jkt 000000 PO 00000 Frm 00022 Fmt 6633 Sfmt 6601 83719 SENENV1 PsN: SENENV1
19

ton cleaned up, the engineering was done under former President

Bush. It always was. But for a few brave souls, it isn’t now.

If I could, I’d like to submit my full testimony for the record and

spare you the rest of my comments.

Senator BOXER. Thank you so much, Senator. You’ve added enormously to this debate.

Senator Corzine?

Senator CORZINE. Do you think I want to follow Senator

Torricelli with my remarks?

[Laughter.]

OPENING STATEMENT OF HON. JON S. CORZINE,

U.S. SENATOR FROM THE STATE OF NEW JERSEY

Senator CORZINE. You know, the concept that we are turning our

back on the 77,000 people that live and work around this chemical

insecticide plant that’s got a tarp that lays over the top of this

that’s punctured with holes is our response to clean up of a Superfund site, and realizing that there are people where the concentration of cancer contraction is higher than in normal population rates

is just unfathomable to anyone. You don’t have to be a Democrat.

You don’t have to be a Republican. You just have to be a human

being to understand that something ought to be done about these

kinds of risks to our population.

I can’t say it as well as Senator Torricelli has, but I’d like to see

the people come to Edison and say that this is responsible behavior

on the part of our Nation, given the commitment we have to try

to protect the health and safety of our population.

This is terrorism, in itself, and I believe that we made a bargain

in 1980 about how we were going to put together these situations.

The idea that we waive liability and that stays in place and we pull

away the revenue-raising element to fund the Superfund site is unconscionable, in my view. The idea that we are not taking those

steps to make sure that the Superfund is exactly what it is supposed to be—a bipartisan-created vehicle to protect the health and

safety of our families and our communities—is, without question,

a meritable objective of what I think we should be doing here, and

I hope we can go visit every one of those four sites in New Jersey

that Senator Torricelli talked about to demonstrate that the need

is real, that the risk is real, and that we need to have the resources

to deal with this and ask others to come and do it.

I have a statement that I’d put in the record if the chairlady

would allow.

Senator BOXER. Without objection.

[The prepared statement of Senator Corzine follows:]

STATEMENT OF HON. JON S. CORZINE, U.S. SENATOR FROM THE STATE OF NEW

JERSEY

INTRODUCTION

Thank you, Madame Chairman. I want to thank you for your commitment and

leadership on Superfund. I also want to welcome our colleagues to the committee,

particularly Senator Torricelli. Senator Torricelli has been fighting to clean up New

Jersey’s Superfund sites his whole career in Congress. It’s been an honor for me to

join him in that effort.

20

Madame Chairman, it’s an unfortunate fact that you’re never far from a Superfund site in New Jersey. We have more sites than any other State, and I have visited many of these sites already in my first term.

When you talk to the people who live around these sites, you hear about cancer

clusters. You hear about contaminated streams, and rabbits that have turned green

from exposure to chemicals. And you hear the frustration of people who can’t get

a straight answer from EPA about when a site is going to be cleaned up.

Madame Chairman, I share my constituents’ frustration, because I can’t seem to

get a straight answer out of EPA either. It’s been almost 4 months since our last

hearing on this issue. At that time, I asked EPA about whether cleanup of the

Chemical Insecticide Corporationsite in Edison, New Jersey would be funded this

year. The answer I got was ‘‘we don’t know and we can’t tell you.’’

THE CHEMICAL INSECTICIDE CORPORATION SITE

Madame Chairman, you have alluded to the Chemical Insecticide Corporationsite

in your testimony already, but I think it’s worth talking about in a bit more detail.

From 1954 to 1972, pesticides, herbicides, and fungicides, including Agent Orange,

were manufactured there. After the owner went bankrupt, the residents of Edison

were left with a vacant lot with heavily polluted soil and groundwater. Contaminants at the site include arsenic, heavy metals, pesticides, and dioxins. Many of

these are known carcinogens. The Agency for Toxic Substance and Disease Registry

examined the site and declared it a ‘‘Public Health Hazard.’’

This site was added to the Superfund list in 1990—12years ago. But not much

happened at the site until local residents got actively involved. In April, one of these

people, Bob Spiegel, testified before the Environment and Public Works committee

about the site. I won’t read the full testimony, but I want to quote his description

of his first encounter with the site. Mr. Spiegel said, quote:

‘‘In the spring of 1991, a friend asked if I wanted to see ‘‘green’’ rabbits. Armed

with a video camera, we took a short ride to the Chemical Insecticide Superfund

Site. The first thing that struck me was the smell—the smell of death and decay.

Nothing grew on the property except a strange florescent green moss. Small animal

carcasses littered the area, and there were, indeed, ‘‘green’’ rabbits living there. The

rabbits had developed an abnormal greenish yellow undercoat that I would later discover was the result of Dinoseb, a pesticide disposed of in large quantities throughout the site.

We followed a trail of yellow liquid draining from the back of the site downstream

past a neighboring industrial bakery and into the Edison Glen and Edison Woods

residential developments. There we video taped a child playing in the poisoned

stream who told us

it was a good place to hang out and look for frogs and turtles. I subsequently

found out that the vacant CIC lot was a playground for local children, the chemical

lagoons were their wading pools, and adults routinely scavenged materials from the

site.’’

Madame Chairman, this site has taken a toll on the community. Several people

who live near the site or worked near the site have died of cancer that they believed

was linked to the pollution. One of the families affected was that of a local police

officer, who developed a rare blood disease, and whose wife developed reproductive

problems. Property values have been hit hard as well.

With the prodding of local residents like Mr. Spiegel, some progress has been

made at the site through the Superfund program. EPA has cleaned up some areas

in nearby residential developments. In addition, EPA has put a liner on top of the

site to keep contaminants from continuing to wash off of the site. And they have

decided what they need to do to clean up the site. In January of this year, the end

appeared to be in sight, when an EPA employee told residents at a public meeting

that cleanup would begin in November. But EPA has since said that they don’t

think cleanup may not go forward due to lack of funding.

EPA HAS NOT BEEN FORTHCOMING WITH INFORMATION

As I mentioned earlier, I asked EPA at our last hearing about whether the CIC

site would be cleaned up. EPA told me that they didn’t know and couldn’t say. Several weeks later, the EPA Inspector General released a report showing that cleanup

at 33 sites in 19 States are not going forward because of funding shortfalls. Five

New Jersey sites were on this list, including the CIC site.

According to the IG report, the EPA Region 2 office requested $28.5 million for

this fiscal year to begin final cleanup at CIC, but no funds have yet been provided.

And according to information on EPA’s website today, EPA has still not committed

any fiscal year 1902 funds to cleaning up this site.

21

Madame Chairman, this is unacceptable. We have EPA information to suggest

that among Superfund sites where cleanup is not going forward, the CIC site is one

of the most hazardous to human health. We also know from people who live near

the site that the temporary remedy—a tarp placed over the site—is failing, and that

toxins are once again washing off of the site when it rains. How can EPA possibly

continue to justify not cleaning up this site, Madame Chairman?

Madame Chairman, I expect answers today about that site, and about how the

funding process works at EPA. Because the story of the Chemical Insecticide site

is the story of just one Superfund site. I have focused on it because it is one of the

most dangerous sites in the country, and it is not being dealt with. But similar stories could be told about many other sites in New Jersey and in States across the

country. It is our duty to ensure that these sites get cleaned up, and we need much

better cooperation from EPA so that we can understand what is going on in the program.

We also need to address the macro issue of funding. We know from the Inspector

General report that there is a funding shortfall of more than $200 million in fiscal

year 1902 alone. We also know that the Superfund is nearly bankrupt.

When the Superfund tax expired in 1995, the Superfund had a balance of $3.6

billion dollars. Since that time, the balance of the fund has steadily dropped. According to the president’s FY’03 budget, the fund will have only $28 million left at the

end of the next fiscal year. That’s not even enough to fully cleanup the one site that

I have been talking about in New Jersey.

So when the Superfund runs dry at the end of the next fiscal year, the entire

Superfund budget—which has been $1.3 billion per year in recent years—will be

paid out of general revenues. As we all know, we’re in deficits now, so that money

will be coming out of the Social Security Trust Fund.

That’s just not fair. It’s not fair to ask the people of Edison, NJ to pay to clean

up the Chemical Insecticide Corporationsite. And it ’s not fair anywhere else in this

country. The polluters ought to pay. That’s why we need to reinstate the tax. And

we need better cooperation and more transparency out of EPA.

Thank you, Madame Chairman.

Senator BOXER. Before Senator Torricelli leaves, let me say in

public now I make a commitment to both of you: if we do not resolve these issues by the end of the fiscal year, come October I will

be at Edison and wherever else you want me to go to demonstrate

this subcommittee chair’s interest in this. And if Senator Jeffords

is available, I have a hunch he might be interested in coming, as

well, but I speak for myself as chair of this subcommittee.

Senator JEFFORDS. I certainly would. I’d like to just make a comment.

Senator BOXER. Please do.

Senator JEFFORDS. It seems strange to me that the Administration will be willing to spend billions of dollars to reorganize in

hopes of stopping an act of terrorism, but won’t spend the millions

necessary for the things that are already done, which are incredibly

dangerous to our society, whether it is air pollution or whether it’s

the cleanup of these sites. This is just wrong that it’s not being

taken care of.

Senator BOXER. Senator, thank you. Thank you very much.

I think what we’re going to do is ask our next witnesses to come

up—that’s EPA and the Inspector General. Should Senators Kerry

and Schumer show up, we’re going to accommodate them, but we’re

going to move to the witnesses, and when there is a vote we’re

going to break and come back.

I’m going to call on Ms. Tinsley, who is the Inspector General for

the U.S. Environmental Protection Agency. Welcome. We’re going

to hope you keep your remarks to 5 minutes, if you can. Please proceed.

22

STATEMENT OF NIKKI TINSLEY, INSPECTOR GENERAL, OFFICE OF THE INSPECTOR GENERAL, U.S. ENVIRONMENTAL

PROTECTION AGENCY, WASHINGTON, D.C.

Ms. TINSLEY. Chairman Boxer, members of the subcommittee,

I’m pleased to be here to speak about the Office of Inspector General report on funding the cleanup non-Federal National Priority

List Superfund sites and about how my office went about doing our

work.

On April 17th of this year we received a letter from Congressmen

John Dingell and Frank Pallone, Jr., of the House Committee on

Energy and Commerce requesting our assistance in identifying the

funding needs of each non-Federal Superfund NPL site. In the letter, the Congressmen expressed concerns that EPA was falling

short of its cleanup goals in fiscal year 2002 and, accordingly, they

asked us for two things: first, to identify and summarize the funding needed for each non-Federal Superfund NPL site; and, second,

to provide the remedial action prioritization list for each region and

any similar nationwide document. They wanted us to provide the

information fairly quickly, so we could not do the type of detailed

analysis that we would normally do if we were doing an audit or

an evaluation.

As I describe the information that we provided the Congressmen,

I’d like for you to keep in mind that these figures were accurate

as of the date we completed our field work. If the same information

were requested today, some of the figures could be different because EPA headquarters provides funds to the regions on a quarterly basis. And, in addition, EPA sometimes de-obligates funds

from some sites and moves them to other sites for cleanup activities. So, in essence, as we heard earlier, the report represents a

snapshot in time.

To gather the site-specific funding information for the report, we

obtained information on remedial actions and long-term response

actions from officials in EPA headquarters and regions. We asked

questions about the processes for requesting and allocating funds,

about the officials’ perspectives and their concerns regarding the

processes, and about the impact of not receiving funds. I’ve attached our complete report to the testimony, so I’m not going to go

into a great deal of detail on the details and specifics, but, in summary, we found that for fiscal year 2002 EPA regions had requested $450 million for remedial actions, and headquarters had

budgeted $224 million.

Enclosure three to the letter shows that the regions had received just over $159 million at the time we did our field work.

As the report indicates, some regional officials expressed concerns about funding. For example, a Region Four official told us

about two partially funded sites that would require an additional

$6 million this fiscal year to maintain cleanup progress. That official, as well as officials in Regions Six and Eight, spoke of sites

ready to start remedial activities that lacked funding. A Region

Seven official told us that the remediation phase for several megasites may be lengthened because sufficient funds are not available.

For example, the region may need to stretch a 5-year, $100 million

cleanup to 10 years, given the current funding levels. Above all the

operational concerns, however, is the concern that, when sufficient

23

funds are not provided, the risk presented by a site may not be

fully addressed.

With regard to the remedial action prioritization list, the regions

did not have such lists. Instead, regions provide a listing of sites

to EPA headquarters and the EPA National Risk-Based Priority

Panel develops a national prioritized list. EPA considers this list to

be enforcement confidential and maintains that it should be withheld under Justice Department guidance. In accordance and in

compliance with that guidance, we did not release the——

Senator BOXER. Would you repeat that one more time, the EPA

has a priority list? Just repeat that.

Ms. TINSLEY. The EPA considers the list to be enforcement confidential.

Senator BOXER. OK.

Ms. TINSLEY. And under Justice Department guidance that has

to do with FOIA—and actually I’ve got this. This is all laid out in

the report, and I can be more specific——

Senator BOXER. But there is a list at the headquarters?

Ms. TINSLEY. There is a list.

Senator BOXER. Of priorities?

Ms. TINSLEY. Yes.

Senator BOXER. OK. Because I was told there wasn’t such a list.

But that’s OK. I’ll wait to ask Ms. Horinko later. Go ahead.

Ms. TINSLEY. And actually that concludes my remarks.

Senator BOXER. Thank you.

Ms. Horinko?

STATEMENT OF MARIANNE LAMONT HORINKO, ASSISTANT

ADMINISTRATOR, OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE, U.S. ENVIRONMENTAL PROTECTION

AGENCY, WASHINGTON, D.C.

Ms. HORINKO. Good morning, Madam Chairman and members of

the subcommittee. I am Marianne Horinko, EPA’s Assistant Administrator for the Office of Solid Waste and Emergency Response,

and I am pleased to appear once again before the subcommittee to

discuss the Superfund program and the important challenges we

face as the program enters its third decade. It is also a pleasure

to appear here today with Nikki Tinsley, our Inspector General at

the EPA.

I appreciate this opportunity to set the record straight and clear

up some of the myths that have been reported in the media recently about the Superfund program. I’m afraid the recent headlines have shed more heat than light on the program and the hard

work that goes on day in and day out in our ten EPA regions and

in the States cleaning up toxic waste sites to protect public health

and the environment.

Here are the facts: the overall cleanup funding has increased in

the President’s fiscal year 2003 budget—$1.3 billion for Superfund

over the last several years, and $200 million for brownfields. That

is a doubling of the brownfields budget. Thirty-three Superfund

sites did not get their funding cut. That myth is fast becoming an

urban legend. It is time to put that myth to rest. All Superfund

sites with ongoing cleanup work have been funded, and we are

hard at work funding the new construction starts.

24

The response released by the Inspector General did not contain

any list of sites that have purportedly had their funding cut. The

IG response, indeed, was a snapshot in time that reflected EPA’s

funding decisions as of May of this year; therefore, it did not capture the Superfund site funding decisions that have historically occurred in the third and fourth quarter. Our process for funding

Superfund sites has been in place for many years, and I’m pleased

to say the process has produced more funding decisions. EPA has

funded 11 of the 33 sites that appeared in the press for construction work.

Further, as expected, some sites identified early in the year for

potential candidates for construction funding do not actually need

construction funding this year. Every year site-specific conditions

change. Engineering designs may take more time, potentially responsible parties may be identified, or other new issues developed

that may prevent the site from reaching the construction stage.

EPA will make further funding decisions as moneys become available from our annual effort to de-obligate moneys from expired

Superfund contracts, inter-agency agreements, and grants. We expect those efforts to yield an additional $40 million in cleanup

funding.

In addition, I want to thank the Senate for providing EPA the $12.5 million in reimbursement for our Capitol Hill cleanup activities. Upon receipt from the Capitol Police Board we will be able to

restore those funds to the Superfund program and put the diverted

funding back to work in communities.

It is certainly fair to say the program is facing new challenges;

however, it is not fair to say that the EPA and the dedicated men

and women in the program are walking away from Superfund sites.

We are vigorously managing a mature program that has more

cleanup construction underway now than ever before. We are faced

with larger, more costly, and more complex sites to complete than

the sites that have been completed in the past. One of the charts

that I have provided the committee shows how the number of very

large, complex sites that exceed $50 million in cleanup costs and

Federal facility sites have become a much larger percentage of sites

that have not yet had cleanup construction completed. Managing

these large, complex sites, itself, presents new challenges, but I can

assure you that protecting public health and the environment remains a top priority for EPA and the Superfund program.

On September 1, EPA can release the funds held back by Congress in our appropriations bill. These funds, together with the

money we de-obligate, will allow us to fund more sites in this fiscal

year. We will be pleased to notify the members of this committee,

other Members of Congress, and State and local officials when

these funds are released, and I am pleased that this recent Senate,

VA, HUD, and Independent Agencies appropriations bill has removed the September 1 hold-back provision, which will give the

Agency greater flexibility. We are very thankful for that.

The Superfund program depends on appropriations to fund the

30 percent of site cleanups that aren’t performed by responsible

parties. We work as hard as we can to identify these responsible

parties and hold them accountable for cleaning up sites. EPA set

a near record in fiscal year 2001 in securing $1.7 billion in SuperVerDate 11-MAY-2000 15:18 Aug 03, 2004 Jkt 000000 PO 00000 Frm 00028 Fmt 6633 Sfmt 6601 83719 SENENV1 PsN: SENENV1
25

fund cleanup commitments and cost recovery. In particular, we appreciate your support for the nomination of J.P. Suarez as our Assistant Administrator for Enforcement. It is important to have him

confirmed and on the job to continue that commitment to polluter

pays.

I am afraid that there is a mistaken impression that by reinstating the lapsed Superfund taxes that EPA would have all the resources it needs to clean up the 30 percent of sites that aren’t

cleaned up by private parties. Like many of the challenges we face,

this is not a simple issue. Superfund taxes building a balance in

the Superfund trust fund do not necessarily provide EPA directly

with funding. One of the charts I have provided the committee

shows that Superfund taxes and a growing trust fund balance have

not necessarily provided EPA with any increased appropriations.

Historically, appropriations have stayed essentially level, notwithstanding the balance in the Superfund trust fund.

EPA and the program have responded to challenges before, and

I am confident we will do so again. A program disparaged as a failure in the 1980’s turned a corner in the 1990’s, thanks to bipartisan reforms launched by President Bush and continued by President Clinton. I’m looking forward to working with Congress in that

same bipartisan spirit, and I’m pleased to hear that we are not

going to turn back the clock and start bickering about this program’s future. The American people care about this program and

they deserve no less.

Senator BOXER. Thank you. Thank you very much, Ms. Horinko.

Believe me, there will be no bickering. There will be major confrontation and debate, major, big time, until this Administration,

in my view, helps us get that fund. Now, one of the points I want

to make—and we’re going to have to break now and I have to ask

your indulgence, both of you, because we have four back-to-back

votes, so we’re going to have to take a sizable break, and each vote

is approximately 15 minutes, so you can see it is going to be a sizable break, so if you want to go have coffee or whatever, we will

have Patina get in touch with you by phone so you can come back.

There’s no point in just sitting here, because it is going to be a long

wait.

There are a couple of things I want you to think about during

the break so I don’t surprise you. You said these sites are complex

and they’re expensive and they’re hard. The story in the ‘‘New York

Times’’ talks about a $1.2 million problem that you couldn’t find.

It’s unreal. A $1.2 million problem—you couldn’t find—$1.4 million

problem, you couldn’t find the money.

And the other thing I want to ask you is: if you think this is interesting that when the fund was filled we remained flat, what’s

going to happen when the fund is cold, empty? Do you expect that

the taxpayer’s going to pick up 100 percent of the funding? That’s

exactly where we’re headed. So I want you to think about those

things while we break to vote. We will come back and have more

debate. Thank you.

We stand in recess.

[Break.]

Senator BOXER. The subcommittee will come to order.

26

There continues to be yet another vote in just a few minutes. So

you need to know that I won’t torture you with a lot of questions,

because I can’t. I would if I could, but I can’t.

[Laughter.]

Senator BOXER. So I’m going to nonetheless ask a couple of questions.

Ms. Horinko, one of the questions I have is that one of the hearings, the last time, you said there was no list anywhere about sites.

And we were told by Ms. Hinkley very clearly in her testimony that

in fact, there isn’t a list in the regions, but there is a list in Washington. Could you explain why you told us there was no list?

Ms. HORENKO. Madam Chairwoman, I’d be happy to. The list

that I believe you were referring to at the last hearing, that you

were asking for, was a list of the sites that won’t receive funding

in this fiscal year. And I tried to explain that we don’t know until

the end of the fiscal year is over which sites will or will not receive

funding.

Senator BOXER. Well, if I had a list of what was going to receive

funding, I could make sense out of what was off the list, is that

correct?

Ms. HORENKO. Well, and we did just last week provide to your

office the list that Nikki spoke to, which is the list of sites

prioritized——

Senator BOXER. Well, I’d like to say for the record that I didn’t

think that your response was candid. If somebody asked me, do you

have a list of sites that are not going to be cleaned, and I had a

list of sites that were going to be cleaned, I’d say, no, I don’t have

a list that aren’t going to be cleaned, but I sure have a list of

what’s going to be cleaned, would you like it? So I find it very obstructionist, and I’m concerned about it, I don’t think it’s right. I

just don’t think it’s right. That’s one thing.

And, Ms. Tinsley, I want to thank you for the work that you did,

which is to take a snapshot of what occurred at the moment you

took it. That’s all we want to know. That’s all we were trying to

find out, and you gave us that snapshot. It was a very disturbing

snapshot, and maybe that’s why we didn’t get it other places. But

I want to just make a formal request to you today that we take another snapshot in September. Do you need me to do that in writing

with the chairman, with Senator Jeffords? I want a snapshot. First

of all, Ms. Horinko said you didn’t have the information from the

third and fourth quarter. I thought you had information from the

third quarter in your report; is that correct?

Ms. TINSLEY. No. I don’t think we had all the third quarter information.

Senator BOXER. So you had the first and second quarters. So

what date would you need to do it so that we’d have a report

from—a snapshot, if you will, of the program, because the year

ends September 30th. I don’t know what they’re keeping so secret.

We’re going to have to find out what’s going on. So if I asked you

to do a snapshot on September the 15th, would you be able to do

that for us?

Ms. TINSLEY. We can do a snapshot whenever you would like for

us to do a snapshot.

Senator BOXER. Good.

27

Ms. TINSLEY. If you just want something as of that date, we’re

happy to do that.

Senator BOXER. Right. Well, that’s what a snapshot would be, because I loved your thinking on this. It was very clear. ‘‘This is what

the region asked for, this is what the region got, and this is what

is unfunded from the region.’’ Pretty straightforward, pretty simple. It’s what we asked for, which we never got from them, so we

got it from you. That’s your job, and I appreciate that. So I will talk

to Senators Jeffords, Corzine, Clinton, Chafee, and others who are

concerned, and we will send you a letter, a formal letter, asking for

you to do an update on your snapshot that was dated June, and

we will decide what date we think is good, and we may talk to you

about it, Ms. Tinsley, to get your advice.

Superfund makes a rare deal with Florida. It’s not the first time

Florida has gotten a rare deal. They got a good deal on off-shore

oil drilling leases that the President is going to buy. But let me just

ask you this question: you couldn’t find $1.2 million to clean up

this water supply; is that right?

Ms. HORINKO. Madam Chairman, first let me say it was not my

intent to be obstructionist, and we certainly continue to be committed to work with your staff and be responsive.

Senator BOXER. I know. It may not have been your intent, but

you were. If you had a list of what was going to be cleaned up, then

all you had to do is say, ‘‘I have that list. Let me give it to you,

and by process of elimination you can see what isn’t.’’ So to say it

is not your intent, it doesn’t wash. That doesn’t make it better, Ms.

Horinko, but I appreciate it. Go ahead.

Ms. HORINKO. In the interest of time—I know you want to get

to this issue—at the Solitron Microwave site the process really focuses on the risk, and so when new sites come in to us and request

new projects for funding, those projects are reviewed once a year

by our National Risk-Based Prioritization Panel, which is our regional senior career managers that meet and review. They rank the

risks at the site, the actual or potential human health risks, the

environmental risks at the site, and then other construction factors, other special factors such as environmental justice, and rank

all the new starts once a year.

This particular request for the water lines did rank relatively low

because the wells in question are not actually contaminated. The

State wanted to go ahead and put the water lines in as a precaution. We are funding the study. We did fund the remedial design for those water lines and we are funding more than half a million dollars for the remedial design for the groundwater cleanup

this year, and we are very hopeful to be able to fund that actual

cleanup beginning in October of 2003, so I really commend EPA

Region Four for working with the State to find an innovative solution here. States are required, as you know, by the statute to pay

a 10 percent cost share, and this will really allow the State to provide in-kind services to meet their statutory obligation.

Senator BOXER. You said it wasn’t in the water? There was no

problem with the water?

Ms. HORINKO. In these particular wells, my understanding from

my Region Four office is that these wells did not have contamination that exceeded drinking water standards.

28

Senator BOXER. All right. Let me read to you what the story is

in the ‘‘Times.’’ Maybe you don’t agree with the story. You didn’t

like their last one. ‘‘The Florida site is on about 20 acres owned by

Solitron Devices, a Florida electronics firm. It is polluted by toxic

industrial solvents which have bled from the soil into the local aquifer into the local aquifer—’’ meaning water—‘‘with traces turning

up in private wells and the public water supply.’’ You disagree with

that?

Ms. HORINKO. There are wells where traces did turn up, and

those sites were connected previously to the public water supply.

Senator BOXER. How about in the public water supply? Do you

agree that they turned up in the public water supply?

Ms. HORINKO. In some wells—I don’t know if it was the public

water supply, but I can get the facts and make sure.

Senator BOXER. Wait a minute. You just said it didn’t turn up

in the water supply.

Ms. HORINKO. I don’t know for a fact if it turned up in the public

water supply.

Senator BOXER. OK.

Ms. HORINKO. But I can look into it.

Senator BOXER. Well, why don’t you look at it and why don’t you

give me an answer as fast as you can.

Ms. HORINKO. We’ll make sure we do.

Senator BOXER. When you send me the other papers next week.

It doesn’t give a lot of comfort to this chair to be given answers

and then, confronted with the facts, given other answers. Can’t you

just tell me the truth right up front? You couldn’t find the money,

period. The stuff was in the water. Now you’re saying it wasn’t a

threat? Well, I assure you the State of Florida didn’t look at it this

way.

I just think there are so many problems here. It is unbelievable

that a program of this size couldn’t find $1.2 million, and if I were

the people down there I’d have a pretty negative attitude toward

this President’s EPA. I’d feel good about my State EPA, though.

I wanted to correct something else in the record. When you

showed your chart there—could you hold up that chart again for

me on the funding of the Superfund? Let me make it clear. President Clinton in 1998 asked for $2,094,000,000. Can you point to

1998, sir, if you would? In 1998 President Clinton asked for $2 billion plus. The Republican Congress gave him a flat line, so let’s be

clear on what we’re talking about here.

The bottom line is this is a major disagreement between this

committee, a majority of this committee, and the EPA. I am hoping

that we get all the information in the next 3 days or 4 days that

we want. I told you before that you had one paper that was

marked—a blank piece of paper came to us ‘‘privileged.’’ What’s secret about that document? Do you put that on everything? This is

the public’s program here, the Superfund program. This is the

United States of America. This is a country of, by, and for the people. It’s not of, by, and for the privileged. And we’re going to just

work on this until we get all the facts. I’m going to write to Ms.

Tinsley. I’m going to ask her in a very straightforward way to do

what she’s done.

29

I was also interested, because it appears that the Inspector General got more information than we did, and Senator Jeffords is very

upset about that. By the way, I’m going to put Senator Jeffords’

full statement in the record, Senator John Kerry’s full statement

in the record, also, and Senator Kennedy’s full statement in the

record. These Senators are very concerned.

[The prepared statements of Senator Jeffords, Senator Kerry,

and Senator Kennedy follow:]

STATEMENT OF HON. JAMES M. JEFFORDS, U.S. SENATOR FROM THE STATE OF

VERMONT

I commend Senator Boxer for conducting today’s hearing on the Superfund program. Oversight of the Superfund program is a critical task for this subcommittee.

Senator Boxer’s efforts have the full support of this committee. In fact, bipartisan

concern over the pace of Superfund site cleanup was highlighted in a March 8 letter

to EPA from Senators Smith, Chafee, Boxer and myself. Specifically, we wrote seeking information on the backlog of Superfund sites, which are ready to proceed but

stalled by a lack of funding.

Unfortunately, EPA’s response to date leaves many questions unanswered. What

is the reason behind EPA’s slowdown of the Superfund cleanup program? Is the Administration ’s refusal to seek reauthorization of the Superfund taxes contributing

to this slowdown? Is EPA headquarters providing the regions with the necessary

guidance and support to ensure the Superfund program’s success?

Here is what we do know:

First, the Superfund program is experiencing a slowdown in the annual number

of toxic waste sites cleaned. From Fiscal Year 1997 through Fiscal Year 2000, an

average of 85 sites per year were cleaned up. This year, 40 sites will be cleaned.

Second, the Superfund tax expired in 1995 and has not been reauthorized. As a result, the trust fund will only hold $28 million in fiscal year 2003.

Third, through the General Treasury, taxpayers have picked up the funding slack.

Unfairly, I might add. Nonetheless, fewer sites are being cleaned despite constant

funding for the Superfund program.

Fourth, the Regions are feeling the pinch. In an August 2001 Region 1 Conference

call, the minutes noted: ‘‘Overall, based on the poll of the regions, it appears that

we have approximately 52 sites that should be completed by the end of the Fiscal

Year . . . for Fiscal Year 2002, there will not be enough funding to cover all of the

projected needs and most new Remedial Actions starts could go unfunded.’’

One month before the end of the Fiscal Year, EPA was talking of cleaning 52

sites. The number actually cleaned was 47. What happened to the other 5 sites?

If a funding shortfall for Fiscal Year 2002 was widely anticipated, why didn’t the

Bush Administration request greater funding in its budget request?

The Bush Administration claims that the cleanup slowdown is because EPA is

tackling more complex sites, which is taking more time and resources. I find this

hard to believe. After all, our cleanup technologies have vastly improved since the

1980 passage of Superfund. What could be more difficult to clean than Love Canal

before the expertise we have today existed?

These questions need answers. I find the vacuum of information unacceptable. I

do not wish to question the Bush Administration’s dedication to the Superfund program. However, the conclusions of the Inspector General’s Report furthers my concerns. As chairman of this committee, I am committed to ensuring the integrity of the

Superfund program. All Americans deserve clean soil and water. They should not

have to worry about their children’s health being affected by a former industrial site

in their community. And they should not worry about when and how a toxic site

is cleaned up. It is my mission to ensure that Superfund functions exactly as it was

intended-to clean up toxic waste sites quickly and completely.

STATEMENT OF HON. EDWARD M. KENNEDY, U.S. SENATOR FROM THE

COMMONWEALTH OF MASSACHUSETTS

The lack of funding for Superfund sites across the Nation is a serious problem

that Congress and The Administration have a responsibility to meet. Massachusetts

has two Superfund sites on the National Priority List that are of great concern to

the well-being of all the citizens in our State. The Atlas Tack Company site in

Fairhaven and the New Bedford Harbor site have a long history of toxic waste conVerDate 11-MAY-2000 15:18 Aug 03, 2004 Jkt 000000 PO 00000 Frm 00033 Fmt 6633 Sfmt 6621 83719 SENENV1 PsN: SENENV1
30

tamination and are serious risks to public health. After years of legal battles and

environmental testing, these two sites are now at the important construction phase

of the clean-up, and they deserve full funding.

The Atlas Tack Corporation manufactured large numbers of tacks and nails from

1901 through 1985. The company discharged toxic wastes into the ground and the

wetlands surrounding the site. In 1990, the EPA added the site to the National Priorities List of Superfund sites. The EPA released a Proposed Plan in December

1999, identifying the preferred cleanup alternative. In March 2000, a Record of Decision was signed identifying the remedy and calling for a three-phase $18 million

clean-up strategy.

New Bedford Harbor is the largest Superfund site in New England. It is a $317

million project and is one of the oldest Superfund sites in the country. $72.4 million

has been spent so far, including the remedial design and remedial action. Starting

next year and for the next 7 years, dredging will take place. Each year, $30.1 million is needed to finish the project. The revitalization of the city of New Bedford

depends heavily on the cleanup of the harbor.

To meet the continuing cost of Superfund clean-ups across the country, Congress

should re-authorize the corporate Superfund tax. From 1981 to 1995, these revenues

provided close to $1 billion a year for the clean-up of these sites. The failure by Congress to re-authorize the tax in 1996 has shifted too much of the heavy financial

burden of cleaning up these sites to the average taxpayer. In 1997, $1.15 billion for

clean-ups came from the Superfund Tax Trust Fund, and $250 million came from

taxpayer general revenues. This year, only $783 million came from the Trust Fund

share, $676 million came from general revenues. Polluters who endanger our communities and our environment should be held responsible. The Superfund tax

should be restored, so that Superfund clean-up projects in States across the country

can be fairly and fully funded.

STATEMENT OF HON. JOHN KERRY, U.S. SENATOR FROM THE COMMONWEALTH OF

MASSACHUSETTS

Thank you, Madame Chair, for the opportunity to testify at this important hearing today. I also want to thank you for your leadership on Superfund issues in the

Senate.

In the 22-year history of the Superfund program, the late 1990’s were the best

of times. A record number of cleanups were completed, achieving the environmental

and public health results first envisioned by Superfund’s creators.

Unfortunately, this success is now in serious jeopardy from the Bush Administration, which is dramatically reducing the number of Superfund site cleanups completed each year, and allowing critical funds instrumental to the program’s success

to be entirely depleted.

We cannot afford to let our nation’s superfund program fall prey to President

Bush and his so-called Environmental ‘‘Protection’’ Agency. People in communities

all across America are counting on us to save superfund—not only for the health

of the environment, but for the health of the public as well.

People in communities—like Patty Estrella in my home State of Fairhaven, Massachusetts where the abandoned Atlas Tack factory leaches poison every day into

the bay—need our help.

There’s no disputing the facts. In 2000, the EPA offered a cleanup plan for the

24-acre arsenic-laden site that we all thought would actually happen. But 2 years

after the plan was approved by town and State officials, the Atlas Tack site remains

nearly as dangerous as it was a decade ago.

The EPA doesn’t deny it. In fact, the EPA’s own reports say the site is a health

risk to any human or animal who visits the area or ingests shellfish harvested nearby.

Knowing this, it’s beyond my comprehension that Atlas Tack’s cleanup—once

scheduled to start in April—is currently destined to remain unfunded by the Bush

Administration.

We are talking here about a site that is known to contain heavy metals, cyanide,

PCBs, pesticides, . . . We are talking about a site where over 7200 residents, living

within one mile of Atlas Tack, are being forced to live in a toxic plume.

I want to know this of President Bush—is he willing to go back to that community

and look those families in the eyes and tell them that he is not going to help?

Because that’s exactly what the EPA Inspector General report says is going on.

The report identifies a funding shortfall in President Bush’s budget of more than

$225 million dollars which will dramatically slow the pace of cleanup at our nation’s

31

superfund sites. Thirty-three sites in 19 States are adversely affected—sites like

Atlas Tack in Fairhaven.

The last time I checked, the goal of the Superfund program is to expeditiously

cleanup the most dangerous contaminated toxic waste sites in the country to protect

public health and the environment.

This goal is being seriously imperiled by the slowdown in cleanups caused by inadequate funding in the President’s Budget. But it doesn’t stop there.

By refusing to clean up the sites and then collect costs from the responsible parties, Bush and the EPA have essentially given the nation’s biggest corporate polluters a multimillion-dollar reprieve.

Throughout the program’s history, Superfund cleanups were primarily paid for by

the polluters themselves. A trust fund was also established, based on funds collected

from both a corporate environmental income tax and excise taxes to pay for the

cleanup of sites where EPA could not find the responsible party, or the guilty party

was bankrupt or unwilling to conduct the cleanup. EPA says the trust fund was

used to clean 30 percent of the waste sites, while guilty corporations paid for the

other 70 percent.

The concept of polluter pays will become an empty slogan if something is not

done to keep the trust fund from going broke in 2004. The fund has dwindled from

a high of $3.8 billion in 1996 to an estimated $28 million next year. So who’s left

footing a large portion of the bill? The answer, unfortunately, is taxpayers.

This situation is unacceptable on a number of levels—not only is the President

not willing to clean up our nation’s most contaminated sites, he wants to shift the

costs away from the polluters and toward the taxpayers.

I would hope to hear today from the EPA not more of their excuses for letting

cleanups at our Superfund sites come to a standstill or their excuses for letting corporate polluters off the hook, but what the agency is going to do to remedy this situation.

I want answers and I want them today. People like Patty Estrella that have been

fighting for years to rid their neighborhoods of toxic contamination deserve answers.

Senator BOXER. And so, Ms. Tinsley, just in concluding, what is

the policy of the Office of Inspector General on what information

must be provided to Congress when it is requested by Congress

through the appropriate committee chairs and so on?

Ms. TINSLEY. We follow the Department of Justice policy, which

says if a committee chair requests or subcommittee chair—I think

I’m right on subcommittee—requests something, then we’ll provide

it.

Senator BOXER. And can you confirm that in your view predecisional, enforcement sensitive, or documents exempted from release under FOIA must still be provided to Congress by an agency

if appropriately requested?

Ms. TINSLEY. You’re going to have to repeat that for me.

Senator BOXER. I will, because this is our understanding of what

the Justice Department rule is, but I want to get it on the table

because there are folks here from EPA who don’t seem to get it.

We believe that pre-decision, enforcement sensitive, or documents

exempted from release under FOIA must still be provided to Congress by an agency if requested by the appropriate subcommittees

and committees.

Ms. TINSLEY. We agree with that.

Senator BOXER. The answer is yes. Well, Ms. Horinko, I’d like

you to take that back. We’re asking for information. We’re entitled

to get this information. We don’t want to waste time not having it.

We don’t want people dancing around the truth. If the Superfund

program is going down the tubes, be straight enough with us to tell

us it is going down the tubes.

I’ll tell you, when I see stories like a State that has poison in the

water has to front $1.2 million, I’m embarrassed. I’m embarrassed.

32

I continue to be embarrassed by what I’m learning about this program. It is very disturbing.

We will continue to press for the information. We’re going to ask

Ms. Tinsley for a review. You’re not going to be blindsided. I’m telling you now we’ll pick a date in September, so I don’t want to hear,

‘‘Oh, we didn’t know on September 12th what we were going to do

on September 13th.’’ We’d like you to work with us.

The fiscal year ends September 30th, you know, so by early September we need our ducks in a row.

I want to thank the people within the EPA, within the Inspector

General’s office who care about the environment and who are there

for the right reasons, and we are going to press hard until we get

every bit of information. We have justice on our side, we have the

rules on our side, and we have the people with us on this.

Thank you very much. We stand adjourned.

[Whereupon, at 12:35 p.m., the subcommittee was adjourned, to

reconvene at the call of the chair.]

[Additional statements submitted for the record follow:]

STATEMENT OF HON. MAX BAUCUS, U.S. SENATOR FROM THE STATE OF MONTANA

Thank you, Chairwoman Boxer, for holding this timely hearing today on the status of the Superfund program. You have always been a great champion of the

Superfund program and I admire your leadership and hard-work on this issue.

I am very concerned, as I know you are Madame Chairwoman, that we’re losing

momentum on Superfund with this Administration.

As I’ve stated before, I remember very clearly when Congress debated the original

Superfund law, and I remember thinking what an incredible legacy Congress could

leave the Nation by enacting that historic legislation.

Seeing how successful Superfund has been over the last 25 years, particularly in

Libby, Montana, reinforces my belief that we did the right thing for the people of

this country when we created the Superfund program.

That’s why I was very disturbed by the Inspector General’s report that indicated

the Administration planned to reduce funding or delay clean-up efforts at Superfund

sites around the country. These are sites that are heavily contaminated with hazardous and toxic materials, that pose significant threats to public health and the

environment.

Two of the sites mentioned in that report are located in my State of Montana—

the Upper Tenmile site and the Basin Creek mining site. Both of these sites are

on the National Priorities List. In the case of the Tenmile site, the city of Helena’s

water supply is threatened with toxic mine wastes. This is very serious.

I understand that Basin and Tenmile received some funding after the Inspector

General’s report came out. But it’s also my understanding that this funding is less

than one-third what Region 8 said was necessary to move forward with long-term

clean-up plans at these sites. It looks to me like Basin and Tenmile got just enough

funding to put a band-aid on the problem.

I’m extremely concerned that the more we fall behind in securing the funding necessary for clean-up activities at NPL sites like Tenmile and Basin, the worse off

we’re going to be in future years. This has serious implications for the future stability of the Superfund program.

How long can we fund the status-quo at heavily contaminated sites before the

risks to public health and the environment become too great? How long before this

practice ends up costing us far more than if we provided the necessary funding at

the front-end of the process?

Let me emphasize again that a Superfund designation is not a trivial event for

the communities involved—it invokes real fear and uncertainty in people about the

future, about the future economic health of their community, and about the future

effects of any contamination on their health or their children’s health.

In a place like Libby, Montana, people just want to know that they’re not going

to be the next one to get sick or die. We should not burden communities with such

fear and uncertainty for any longer than is necessary to remedy the problem.

I know my State is not alone in facing cut-backs in funding. I also know that the

Administration and Congress have to juggle a lot of competing priorities. However,

33

jeopardizing the viability of the Superfund program is just not an option, not when

public health and safety is at risk.

Cleaning up massively contaminated sites and pursuing the parties responsible

takes money, it takes a lot of money—you just have to take one look at the Berkeley

Pit or the WR Grace vermiculite mine in my State to grasp that fact. And, we’re

not always going to find a responsible party.

The sooner this Administration accepts that fact, the sooner we can start looking

together for solutions to the problem, including taking another look at re-authorization of the Superfund tax to replenish the trust fund, so that individual taxpayers

aren’t stuck with the tab. I commend you, madame Chairwoman, for starting that

discussion by introducing S. 2596. I’m proud to be a co-sponsor of that legislation

because we have to look at every available option to shore up Superfund.

Madame Chairwoman, I thank you again for holding this hearing so we can get

to the bottom of what’s going on with the Superfund program. I look forward to

hearing the testimony of the witnesses.

34

STATEMENT OF HON. HILLARY RODHAM CLINTON, U.S. SENATOR FROM THE STATE OF

NEW YORK

Thank you, Madame Chairwoman.

The release of the EPA IG’s report last month once again has raised questions

and concerns regarding the status and the future of the Superfund program—or, as

I have already said, what I believe we will soon be calling the ‘‘Not-So-Super-Fund.’’

According to the IG’s letter to Congressman Dingell, at the time the report was

issued, EPA had appropriated only half of what was requested by its regional offices

for cleanups at Superfund sites across the country.

Unfortunately, this left a number of sites, including a site in the Village of Sidney

in New York State, without the necessary funding.

Since the IG’s report has been issued, EPA has made additional allocations of

funds, including $2.5 of the $4 million requested for the GCL Tie and Treating site

in Sidney, New York.

But many questions still remain about how EPA is handling the program, and

what the Administration’s plans and goals are for the program.

And additional questions flow from an article in today’s New York Times, in

which the State of Florida is being given an I.O.U. by EPA for a site cleanup, because the Agency doesn’t have the needed funds, and that lack of funding is slowing

down cleanup.

With one out of every four people in this country living within a mile of a Superfund site, we simply cannot afford to scrimp on this program.

Yet the Bush Administration is reported to be presiding over a more than 50 percent decline in the pace of cleanups, although I know that Assistant Administrator

Horinko will rebut this claim in her testimony.

To date, the Administration has been unwilling to acknowledge that any particular sites would be affected by a slowdown in cleanups and a lack of adequate

resources in the Super Fund.

They have also refused to request a reauthorization of the polluter pays tax,

which has traditionally been used to fund Superfund site cleanups.

The Superfund Trust Fund was established for the specific purpose of funding

cleanups, so that the polluters and not the American taxpayer would be footing the

bill.

But when the taxes that supported the Fund expired in 1995 and Congress refused to reauthorize them, the Fund began to run dry.

Next year, more than half of the money requested by the Administration for

Superfund cleanups would come from taxpayers, not polluters. And by FY04, there

will be no money left in the Fund at all.

That is why I have joined with Senators Boxer and Chafee on their legislation

to reauthorize the Superfund tax and reinstate the polluter-pays principle.

I was pleased to read an opinion piece published earlier this month in the New

York Times in which EPA Administrator Whitman stated, ‘‘the President and I both

believe strongly in the principle that ’the polluter pays.’ Whenever my agency can

determine who polluted a site, we hold that polluter responsible for the full cost of

the cleanup.’’

I thought, ‘‘Great. We’re all on the same page here.’’

And I know that Assistant Administrator Horinko will reiterate the Administration’s ‘‘strong commitment’’ to the polluter pays principle in her testimony today.

So I was a bit surprised when in a consent order issued last week, EPA only required GE to pay $5 million of a $37 million tab for past costs associated with the

Hudson River site cleanup.

A special notice letter of February 4, 2002, issued to GE read, ‘‘Demand is hereby

made for reimbursement of the balance of EPA’s and DOJ’s unreimbursed past

costs, $36, 967,290.72, plus interest.’’

Yet the order issued last week only requires $5 million in partial reimbursement,

and it caps reimbursement for all Future Response Costs paid by EPA at $2.625

million. Keep in mind, the overall cost of the project is estimated at $460 million.

So I guess I’m just a bit confused. I understand that EPA has reserved its right

to recoup additional reimbursement in the future, but I’m wondering what we’re

waiting for.

Now, don’t get me wrong. We were all pleased to see the order issued and the

process moving forward—particularly since this means that we will get some sampling in the Hudson completed this year.

But there are concerns that the order took too long, and that it is only for sampling. The order does not address other aspects of the remedial design, not to mention remedial actions. As such, EPA’s order is just a very small step forward.

35

And this is just one site in New York—albeit a very large and significant site.

But we have plenty of others, unfortunately. In fact, New York is fourth in the country in terms of the number of Superfund sites.

This is an issue of particular importance to New York and New Yorkers. We need

to ensure that the communities that are plagued by these hazardous waste sites get

the assistance and protection they so desperately need and deserve.

And as we will hear from the EPA IG today, the impact of insufficient resources

for this program will be ‘‘causing delays or preventing important work needed to

protect human health and the environment.’’

We simply cannot let that happen. And that is why we are here today holding

this hearing.

Thank you.

STATEMENT OF HON. NIKKI L. TINSLEY, INSPECTOR GENERAL, U.S. ENVIRONMENTAL

PROTECTION AGENCY

Good morning, Chairman Boxer and members of the subcommittee. I am Nikki

Tinsley, Inspector General of the Environmental Protection Agency (EPA). I am

pleased to speak to you today about the Office of Inspector General’s report on funding needs to clean-up non-Federal National Priority List (NPL) Superfund sites and

discuss how my Office went about conducting our work.

On April 17, 2002, the OIG received a letter from Congressmen John D. Dingell

and Frank Pallone, Jr., of the House Committee on Energy and Commerce, requesting OIG assistance in identifying the funding needs of each non-Federal Superfund

NPL site. In the letter, the Congressmen expressed their concerns that EPA was

falling short of its cleanup goals in fiscal year 2002 and was reducing their target

further for fiscal year 2003. Accordingly, the Congressmen requested that the OIG:

1) Identify and summarize the funding needed for each non-Federal Superfund

NPL site so that clean-up activities could be initiated, continued, or expedited; and

2) Provide the remedial action prioritization list for each region and any similar

nationwide document.

They asked us to provide a response in a very short time-frame and, in light of

this time-frame, we did not conduct the type of detailed analysis and verification

that we would generally do in a typical audit or evaluation.

In describing the results of our review, it is important to keep in mind that these

figures are accurate as of the date the OIG completed its fieldwork. If the same information were requested today, some of the figures could be different because EPA

Headquarters provides funds to the regions on a quarterly basis. Additionally, EPA

periodically de-obligates funds from some sites and uses them to fund cleanup activities at other sites. So, in essence, the report represents a snapshot in time.

I have attached the OIG’s complete report to this written testimony so I won’t go

into great detail on the specifics of the review. In summary, we found that for Fiscal

Year 2002, EPA regions requested $450 million for remedial actions and EPA Headquarters allocated $224 million. Also, for Fiscal Year 2002, the regions requested

$46.7 million for long-term response actions, and received $33.2 million

In responding to the first request, the OIG obtained information on remedial actions and long-term response actions from EPA Headquarters and each regional office. We developed a series of questions which we asked Superfund officials in each

of EPA’s ten regions. The questions were designed to obtain information about the

processes for requesting and allocating funding; the officials’ perspectives and/or

concerns regarding these processes; and the officials’ views on the impact of not receiving requested funds. We obtained information on the amount requested by the

region and the amount allocated by Headquarters for each non-Federal Superfund

site on the NPL.

We then compared the information from the regions to information EPA Regions

had previously reported to the Congress. Prior to finalizing our information on funds

requested and allocated to specific sites, we sent the data back to EPA regional officials for verification. Finally, senior auditors who had not worked on this assignment, traced the amounts requested and allocated back to the source documents

provided by EPA.

In responding to the request for regional and national remedial action

prioritization lists, we found that EPA regions provide a listing of sites to EPA

Headquarters and the National Risk Based Priority Panel develops the prioritized

list. EPA considers this prioritized list to be ‘‘enforcement confidential,’’ meaning

that if the document were to be released it could potentially jeopardize enforcement

negotiations. EPA also maintained that this document should be withheld under

guidance provided by the Department of Justice under the Freedom of Information

36

Act. In compliance with the Department of Justice, we did not provide this document in our response.

As our report indicated, EPA regional offices did not receive the full amount of

funding requested to conduct remedial actions. When sites are ready for cleanup

and the funding estimated are accurate, not providing sufficient funds can impact

the program by causing delays or preventing important work needed to protect

human health and the environment. For example, at the time of our fieldwork, a

Region 4 official expressed concern about two partially funded sites that will require

an additional $6 million this fiscal year to maintain clean-up progress. That official,

as well as officials in Regions 6 and 8, expressed concern over the lack of funding

for sites ready to start remedial activities. Further, a Region 7 official told us that

the remediation phase for several mega-sites may be lengthened because sufficient

funds are not available. For example, the Region may need to stretch a 5-year, $100

million cleanup over 10 years given the current funding levels. Above all the operational concerns, however, is the concern that when sufficient funds are not provided, the risk presented by the site is not fully addressed.

Madame Chairman, that concludes my remarks. Thank you for the opportunity

to participate today. I would be happy to respond to any questions the committee

may have.

STATEMENT OF HON. MARIANNE LAMONT HORINKO, ASSISTANT ADMINISTRATOR, OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE, U.S. ENVIRONMENTAL PROTECTION AGENCY

Good morning Madam Chairman and members of the subcommittee. I am

Marianne Horinko, Assistant Administrator of the Office of Solid Waste and Emergency Response, U.S. Environmental Protection Agency. I am pleased to appear

today to discuss Superfund program progress, new program challenges including

Superfund program funding issues, and what EPA is doing to address those challenges.

Administrator Whitman and the Bush Administration are fully committed to Superfund’s mission, protecting human health and the environment by cleaning up our

Nation’s worst hazardous waste sites. Thanks to a decade of reforms launched by

the first Bush Administration and continued by the previous Administration, the

Superfund program has achieved dramatic success. In that same bipartisan spirit,

we embrace the new issues facing the program as it matures.

SUPERFUND PROGRESS

The Superfund program continues to make progress in cleaning up hazardous

waste sites. To date, 93 percent of the sites on the National Priority List (NPL) are

either undergoing cleanup construction or have cleanup construction completed:

• 815 Superfund sites have reached construction completion

• 391 Superfund sites have cleanup construction underway

Further, more than 7000 removal actions have been completed at NPL and nonNPL sites. In Fiscal Year 2001, EPA completed construction at 47 Superfund sites.

However, the decline in the number of NPL sites that reached construction completion in Fiscal Year 2001, as compared with Fiscal Year 2000, did not reflect the

amount of cleanup construction underway at Superfund sites. EPA has maintained

the number of construction projects underway at NPL sites, more than 730 per year,

from Fiscal Years 1999 through 2001. The President’s Fiscal Year 2003 budget request continues a commitment to clean up hazardous waste sites by maintaining

EPA’s budget for the Superfund program with a request of $1.29 billion.

SUPERFUND CLEANUP COMMITMENTS AND COST RECOVERY

Fiscal Year 2001 produced a near record $ 1.7 billion in Superfund cost recovery

and cleanup commitments from responsible parties. EPA’s enforcement program secured $1.3 billion in cleanup commitments from responsible parties. An additional

$ 413 million was secured to reimburse EPA for past cleanup costs—nearly $300

million more than in Fiscal Year 2000. The cumulative value of responsible party

commitments since the inception of the program now exceed $20 billion. This Administration continues its strong commitment to the ‘‘polluter pays’’ principle, which

has historically generated 70 percent of non-Federal Superfund site cleanup from responsible parties. Under this Administration, EPA vigorously conducts searches for

responsible parties at every Superfund site and is striving to maximize every opportunity to recover Agency cleanup costs from responsible parties.

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BROWNFIELDS PROGRAM

EPA’s brownfields program, through its grants, loans, and other assistance, continues to promote the cleanup, development and reuse of blighted, abandoned

brownfield sites throughout the country. The brownfields program has successfully

supplemented the cleanup and development efforts of States, Tribes and local governments. I am pleased to report that since its inception, EPA’s brownfields cleanup

program has leveraged more than $3.7 billion in cleanup and redevelopment funds,

and has generated more than 17,000 jobs. EPA funding has provided the resources

to States, Tribes and local communities to assess more than 2,600 brownfield sites.

Thanks to the enactment of bipartisan brownfields legislation, we can expect to

see even greater success by States, Tribes and local communities in reclaiming

brownfield sites and encouraging the cleanup and reuse of sites by the private sector. EPA is now in the process of planning implementation of the provisions in the

Small Business Liability Relief and Brownfields Revitalization Act (Public Law 107–

118). The Fiscal Year 2003 budget reflects the President’s priorities and our commitment to cleaning up and revitalizing communities by doubling the brownfields budget to $200 million.

REDEVELOPMENT AND REUSE

I have made land revitalization a top priority for the Office of Solid Waste and

Emergency Response and it is an integral part of the way EPA is implementing all

waste cleanup programs. Simply achieving cleanup is not enough. It is necessary to

view a property in terms also of the future economic, recreational or ecological benefits it represents to those who live nearby. It is important that we build on our success in the Brownfields program and make land revitalization a part of the Agency’s

organizational culture. We are making progress in the Superfund program. More

than 260 Superfund sites have been put back into reuse, generating more than

15,000 jobs and representing $500 million in economic activity. While our fundamental mission remains to protect human health and the environment, we need to

ensure that we fully consider a community’s desired future land use for a property

as we make cleanup decisions. We are working on tools to assist EPA managers and

staff as they work closely with State, public and private stakeholders in facilitating

property revitalization.

OIG RESPONSE ON SUPERFUND FUNDING NEEDS

By letter dated June 24, 2002, the EPA Inspector General (IG) responded to an

inquiry by U.S. Representatives John Dingell and Frank Pallone on Superfund program funding needs. The IG response included a series of enclosures that contained

Superfund site information provided by the Office of Solid Waste and Emergency

Response (OSWER). The enclosures contained Superfund site information from

OSWER data bases as of May, 2002. The information represented a snap-shot in

time and did not reflect end of fiscal year data. The response indicated that EPA

regions earlier in the year had estimated Superfund construction needs of approximately $450 million, while EPA had $224 million of appropriated funding available

to allocate. The response did not take into account the funding from unliquidated

obligations available for deobligaton in expired contracts, interagency agreements,

and grants that EPA and its regions are generating in the 3d and 4th quarters of

this fiscal year. This additional funding should total approximately $40 million, for

a total of $264 million.

Overall, the funding levels for the Superfund program have remained relatively

steady at

$1.3 to $1.5 billion over the past 5 years. Superfund program funding has provided sufficient levels of funding to continue on-going construction work. Notwithstanding recent press reports, no Superfund sites have had cleanup construction

suspended, and sites that pose an immediate risk to public health or the environment have been and will continue to be addressed by the Agency.

No Cuts to Superfund Site Funding

Recent media reports inaccurately attributed to the IG response a list of 33 Superfund sites where EPA purportedly cut funding. The IG response did not contain a

list of 33 sites with funding cuts and never characterized any of the information in

the response as representing funding cuts. An enclosure in the response listed all

sites eligible for construction funding and identified those sites that had not yet received funding as of the date in May when the data was generated by OSWER.

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How Superfund Program Funding Really Works

Inaccurate media reports have exhibited a fundamental misunderstanding of the

Superfund program funding process. The Superfund cleanup construction program

is constantly evolving and funding decisions are made over the course of the entire

year—not at the beginning of the fiscal year. Experience has taught us that the preliminary funding need estimates generated by EPA regions often represent levels

that build in numerous contingencies that, over the course of the fiscal year, result

in an over-estimate of the amount of funding needed to continue construction

progress. Further, some sites identified at the beginning of the fiscal year by EPA

regions as having construction funding needs are not actually ready to start construction before the end of the fiscal year for a variety of reasons; including changed

site conditions, engineering or design modifications, or the identification of a viable

responsible party to fund the work in place of EPA. Therefore, many of the construction funding decisions that will be made by the Agency during this fiscal year, had

not been made at the time the IG response was released.

Many of the funding decisions in the Superfund program are historically made in

the 3d and 4th quarters of the fiscal year because there is a congressional hold back

of $100 million of cleanup funding in the EPA appropriations bill until September

lst, and moneys deobligated from expired contracts, interagency agreements, and

grants generally become available during this timeframe. These moneys are used to

fund Superfund construction projects before the end of the fiscal year.

Following Agency practice, EPA has made additional Superfund funding decisions

at sites since the release of the IG response. Further, as expected, some sites identified early in the year by EPA regions as needing construction funding, will not be

ready for construction funding by the end of this fiscal year. Of the 33 Superfund

sites reported by the media as purportedly having their funding cut, 8 sites have

been funded for new construction work, 3 sites have been funded to continue ongoing construction work, and 6 sites will not need construction funding in this fiscal

year. Not all of the sites have received money to date, and likely will not receive

funding until September of this year. The Agency will make further site funding decisions as moneys become available from the regional efforts to deobligate moneys

from expired contracts, interagency agreements, and grants.

NEW CLEANUP CHALLENGES

As the Superfund program continues into its third decade, new challenges must

be met to continue the progress in cleaning up hazardous waste sites. In 2000, EPA

had anticipated the potential for a reduction in achieving site construction completions. The Superfund process, from site listing to clean up construction, on average

has taken roughly 8 to 10 years. Decisions made 5 years before a site ever reaches

the construction phase, for instance delaying the Remedial Investigation / Feasibility Study (RIFS), will have an impact on when that site reaches construction completion many years later. This is the current situation we face in the Superfund program.

The reduction in construction completions has resulted from a variety of factors,

including decisions made years ago on funding priorities; the size and number of

construction projects at remaining non-construction complete sites on the NPL; and

the need to balance competing environmental priorities within the Superfund program. In prior years, EPA focused resources on Superfund sites that needed less

construction work and that were further along in the cleanup process, thus creating

a backlog of more difficult sites and sites with significant years of construction work

remaining.

Remaining Sites Larger and More Complex

The remaining number of Superfund sites that have not reached the completion

stage includes area-wide groundwater sites, mining sites, sediment sites, and Federal facility sites. The size and complexity of these remaining sites generally indicate longer project durations and increased costs required to complete cleanup construction. There is now a greater number of Federal facilities and very large and

complex sites (sites exceeding $50 million in cleanup costs) as a percentage of NPL

sites not yet completed than ever before. Of the remaining 675 final NPL sites not

construction complete, 138 are Federal facilities and an additional 93 sites are very

large and complex sites.

Fewer Sites are Candidates For Completion

The pool of candidate sites for construction completion has become much smaller,

thus having a significant impact on the number of sites that reach construction completion. The vast majority of Superfund sites were listed in the first decade of the

program. Many of these sites have reached construction completion. As site listings

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significantly declined in the 1990’s, so did the pool of candidates for construction

completion. It has historically taken roughly 8 to 10 years to complete Superfund

sites, therefore sites listed after 1994 are, for the most part, unlikely candidates for

construction completion. The Superfund program has final listed 190 sites on the

NPL over the past 7 years. Adding those sites to the number of Federal facility sites

(138) and very large/complex sites (93) that are not yet construction complete totals

421 sites. Subtract that number from the total number of sites not yet construction

complete (675) and the Superfund program is faced with a relatively small pool of

likely construction completion candidates (254)—as opposed to the more than 1200

sites final listed in the first decade of the Superfund program (1983–1990).

SUPERFUND PIPELINE MANAGEMENT REVIEW

Although the number of Superfund sites completing construction in a given year

is being affected by program decisions made years before, EPA is looking for new

ways to improve program performance. The Agency has initiated a comprehensive

review of all Superfund projects in or approaching the most expensive phase of our

project pipeline, construction. After completion of this analysis and implementation

of some challenging decisions, EPA intends to manage toward creating an optimal

balance between the achievement of risk reduction, construction progress, and beneficial reuse at Superfund sites. A draft 3 year plan is scheduled to be completed at

the end of the summer.

NACEPT PROCESS

EPA has launched a public dialog through the National Advisory Council on Environmental Policy and Technology (NACEPT), a Federal advisory committee comprised of a broad cross-section of stakeholders, that will examine the role of the

Superfund program in addressing very large/complex sites, the appropriate role of

listing sites on the NPL as one of many tools to address contaminated sites, and

strategies to improve program effectiveness and efficiency through coordination with

States, Tribes, and the public. The first meeting of the NACEPT Superfund Subcommittee was held in June. EPA will work closely with the Environment and Public Works Committee as the NACEPT expert panel debates these important public

policy issues.

CONCLUSION

EPA will continue its efforts to improve Superfund program performance and

meet the many new challenges facing the Agency in cleaning up toxic waste sites.

The Superfund program will continue to clean up the Nation’s worst toxic waste

sites, to protect public health and the environment, and provide opportunities for

reuse and redevelopment to communities across the country. The success of the

Superfund program can be attributed in large part to the bipartisan and broad

based consensus that developed for the common sense legislative and administrative

reform of the program over the past decade. By working together in a non-partisan,

problem solving fashion, I am convinced that we can continue that success. The

President is fully committed to the Superfund program’s success and toward fashioning a sustainable future course for the program as it continues into its third decade. EPA and the Administration look forward to working with the members of this

committee and the Congress in the months and years ahead as we strive to meet

our common goal of protecting public health and the environment.

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RESPONSES OF MARIANNE LAMONT HORINKO TO ADDITIONAL QUESTIONS FROM

SENATOR JEFFORDS

Question 1. In the minutes of an August 28, 2001 Region 1 Conference call: ‘‘Overall, based on the poll of the regions, it appears that we have approximately 52 sites

that should be completed by the end of the Fiscal Year . . . Elaine also discussed

the outlook for FY02, there will not be enough funding to cover all of the projected

needs and most new Remedial Actions starts could go unfunded.’’

One month before the end of Fiscal Year 2001, EPA staff indicated in the above

minutes that 52 sites would be cleaned up. The number actually cleaned was 47.

What happened to the other 5 sites?

Response. On August 28, 2001, 52 candidates were identified as potential construction completionsites. At the end of fiscal year 2001, 47 sites achieved construction completion. The five candidate sites that did not achieve construction completion in fiscal year 2001 encountered unexpected site delays in the final month of

the fiscal year which caused cleanup schedules to extend into the next fiscal year.

One site encountered more significant groundwater contamination than originally

expected. This required additional construction to the treatment process and adjustments to the monitoring program associated with a monitored natural attenuation

remedy. Another site had a pre-final site inspection delayed until October 2001.

Final seeding of the cap and installation of a fence at this site was completed in

November 2001 and the site achieved construction completion in December 2001.

Two other sites encountered delays due to unforeseen construction issues. This included difficulties with operating a track hoe in a wet marsh area and drilling

through the presence of bedrock discovered in the subsurface. The last site extended

the public comment period associated with a public meeting due to mail and service

disruptions related to the September 11th terrorist attack.

Question 2. If a funding shortfall for Fiscal Year 2002 was widely anticipated, why

didn’t the Bush Administration request greater funding in its FY03 budget request?

Response. The FY03 President’s request does provide an increase for Superfund.

The Administration’s request proposes funding the Brownfields program, previously

included in the Superfund appropriation, under separate Agency appropriations.

The Superfund request was not reduced as part of this change. The majority of the

increase will provide funding for Homeland Security preparedness and response

readiness. While continuing remedial activities is a primary mission of the Superfund program, expanded responsibilities in the arena of Homeland Security have

taken priority for any additional funding in fiscal year 2003.

Question 3. You note in your testimony that funding has remained relatively

steady over the past 5 years. Accounting for inflation, how can level funding possibly be keeping pace with cleanup needs?

Response. This Administration has put a premium on making available resources

go further. While inflation slowly reduces the purchasing power of appropriated resources, increased efficiency has the opposite effect. For instance, the Superfund

program has begun using deobligated moneys in expired contracts, interagency

agreements, and grants to free up resources already available to the agency. EPA

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expects this funding in Fiscal Year 2002 to total approximately $40 million. The

Agency has also placed a high priority on securing commitments from responsible

parties to pay for and perform Superfund cleanups. As of the end of June, EPA had

recovered $230 million dollars from responsible parties, which is substantially more

than what was recovered in the entire year of fiscal year 2001. These actions have

allowed the Agency to maintain progress at Superfund sites. A Pipeline Management Initiative is underway to identify ways to streamline and spend money more

effectively.

Question 4. In your testimony, you note that historically the ‘‘polluter pays’’ principle has generated 70 percent of non-Federal Superfund site cleanup from responsible parties. What has that percentage been over the past 2 years?

Response. Private parties initiated 67 percent of new remedial action (RA) starts

at non-Federal facility Superfund sites in Fiscal Year 2001 and 68 percent in Fiscal

Year 2000. Over the last 3 years, private parties conducted approximately 73 percent of the new RA starts.

Question 5. In your testimony, you mention the National Advisory Council on Environmental Policy and Technology, the Federal advisory committee on Superfund.

I am concerned that this committee does not have an appropriate balance of interested parties. I also am concerned that the committee does not seem to be addressing all the issues of concern and relevance. Last month, 11 groups wrote to you with

similar concerns. How do you propose to resolve their concerns?

Response. With regard to membership balance, EPA took great efforts to form a

subcommittee that reflects the variety of diverse perspectives held by stakeholders

across the Superfund spectrum. During our selection process, we were very mindful

of the Federal Advisory Committee Act (FACA) requirement that the membership

of advisory committees ‘‘be fairly balanced in terms of the points of view represented

and the functions to be performed by the advisory committee.’’ FACA requires that

committees reflect a range of points of view and the necessary expertise relative to

a committee’s charge. The Office of Solid Waste and Emergency Response (OSWER)

believes the subcommittee we formed clearly meets that standard and represents a

balanced point of view. EPA’s Office of General Counsel (OGC) concurred with

OSWER’s balance assessment when they conducted their legal review of the subcommittee’s proposed membership.

If the subcommittee determines they would like to hear from individuals with

other perspectives or expertise, EPA has made it clear we are fully prepared to provide experts and consultants to ensure that the subcommittee has access to any additional viewpoints and expertise that the members believe are necessary to complete their mission.

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[From the New York Times, Wednesday, July 31, 2002]

SUPERFUND MAKES A RARE DEAL WITH FLORIDA

(By John H. Cushman, Jr.)

STATE WILL FINANCE CLEANING UP A SITE

WASHINGTON, July 30.—Short of money and struggling to end delays in cleaning up

toxic waste sites, the Federal Superfund program has entered an unusual arrangement with Florida in which the State will pay for work at a toxic site that would

normally be handled by the Federal Government.

Instead of waiting for the cash-strapped Federal program to provide nearly $1.4

million to bring clean drinking water to 150 homes in a polluted part of Port

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Salerno, as the Environmental Protection Agency had promised to do, the State

agency is paying for the speedy installation of water lines, according to State, local

and Federal project managers.

The arrangement illustrates just how tight Superfund money has become, forcing

Washington to seek creative approaches to help finance even a relatively small

project. In June, a report by the environmental agency’s office of inspector general

identified dozens of sites where Federal cleanup money had not been allocated this

year at the levels requested by the agency’s regional offices. The Florida site, known

as Solitron Microwave, is one of those named by the inspector general.

Usually, the State’s share of cleanup costs would be just 10 percent.

In exchange for Florida’s payment of the full cost of the project, the Federal agency has agreed to give Florida a credit that can be used to offset the State’s share

of future cleanups.

At first glance, the arrangement, which the officials say has never been tried in

the agency’s southeastern region and hardly ever in other parts of the country,

might seem to be a model for speeding cleanup work elsewhere at a time when critics in Congress are complaining about delays in the program, The Superfund law

authorizes such arrangements, EPA officials said. At the end of last year, there

were only about $10 million in credits outstanding, compared with an annual Superfund budget of about $1.3 billion.

But Florida’s environmental department, in having cash on hand for the project,

is a rarity for having escaped severe budget cuts that many other State environmental agencies are facing, according to the Environmental Council of the States,

which recently called on the protection agency to seek a bigger budget for Superfund

and other cleanup efforts.

‘‘Without adequate funding, the Federal and State cleanup programs will drastically decline in effectiveness,’’ the organization of State officials told Christie Whitman, the environmental agency’s administrator, in a letter early this month.

There are other potential legal problems with broadening this approach, too, specialists in government accounting rules say. Under the Anti-Deficiency Act, which

forbids expenditures of Federal money in excess of appropriations, an expansion of

the use of credits might be suspect, say officials at the General Accounting Office,

the auditing arm of Congress.

While the anti-deficiency rules are arcane and there are exceptions, an authoritative accounting office guidebook States, the central principle is simple: Federal officials should ‘‘pay as you go.’’

William Denman, the regional project manager at the environmental agency, said

in an interview that he had refused an earlier request by Martin County, Fla., to

do the work and to be repaid by the protection agency later, because the Anti-Deficiency Act would have made that illegal. But Mr. Denman said the, arrangement

with Florida avoided this problem because the actual credit would not be approved

until the work was completed, and because ‘‘there is no real money that changes

hands.’’

The Florida site is on about 20 acres owned by Solitron Devices, a Florida electronics firm. It is polluted by toxic industrial solvents which have bled from the soil

into the local aquifer, with traces turning up in private wells and the public water

supply.

Two years ago, at a meeting attended by 230 local residents, environmental agency officials promised the crowd ‘‘that they soon would be connected to public water

thereby, relieving them of their worries regarding the safety of their drinking

water,’’ according to a letter from one local official to Florida’s congressional delegation complaining about the delays.

By last January, however, county officials announced that although they had completed the engineering design work, which the EPA paid for, the actual construction

was being delayed because the agency lacked sufficient money.

In public statements, they worried that the community might have to compete for

financing with other Superfund sites at a time when the Federal program’s budget

fell short of what was needed to keep work on schedule at sites nationwide.

Distressed by the delay, Martin County decided to move ahead unilaterally.

But after Mr. Denman told them that was illegal, the agency and Florida agreed

to a somewhat different approach, with the State giving the county an installment

in June and promising to pay the rest later this year. The work should be completed

by winter. Further work to remove contaminated soil and stem the flow of polluted

groundwater has not yet been financed.

Eventually, the Superfund program stands to collect money from Solitron Devices,

which is negotiating over the sale of the property and over a further penalty drawn

from its future earnings that would settle its liability for the pollution. Details of

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the company’s negotiations with the EPA were reported in Solitron’s financial filings

with the Securities and Exchange Commission.

Æ