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[Senate Hearing 106-913]
[From the U.S. Government Publishing Office]

                                                        S. Hrg. 106-913

 EPA'S FISCAL YEAR 2001 BUDGET FOR OFFICE OF SOLID WASTE AND EMERGENCY 
                                RESPONSE

=======================================================================

                                HEARING

                               BEFORE THE

                            SUBCOMMITTEE ON
             SUPERFUND, WASTE CONTROL, AND RISK ASSESSMENT

                                 OF THE

                              COMMITTEE ON
                      ENVIRONMENT AND PUBLIC WORKS
                          UNITED STATES SENATE

                       ONE HUNDRED SIXTH CONGRESS

                             SECOND SESSION

                               __________

                             MARCH 30, 2000

                               __________

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

                               __________

                    U.S. GOVERNMENT PRINTING OFFICE
68-417                     WASHINGTON : 2001

_______________________________________________________________________
            For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington DC 
                                 20402

               COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS

               ONE HUNDRED SIXTH CONGRESS, SECOND SESSION

                   BOB SMITH, New Hampshire, Chairman

JOHN W. WARNER, Virginia             MAX BAUCUS, Montana
JAMES M. INHOFE, Oklahoma            DANIEL PATRICK MOYNIHAN, New York
CRAIG THOMAS, Wyoming                FRANK R. LAUTENBERG, New Jersey
CHRISTOPHER S. BOND, Missouri        HARRY REID, Nevada
GEORGE V. VOINOVICH, Ohio            BOB GRAHAM, Florida
MICHAEL D. CRAPO, Idaho              JOSEPH I. LIEBERMAN, Connecticut
ROBERT F. BENNETT, Utah              BARBARA BOXER, California
KAY BAILEY HUTCHISON, Texas          RON WYDEN, Oregon
LINCOLN CHAFEE, Rhode Island

                      Dave Conover, Staff Director

                  Tom Sliter, Minority Staff Director
                                 ------                                

     Subcommittee on Superfund, Waste Control, and Risk Assessment

                 LINCOLN CHAFEE, Rhode Island, Chairman

JOHN W. WARNER, Virginia             FRANK R. LAUTENBERG, New Jersey
JAMES M. INHOFE, Oklahoma            DANIEL PATRICK MOYNIHAN, New York
MICHAEL D. CRAPO, Idaho              BARBARA BOXER, California

                                  (ii)

                            C O N T E N T S

                              ----------                              
                                                                   Page

                             MARCH 30, 2000
                           OPENING STATEMENTS

Chafee, Hon. Lincoln, U.S. Senator from the State of Rhode Island     1
Crapo, Hon. Michael D., U.S. Senator from the State of Idaho.....     4
Inhofe, Hon. James M., U.S. Senator from the State of Oklahoma...     2
Lautenberg, Hon. Frank R., U.S. Senator from the State of New 
  Jersey.........................................................     4
Smith, Hon. Bob, U.S. Senator from the State of New Hampshire....    16

                                WITNESS

Fields, Hon. Timothy, Assistant Administrator for Solid Waste and 
  Emergency Response, U.S. Environmental Protection Agency.......     5
    Prepared statement...........................................    16
    Responses to additional questions from Senator Smith.........    20

                                 (iii)

 
 EPA'S FISCAL YEAR 2001 BUDGET FOR OFFICE OF SOLID WASTE AND EMERGENCY 
                                RESPONSE

                              ----------                              

                        THURSDAY, MARCH 30, 2000

                                   U.S. Senate,    
               Subcommittee on Superfund, Waste Control    
                                     and Risk Assessment,  
                  Committee on Environment and Public Works
                                                    Washington, DC.

    The subcommittee met, pursuant to notice, at 10:30 a.m. in 
room 406, Senate Dirksen Building, Hon. Lincoln Chafee 
(chairman of the subcommittee) presiding.
    Present: Senators Chafee, Inhofe and Crapo.

           OPENING STATEMENT OF HON. LINCOLN CHAFEE, 
          U.S. SENATOR FROM THE STATE OF RHODE ISLAND

    Senator Chafee. Good morning.
    Today the Subcommittee on Superfund, Waste Control, and 
Risk Assessment is conducting an oversight of the President's 
fiscal year 2001 budget request for programs that fall under 
the Environmental Protection Agency's Office of Solid Waste and 
Emergency Response, or OSWER. EPA Assistant Administrator Tim 
Field will testify regarding the budget request for programs 
such as Superfund, brownfields, and underground storage tanks. 
This is Tim Fields' second appearance before the subcommittee 
in as many weeks.
    Don't worry, Tim, we'll let you have a few weeks off before 
the next hearing.
    Under the leadership of Chairman Bob Smith, each 
subcommittee is conducting oversight hearings on EPA's budget. 
EPA Administrator Carol Browner testified on EPA's overall 
budget before the full committee last month. Today we will have 
the opportunity to review OSWER's budget and priorities in 
greater detail.
    It is important that this subcommittee focus on OSWER's 
priorities so that Congress can make informed decisions on 
EPA's overall needs.
    I hope that Mr. Fields will address criticisms that some 
have made of EPA's spending habits. Critics have claimed that 
EPA funds new initiatives before it has completed work at 
existing priorities, and that EPA spends too much money on 
administrative costs and too little on cleanup. But we must 
strike a delicate balance between our constrained resources and 
our top priorities.
    For example, the Centredale Manor Superfund site in North 
Providence, Rhode Island was added to the National Priorities 
List just this year. This site contains high-rise apartment 
buildings for handicapped and elderly citizens. Significant 
levels of dioxin were found in the cellars at the site, and in 
sediments in the Woonasquatucket River. You can only imagine 
the high level of emotion that exists when residents learn that 
toxic chemicals are present in the ground near their homes. 
This is certainly not a unique situation in Rhode Island. Using 
their emergency response authorities, EPA did respond swiftly 
and effectively to the relief of everyone in the community.
    I want to ensure that EPA has sufficient funds to carry out 
emergency response actions and other necessary functions, but I 
also want to know that each dollar is spent appropriately.
    I am also looking forward to Mr. Fields' testimony 
regarding underground storage tanks. Public attention has 
focused on the discovery of MTBE in groundwater resources. 
Since leaking underground storage tanks are the primary pathway 
for MTBE to reach groundwater, it is imperative that EPA 
maximize its underground storage tank funding to ensure 
compliance with the Federal requirements.
    Establishing priorities and balancing the needs of all 
programs within OSWER and EPA is a difficult task. Given 
unlimited resources, there will always be projects that we 
could fund. However, today's fiscal environment demands that we 
establish priorities and fund those priorities first. I hope 
that today's hearing will provide a forum for EPA to identify 
its priorities and that we can have an open discussion among 
members of this subcommittee. Thank you very much.
    Senator Chafee. Senator Inhofe?

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

    Senator Inhofe. Thank you, Mr. Chairman. First let me 
congratulate you on having chaired your first meeting, and now 
your second one, and each one gets easier.
    Senator Chafee. I hope so.
    Senator Inhofe. So you will enjoy it, and it's such an 
honor to be serving with you on this committee and with you in 
Congress, as it was with your father.
    Mr. Fields, thank you for appearing before the subcommittee 
today. As I know you are well aware, the EPA is under a court-
mandated order to make a determination as to whether combustion 
waste, such as fly ash, should be regulated as hazardous waste 
under RCRA.
    Originally, the EPA was supposed to announce a 
determination by March 10, and then got a 30-day extension to 
April 10. I have some very serious concerns about this course 
of action, Mr. Fields. In 1999, the EPA--the Agency that you 
represent--recommended to Congress that these wastes not be 
regulated by RCRA. In fact, the report came out of your 
department, Mr. Fields; your scientists reported that the 
States were doing an adequate job in regulating and managing 
these wastes. That report represents 19 years of research by 
the EPA, and many of the scientists--I'll be asking you later 
how many scientists you have in your department; you might be 
thinking about that--but now this year, less than a year after 
the report was submitted, I hear that you have proposed a rule 
to OMB that would regulate these wastes as hazardous, and would 
be making that determination, what, 10 days from now, I guess.
    During many of the debates up here I have emphasized and 
reemphasized the use of sound science. You can recall when we 
did this during the ambient air fight that we went through. 
Does that concept mean anything to the folks at EPA? I really 
don't know. And the reason I ask is because I know there is a 
serious problem when you can't even agree with a report that 
your own Agency, your own scientists, released. I guess I don't 
understand why you all keep doing this. We saw the same thing 
in the ozone fight, and the EPA ignored CASAC, and that's 21 
scientists, of which only 2 out of 21 scientists agreed with 
Carol Browner on ambient air changes, and yet they are just 
totally ignored. And these are scientists who were appointed 
for that purpose from the private sector, who work in the 
private sector, on a staggered basis--not Democrats, not 
Republicans. Totally ignored.
    We see it today with the MTBE and the EPA ignoring the Blue 
Ribbon Panel and their recommendation. What makes the EPA think 
these recommendations are just beyond consideration?
    I am very concerned that issues like this seem to be taking 
such a political tone. They are beyond scientific justification 
because the scientists believe that these wastes should be left 
to the States to regulate.
    Let me just remind you of what your own report says on 
pages 3 to 5, ``Subtitle (c) is inappropriate to address any 
problems associated with disposal of these wastes, and the 
continued use of site- and region-specific approaches by the 
State is more appropriate for addressing the limited human 
health and environmental risk that may be associated with the 
disposal of these wastes.''
    So let me just make one reference to the costs. It is my 
understanding--I'm not sure it's your Agency I ought to be 
asking this question--that came up with between $3.5 billion to 
$5 billion, but that will be along the line of questioning that 
I will have, and I'm going to talk about just what these costs 
include and what they don't include.
    So again, Mr. Chairman, I thank you for having this 
hearing. I know this is a budget hearing, but I can tell you 
right now if they go ahead and do what I think they're going to 
do, that is going to affect the budget.
    So I thank you very much for having this.
    [The prepared statement of Senator Inhofe follows:]
Statement of Hon. James Inhofe, U.S. Senator from the State of Oklahoma
    Thank you Mr. Chairman. Let me take a minute to congratulate you 
for holding your first hearing. I know that hearing took place last 
week and I wasn't able to attend, but never-the-less, it is an 
important milestone and you should be recognized for it. After the 
first one, they only get easier.
    Mr. Fields, thank you for appearing before the subcommittee today. 
Now, as I know you are well aware, the EPA is under a court ordered 
mandate to determine whether low level combustion wastes should be 
regulated as hazardous waste under the Resource Conservation and 
Recovery Act. Originally, the EPA was supposed to announce a 
determination by March 10, but I understand that you were granted a 30-
day extension so the final determination from you isn't required until 
April 10.
    I have some serious, serious concerns about this course of action 
Mr. Fields. In 1999, the EPA, the Agency that you represent, 
recommended to Congress that these wastes not be regulated by RCRA. In 
fact, this report came out of your department, Mr. Fields. Your 
scientists reported that the States were doing an adequate job in 
regulating and managing these wastes. That report represents 19 years 
of research by the EPA. But now, this year, less than a year after the 
report was submitted, I hear that you have proposed a rule to OMB that 
would regulate these wastes as hazardous.
    During many of the debates up here, I have emphasized and re-
emphasized the use of sound science. Does that concept mean anything to 
you folks at EPA? The reason I ask is because I know there is a serious 
problem when you can't even agree with a report that your own Agency, 
your own scientists, release.
    I guess I don't understand why you all keep doing this. We saw the 
same thing in the Ozone/PM debate when the EPA ignored CASAC's 
recommendations. We see it today with MTBE and the EPA ignoring the 
Blue Ribbon panel and their recommendation. What makes the EPA think 
that these recommendations are beyond your consideration?
    I am angry that issues like this seem to be taking a political 
tone. They are obviously beyond scientific justification because the 
scientists clearly believe that these wastes should be left to the 
States to regulate. Let me just remind you of what your report says. On 
page 3-5 your scientists state that `` . . . Subtitle C is 
inappropriate to address any problems associated with disposal of these 
wastes and that the continued use of site and region specific 
approaches by the States is more appropriate for addressing the limited 
human health and environmental risks that may be associated with 
disposal of these wastes.''
    Finally, let's talk about cost for this regulation. Your Agency 
concluded in the report that the total cost could be between $3.5 and 
$5 billion, or even more. I know how these things work and I am 
assuming that your numbers will fall far below the actual costs.
    Thank you Mr. Chairman. I look forward to addressing these issues 
in more depth during the question period.
    Senator Chafee. Thank you, Senator.
    Senator Crapo?

          OPENING STATEMENT OF HON. MICHAEL D. CRAPO, 
              U.S. SENATOR FROM THE STATE OF IDAHO

    Senator Crapo. Thank you very much, Mr. Chairman. I, too, 
appreciate your attention to these issues in holding these 
hearings. Unfortunately, I have a speaking engagement that is 
going to take me away immediately; I won't be able to be here 
for the rest of the hearing, probably, but I do have folks here 
watching it carefully, and we will be very focused on these 
issues. It is very important to us that we address the budget 
issues relating to the management of the funds that the EPA 
utilizes, especially in these critical areas that you've 
indicated, like Superfund and brownfields.
    So I just wanted again to thank you for the hearing and 
indicate that my failure to attend the rest of the hearing is 
not because of lack of interest. I will be very interested in 
the testimony that is presented here today.
    Thank you.
    Senator Chafee. Thank you very much for coming down and 
showing your interest in these issues.
    Senator Lautenberg is detained at a budget hearing and has 
submitted a statement for the record.
    [The prepared statement of Senator Lautenberg follows:]

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

    Mr. Chairman, I thank you for the opportunity to review EPA's 
budget for the Office of Solid Waste and Emergency Response in the 
authorizing committee. And since I also sit on the Appropriations 
Committee, these are issues I have long been interested in.
    As you know, during the years I've served as the ranking Democrat 
and before that, chair on this subcommittee, I've been very involved in 
the programs under your purview, and I am proud to say that there have 
been many accomplishments over the years.
    Just about half of the Superfund sites on the National Priorities 
List are completely cleaned up. And final cleanup plans have been 
approved for more than 1,000 other sites. Over 90 percent of the sites 
on the National Priorities List have cleanups underway or completed.
    Now that Superfund is really hitting its stride, we need to keep 
that momentum going.
    I am extremely supportive of brownfields and the progress of the 
brownfields assessment pilot projects. EPA has signed more than 300 
agreements for brownfields assessment pilots. These, and other EPA 
brownfields projects, are enhancing the abilities of communities all 
across our nation to redevelop abandoned properties for productive 
reuse.
    The Underground Storage Tank Program has also made progress over 
the years, and we have increasing evidence that this is a very 
important program and critical to protecting our groundwater. For 
example, from the beginning of the program in the late 1980's through 
late 1999, approximately 400,000 leaks were detected, and approximately 
230,000 cleanups were completed.
    The RCRA program, addressing ongoing facilities has also been 
vastly improved over the last few years, including the recent reforms 
to the RCRA cleanup program. I applaud the Administration for proposing 
additional funding for this program and hope it continues to get our 
attention.
    All of these programs have a tremendous influence on the health and 
quality of life for our constituents. I am proud of the role we on this 
committee have played in bringing these programs into law, and I am 
committed to making sure that they are funded adequately.
    Mr. Chairman, I look forward to an excellent presentation from 
Assistant Administrator Timothy Fields and I thank him and the 
committee for this opportunity to review the OSWER budget.
    Thank you, Mr. Chairman.
    Senator Chafee. And now, the Honorable Tim Fields, if you 
could give the introduction to your budget?

 STATEMENT OF HON. TIMOTHY FIELDS, ASSISTANT ADMINISTRATOR FOR 
    SOLID WASTE AND EMERGENCY RESPONSE, U.S. ENVIRONMENTAL 
                       PROTECTION AGENCY

    Mr. Fields. Thank you very much, Mr. Chairman, Senator 
Inhofe, Senator Crapo. We appreciate the opportunity to be here 
today to talk about the programs under our purview in the 
Office of Solid Waste and Emergency Response within the EPA 
that involve mainly the cleanup and waste management programs 
within EPA. It is a pleasure to again be before this 
subcommittee to discuss these important programs and, more 
importantly, be able to respond to your questions about these 
programs.
    EPA's overall Agency budget is $7.3 billion, and it 
reflects the Administration's priorities. For the programs 
within the Office of Solid Waste and Emergency Response, I am 
pleased to say that the President's budget provides the 
necessary funding to continue the Agency's success in 
protecting public health and the environment through the 
Superfund, brownfields, Resource Conservation and Recovery Act, 
and the Underground Storage Tank Programs, as well as other 
program areas within environmental cleanup and waste 
management.
    Let me start with Superfund. The President's budget 
requests $1.45 billion for the program, an increase of $50 
million over the fiscal year 2000 enacted budget of $1.4 
billion. The President's request will allow EPA to stay on 
track to complete 900 toxic waste cleanups by the year 2002.
    We believe the Superfund program has turned around and has 
become a real success story. Roughly three times as many 
Superfund sites have had cleanup construction completed in the 
past 7 years than in all the prior 12 years of the program 
combined. More than 92 percent of the sites are now in 
construction completion or have cleanup construction under way.
    More than 1,000 sites have all cleanup decisions already 
approved. We have done more than 6,000 removal actions. We have 
allowed 70 percent of the cleanup work to be done by the 
responsible parties; 21,000 small party contributors have been 
eliminated from Superfund liability, and $16 billion has been 
provided by responsible parties to do the work of toxic waste 
cleanup. We think that's a real success.
    In brownfields, the budget provides for roughly $92 million 
to fund the continued need to do brownfields assessments, 
brownfields cleanup, and redevelopment activities to help take 
the more than 450,000 brownfields sites across America and turn 
them back into some productive use.
    Third, the Resource Conservation and Recovery Act budget is 
roughly $224 million for the fiscal year 2001 request, which is 
a $17 million increase over the fiscal year 2000 budget. Most 
of that increase goes to RCRA corrective action, and we believe 
that is a major priority. We have begun to implement a series 
of reforms to allow RCRA corrective action to be done in a more 
accelerated, more efficient way. We think that's a major 
priority that we share with this subcommittee.
    Finally, the President's budget requests $91 million for 
the Underground Storage Tank Program, with $72 million going 
toward the Leaking Underground Storage Tank Trust Fund 
expenditures to support EPA, the States, and the tribes in the 
cleaning up of underground storage tank contamination.
    Mr. Chairman, Mr. Inhofe, we believe the President's budget 
continues to support our mission to protect public health and 
the environment and our environmental cleanup and waste 
management programs, while providing innovative funding to 
improve the quality of life for communities throughout the 
country. With the help of members of this subcommittee and 
others, we have made tremendous progress in our efforts to 
clean up sites and properly manage waste. However, although 
tremendous progress has been made, much more still needs to be 
done. That's why this fiscal year 2001 budget request is 
important to continue this job and continue the momentum of 
environmental cleanup and proper waste management.
    That concludes my prepared remarks. I will be happy to 
answer any questions that the subcommittee may have.
    Senator Chafee. I know Senator Inhofe has an Armed Services 
Committee meeting. Are you ready for coal ash and budget waste?
    [Laughter.]
    Senator Inhofe. Thank you very much.
    First of all, Mr. Fields, let me thank you for the way that 
you responded to the questions that we had back during the 
propane hearing that we had--my committee did--because you 
answered in a straightforward manner and very honestly, and it 
wasn't an easy answer to give. I remember when I just asked you 
point-blank, ``Do you consider propane to be a hazardous 
substance,'' and you said, ``No.'' So I do appreciate that, and 
I'm sure that you will be just as straightforward in this line 
of questioning.
    I understand that the EPA received a report from the 
environmentalists regarding this new regulation--or 
determination, I guess I should say. I would ask, first of all, 
was there any new scientific evidence in that report?
    Mr. Fields. The report provided additional damage cases 
involving coal ash waste that we are still investigating. It 
included comments and concerns about the management of certain 
coal ash wastes, particularly in mine-filling of certain of 
these wastes, as well as information about certain surface 
impoundments that were not properly lined. That is information 
that was contained in that report.
    Senator Inhofe. Was there anything in that report that 
contradicted what your own scientists came up with in their 
report a year ago?
    Mr. Fields. Well, it raised some new concerns. I want to 
make sure I put this in context.
    The report to Congress issued in March 1999 was, as the 
report that you quoted from indicates, a tentative conclusion. 
I've talked to the technical staff, the scientists who were 
involved----
    Senator Inhofe. Tentative conclusion?
    Mr. Fields. Yes.
    Senator Inhofe. You worked 19 years on it, and it's still 
``tentative''?
    Mr. Fields. Well, if you read the report, we say that it 
was a tentative conclusion for comment. The March 1999 report 
to Congress was a report where we reached a tentative 
conclusion that we would not regulate certain coal ash wastes 
under subtitle (c) of RCRA. We made clear that we would be 
taking comment on that over the next 6 months. We said in that 
report, as you recall, that this report and those 
recommendations did not address mine-filling operations. We 
said in that report that we did not have enough information to 
conclude whether or not mine-filling waste should be regulated. 
We indicated that we did not have sufficient information on 
mine-filling, and we requested comment from the public on 
whether or not mine-filling operations should be regulated 
under subtitle (c).
    Regarding what we know now versus March 1999, that report 
you referred to from some of the environmentalists did provide 
information on additional damage cases----
    Senator Inhofe. Before getting into all this, let me just 
ask you this. On that report that you were referring to that 
came from the environmentalists, I have heard it is flawed, so 
that implies to me that somebody has seen it; obviously, you've 
seen it. My staff informs me they haven't seen it. This 
committee's staff, apparently, has not seen it.
    Mr. Fields. We'd be happy to share that with you.
    Senator Inhofe. Well, yes, but with 10 days to go? This is 
really disturbing to me, but let me go ahead.
    I guess the next question I was going to ask is, was that 
report available to the public and open for public comment?
    Mr. Fields. The reports that we have received were in 
response to comments that EPA requested from the public. I 
don't know----
    Senator Inhofe. No, no----
    Mr. Fields.--I don't know----
    Senator Inhofe. The procedure, Mr. Fields, is that you come 
out with a report, then you have a comment period, you have 
hearings--that's what I'm asking. Was this done?
    Mr. Fields. I don't know whether that report----
    Senator Inhofe. Well, if it were done, it would seem that 
this committee would know something about it, unless our staff 
is just grossly inadequate.
    Mr. Fields. Well, we have received hundreds of comments 
since March 1999 from a variety of parties, including----
    Senator Inhofe. How about on this report? On this report? 
On the environmentalists' report?
    Mr. Fields. Well, we did not--we didn't seek comment on 
anybody's comments. The comments came in from hundreds of 
people----
    Senator Inhofe. I think your answer is no.
    Who were the groups who filed the report? Who made this 
report?
    Mr. Fields. Various environmentalist groups. I would be 
happy to provide for the record----
    Senator Inhofe. I think I have the list of them right here. 
I'll just read the list that I have here, and you can tell me 
whether or not you think that my list is accurate:

      The National Environmental Trust;
      U.S. PIRG, which is Public Interest Research 
Group;
      National Resources Defense Council;
      Environmental Defense Fund;
      The Clean Air Task Force; and
      The Isaak Walton League. Does that sound right?
    Mr. Fields. That sounds right.
    Senator Inhofe. Let me ask you a question. Do these groups 
receive any money from the EPA?
    Mr. Fields. I don't know precisely----
    Senator Inhofe. Could you ask your staff?
    Mr. Fields. We don't know, sir. Certain environmental 
groups do receive money from the EPA. I don't know whether U.S. 
PIRG or NRDC are receiving funding.
    Senator Inhofe. For the purpose of the hearing today, even 
though I am sure you will supply that answer for the record, is 
it safe to say that you cannot tell us at this time that they 
do not receive funds from the EPA, grants or otherwise?
    Mr. Fields. I cannot say that.
    Senator Inhofe. All right.
    Mr. Fields. You are correct. I cannot tell you whether they 
are receiving funding from EPA.
    Senator Inhofe. All right.
    This study that we have was done by your scientists. How 
many scientists do you have--I really don't know; I'm asking 
for information----
    Mr. Fields. Well, in terms of the scientists who have 
actually been working on this fossil fuel issue, we have about 
10 technical scientific staff who have been working on this 
issue. I will be happy to provide for the record the names----
    Senator Inhofe. You have about 10 staff scientists?
    Mr. Fields. Right.
    Senator Inhofe. OK. And they came out with this report?
    Mr. Fields. Well, yes. They worked on that report, yes, 
that came out in March 1999. Yes, sir.
    Senator Inhofe. All right. Have you done any cost-benefit 
analysis on the environmentalists' report?
    Mr. Fields. We have factored that report into our review. 
We looked at what that report had in it, versus other reports. 
That was just one source of information. We still have not made 
any final decision on----
    Senator Inhofe. But if you make a decision predicated on 
the recommendation of that report, it is very significant, I 
would think, that you would want to answer to the affirmative 
that you will have done cost-benefit analyses on that report.
    Mr. Fields. Well, we will make sure that we do all the 
appropriate analysis. We will assess the costs of any kind of 
regulation that might be looked at. We will look at what the 
benefits might be.
    Senator Inhofe. Isn't that the cart before the horse a 
little bit, Mr. Fields? I mean, if we say that we're going to 
make, first of all, a declaration 10 days from today that is 
going to declare that this substance is hazardous, and 
therefore it's going to have to be treated differently, it's 
going to have an effect on a lot of things like electrical 
rates and all of that.
    Mr. Fields. Right.
    Senator Inhofe. And that's what I'm talking about in cost-
benefit analysis. Do you think it's prudent to do that before--
to make the declaration before we conduct that cost-benefit 
analysis?
    Mr. Fields. Well, Senator, I might just reply that we've 
done a lot of analyses, like you said; a lot of study has been 
done on this over many years. This began when I worked on that 
sort of regulations back in 1986.
    Senator Inhofe. Well, I'm aware of that. In fact----
    Mr. Fields. We have estimates as to what the costs would 
be. We have a lot of analyses that were done prior to any 
comments from any parties, including that environmental group 
that you referred to.
    Senator Inhofe. Yes. I remember the Bevill amendment that 
gave birth to all of this back in 1980; in fact, Tom Bevill and 
I served together in the House of Representatives. I called and 
talked to Tom Bevill this morning down in Alabama. He's 
practicing law now; he's retired from the House. And he said, 
``You mean nothing has happened to my amendment in 20 years? 
Nothing has come from that?'' And he informed me that at that 
time--he had the amendment, because they were actually going to 
make this declaration before they had any scientific evidence. 
So I said, how long did you think it would take for them to 
make this determination? He said, ``Well, normally you do a 
study, and in a year or two it's done.'' Now, that was Tom 
Bevill in my conversation just this morning, and he was in 
shock. So I know it's been around for a long time.
    In my opening statement I used the range of between $3.5 
billion and $5 billion. I'm not even sure where I came up with 
that. Does that sound familiar to you as to the cost that this 
would incur?
    Mr. Fields. Those costs are high based on preliminary 
estimates that I've seen. I've seen numbers up to around $1 
billion in terms of the costs to industry of complying with 
regulatory requirements under RCRA. I have not seen a cost as 
high as $3.5 billion.
    Senator Inhofe. When you make evaluations of costs like 
that and come up with estimates, you are doing it internally, 
is that correct?
    Mr. Fields. Yes.
    Senator Inhofe. I would remind you that back 3 years ago 
when we started with Administrator Browner's proposed ambient 
air changes and particulate matter and ozone, her cost estimate 
first--not this committee, but the subcommittee that I chair on 
air--it was $6 billion. Then just a short while later, the 
President's Council on Economic Evaluations came up with $60 
billion. And then the Reasoner Foundation out in California 
came up with a range between $120 billion and $150 billion a 
year. Now, if we apply that same thing to your $1 billion here, 
it's getting pretty expensive.
    I have to ask you, when you come up with a figure do you 
consider what the capital costs to the facilities would be that 
would result from this for retrofitting and so forth?
    Mr. Fields. That is considered, yes, sir. But keep in mind, 
Senator, that we have not implemented any regulatory program--
--
    Senator Inhofe. I understand that. My concern is, we can 
sit here and not talk about this and then find 10 days from now 
that this declaration is made, and then we're going to start--
and in the meantime, what's going to happen to all this stuff? 
Let me finish.
    Retrofitting the leachate collection system--any 
consideration for that?
    Mr. Fields. Those impacts are being considered.
    Senator Inhofe. How are they being considered, when you 
came up with your estimate about approximately $1 billion? Is 
that a part of that $1 billion?
    Mr. Fields. Those were factored in, the cost of 
retrofitting liners to surface impoundments, the cost of 
upgrading landfill marking systems. That was all----
    Senator Inhofe. All right. How about the cost of disposal? 
The disposal of fly ash?
    Mr. Fields. Yes.
    Senator Inhofe. That's considered, too?
    Mr. Fields. That's considered.
    Senator Inhofe. What about the lost revenue from not being 
able to sell this material, where it is currently being sold--
concrete, building roads--is that a part of the consideration?
    Mr. Fields. Yes, sir. We believe--again, no decision has 
been made there--certain coal combustion wastes that are being 
used for beneficial uses would be able to continue, even if we 
made certain determinations of what would be covered under 
RCRA. Not everything would be covered.
    Senator Inhofe. OK. Let me ask you this, then. If your 
determination 10 days from now is that this is hazardous, and 
that material is already existing in buildings and streets and 
all that, would we need to perform remedial action on these 
sites?
    Mr. Fields. Like I said, we are looking carefully at the 
reuse issue. I'm just saying that an option would be to exclude 
certain reuse practices from a regulatory determination. That's 
an issue we're looking at.
    Senator Inhofe. Let me wind this up, Mr. Fields.
    I know, Mr. Chairman, that I've taken more time than you 
normally have in a round, but as you pointed out I do have my 
Armed Services commitment that I have to make, have to keep.
    The EPA, the DOE, the Army Corps of Engineers, the Federal 
Highway Administration have all endorsed the use of coal 
combustion products. Now, by regulating this as hazardous, 
don't we create serious shortfalls in the use of this material 
while we wait for utilities to ensure that no low-volume waste 
is included in the high-volume waste? Isn't that going to be a 
problem that we're going to have deal with?
    Mr. Fields. Well, we would look at how we carefully 
construct any regulatory determination if we decide to go with 
subtitle (c), but we can make very clear that certain very 
beneficial uses, like use as concrete and cement and roadbeds, 
etc., could continue and not be included as hazardous waste. 
Those practices would be excluded from any regulatory 
determination. That is an option that we are considering.
    Senator Inhofe. Are you aware that there is a bipartisan 
letter that is circulating through the Senate, Democrats and 
Republicans alike that are just as shocked as I am at the 
procedure that has brought us to this point today?
    Mr. Fields. I would not be surprised. We've gotten letters 
already from members of both Houses of Congress, Senators as 
well as Congressmen, Democrats as well as Republicans, on this 
issue. I was not aware of that letter but that type of letter 
does not surprise me.
    Senator Inhofe. One thing I learned a long time ago, when 
you see a train coming, you do everything you can at the last 
minute. But you know, this train has been coming for 20 years 
now. As I mentioned, I talked to Tom Bevill this morning; he 
was as shocked as others out in the real world are, that he 
could have an amendment and not have a response for 20 years.
    To have something out there that we've had access to to 
make a determination for 20 years, Mr. Chairman, and then we 
find out that there's some report that this committee has not 
read, that our staff hasn't read, Oversight hasn't read, and 
yet if you follow that--you're not saying that you're going to 
follow that recommendation and make that declaration 10 days 
from now, but if you do, I can't imagine that--this is 
unconscionable to think that you would base it on this, when 
this, I repeat, contradicts what you have in this report right 
here that came out of your own shop, only a year before. And it 
can't be--if you're talking about a 20-year span, all these 
findings that would have challenged the findings of your 
scientists last year could not have happened in the last year 
of a 20-year time span.
    And so I would just conclude by saying that I know this is 
an appropriations hearing, but I can tell you right now that if 
that declaration is made, it's going to have an effect on the 
appropriations. I don't know whether it's going to mean that if 
you're not going to listen to your own scientists, that we 
``de-fund'' those positions; I'm not sure how we'll have to 
look at it. I will be talking to Ted Stevens about this, and we 
will be anxious to see what your findings are on April 10.
    Thank you, Mr. Fields.
    Mr. Fields. I thank you.
    Mr. Chairman, if I could just respond briefly, I thank you, 
Senator Inhofe, for your comments. I assure you that any 
decision we make by April 10--the current order is April 10--
will not be based on just that one report from the ``enviros.'' 
We have done a year's worth of analyses subsequent to March 
1999. We looked at additional damage cases. We have looked at 
surveys of waste management practices in various States----
    Senator Inhofe. And you have considered also your own 
scientists' report?
    Mr. Fields. Right. And everything since that March 1999 
report, those analyses of various State programs--we're looking 
at whether or not coal ash should be regulated or not. That's 
an open question. Even if we decide that certain parts of coal 
ash should be considered for regulatory inclusion, certain coal 
ash practices may be excluded from that determination; other 
parts could be included. And that only means that we have 
determined that we ought to consider developing a regulatory 
proposal. That regulatory proposal then has to go through 
several years of development of a proposal, notice and comment, 
rulemaking----
    Senator Inhofe. Except that in the meantime, you've got 
this out there. What are you going to do with it?
    Mr. Fields. If we made a regulatory determination that we 
ought to consider developing a rulemaking, it has no impact----
    Senator Inhofe. So you're saying then, in this meeting, 
that if you make that determination, that there would be no 
change in the treatment of fly ash and other comparable types 
of materials----
    Mr. Fields. Right. Absolutely not.
    Senator Inhofe.--that they could continue to use them as 
they are, that they could continue to use them as byproducts in 
other substances?
    Mr. Fields. That's true. That's true. The regulatory 
determination does not in any way impact current practices for 
this industry. It does not in any way----
    Senator Inhofe. And it would not affect their current 
disposal practices in any way?
    Mr. Fields. It should not.
    Senator Inhofe. Good. Thank you very much for that 
clarification.
    Mr. Fields. We will try to clarify this in writing further. 
But no, that is definitely----
    Senator Inhofe. No, that's clear enough. I don't want it in 
writing; it might change.
    [Laughter.]
    Senator Inhofe. Thank you very much.
    Mr. Fields. Thank you, Senator.
    Senator Chafee. I will also just add that we are both 
former Mayors, and as Mayor--Senator Inhofe was Mayor of Tulsa, 
Oklahoma, and I was Mayor of Warrick, Rhode Island, and we had 
EPA levels for asbestos in our schools being violated. And we 
had to spend $2 million in our community, $2 million that we 
couldn't afford, because EPA standards on asbestos were so 
low--they said you could get the same levels of asbestos in the 
air as if you stood on the street corner from brake linings, 
and the chance of getting asbestosis was lower than getting 
struck by lightning, by these levels of asbestos in schools. So 
I think what Senator Inhofe is saying about it----
    Senator Inhofe. Mr. Chairman, I think that's significant. 
You and I both were Mayors. I tell my colleagues up here, if 
you want a hard job, be a Mayor. There's no hiding place; 
you're right out there where everybody knows. And we're having 
a hearing in my Clean Air Subcommittee that is going to bring 
the Mayors in, talk about the effects of these regulations. 
Because as you know, the biggest problem that you dealt with in 
being a Mayor was not necessarily crime or all these other 
things; it was unfunded mandates, and that's what we're going 
to try to correct from here.
    Senator Chafee. Yes. So these are legitimate concerns, and 
I appreciate your honest answers. As you know, as Senator 
Inhofe said, this is a hearing on appropriations, but these are 
important issues. So someday we will have to readdress those 
asbestos standards. I think New York City went through a 
similar asbestos crisis, generated by a long winter with the 
windows closed. And I believe it was from the students with the 
dirt and grime and the sand being put down for the icy 
sidewalks, getting on the linoleum, with the asbestos in the 
linoleum kicking up the fibers into the air. Then we tested and 
came up high; the parents thought everyone was going to die. A 
crisis ensued and we had to shut the schools for a week and go 
through this cleanup, which I thought was a complete waste of 
money and time. We should have just opened the windows and let 
the air clean up from the outdoors.
    But my question has to do with my appropriation for 
brownfields, almost $92 million. Do you think that's enough to 
address in the coming year all the cleanups we have to conduct 
around the country?
    Mr. Fields. We had requested $92 million, roughly the same 
as we requested for fiscal year 2000. We believe that is what 
we need to implement an effective program. It provides funding 
for 50 Brownfields Assessment Demonstration Grants; 70 
Brownfields Cleanup Revolving Loan Fund Grants; 10 Job Training 
and Development Fund Grants; and provides approximately $10 
million for our State Voluntary Cleanup Programs.
    We have found historically that the proposed budget for 
brownfields is what we need, based on the demand out there from 
cities that are applying for brownfields assistance annually. 
The funding proposal for State Voluntary Cleanup Programs is 
the level of funding we have provided in the last 3 years. We 
have found that the $90-plus million level for brownfields 
overall is adequate to meet the brownfields needs of the local 
governments and the States.
    Senator Chafee. We'd have to take that money from your 
scientists and put it into----
    [Laughter.]
    Senator Chafee. The last question I have is regarding MTBE. 
Do you consider that level of funding to address the concerns 
that have been raised, the leakage of MTBE into the 
groundwater?
    Mr. Fields. We are working carefully with the air program, 
obviously. As you know, the Administrator announced recently 
some actions she is taking to try to take MTBE out of the air. 
We are obviously working very closely with the air program, and 
we are working with the States. We are working in the States 
through monitoring to determine how much MTBE is leaking from 
underground storage tanks that we're out there assessing and 
cleaning up.
    We are finding that right now 85 percent of the underground 
storage tanks are in compliance with our upgrade requirements 
of December, 1998. We expect to be at 90 percent by the end of 
the year. Studies that were done or supported by the University 
of California at Davis found that for tanks that are properly 
retrofitted, very low leakage occurs. Less than 1 percent of 
the tanks that were properly retrofitted with the 1988 
requirements, that had to be in place by December 22, 1998, 
very low leakage is occurring. So, in those cases where people 
have properly complied with our underground storage tank 
regulations, we're not finding very much leakage of MTBE or any 
other contamination.
    We're hoping that we can bring the remainder of those tanks 
over the next couple years so that we have roughly 100 percent 
of the tanks in compliance. But what we're also doing on a 
parallel track is, we are reviewing our current regulatory 
requirements which were put into place 12 years ago. We're 
looking, Senator, at whether or not we want to make any 
modifications to those regulations to make sure that MTBE is 
not causing unique problems that require a modification of the 
regulations.
    We are cleaning up tanks, with State assistance, with the 
roughly $72 million that have been appropriated in the last 3 
years, from the Leaking Underground Storage Tank (LUST) Trust 
Fund. With that oversight money we are cleaning up roughly 
21,000 leaking underground storage tanks a year. Many of those 
include tanks that are leaking MTBE.
    We do recognize that MTBE does cost more money to clean up 
when it is in groundwater. It is more difficult to remove than 
some of the other contaminants. So the cost of remediation does 
go up. But the money that Congress provides to us for 
underground storage tanks is not provided as cleanup dollars. 
It is provided as oversight dollars for the States, primarily, 
and the tribes, and EPA to oversee the cleanups that are being 
done. The cleanups are done primarily by responsible parties 
and by the States. Most of the funding for cleanup comes from 
State assurance funds. The States annually accumulate about 
$1.3 billion in cleanup dollars that they utilize to clean up 
leaking underground storage tanks. That's where most of the 
money that is utilized for underground storage tank cleanups, 
including MTBE, comes from. However, we are cognizant of the 
increasing threat posed by MTBE. That's why the Administrator 
wants to get it out of the air as quickly as possible, so that 
we don't have the problem of it getting into the groundwater. 
We're trying to do all that we can to prevent it from getting 
into the groundwater, and when it does get there, we think that 
our LUST Trust Fund dollars that are being used to oversee 
these cleanups will help States in making sure that MTBE 
remediation does occur efficiently and effectively.
    To respond directly to your question about the current 
need, we think we have enough money for fiscal year 2001. We 
are looking now, with our Air Office, as to whether or not we 
want, in subsequent years--2002 and beyond--to seek additional 
funding out of the LUST Trust Fund due to the additional threat 
and new challenge posed by MTBE contamination.
    Senator Chafee. Well, thank you very much.
    Maybe just in conclusion, I suppose every Department 
director that puts together a budget has regrets that there 
wasn't more funding for certain areas. Assuming you're no 
different, what areas do you especially regret not having more 
money for as you put together this budget?
    Mr. Fields. That's a good question.
    One regret I have that has been a ``combination issue'' for 
2 years, the 2000 and 2001 issue--I just can't divorce it--I 
regret that we don't have what we really wanted to have for 
Superfund for fiscal year 2000. That reverberates in 2001 and 
2002, because I only have $1.4 billion in fiscal year 2000, and 
that means that I will not be able to start about 15 new 
construction site projects that I would like to have started 
this year. That means that although for the last 3 years we 
have achieved 85 or more construction completions, we believe 
we can get 85 this year because construction is funded on a 2-
year cycle. You start a project 1 year and you finish it the 
second year. Because I will not be able to start those projects 
in fiscal year 2000 because of the $100 million budget cut, it 
means that I will only be able to achieve an overall number of 
construction completions which is about 75 constructions being 
completed in fiscal year 2001.
    My regret over the last year is that we have not had the 
level of funding that we really need for Superfund, because I 
would like to have been able to continue to do 85 or more 
construction completions. I think everybody who lives around a 
Superfund site wants to get that site cleaned up as quickly as 
possible. So obviously a major priority of mine and this 
Administration is to continue to do, with the resources we have 
available, as many construction completions as we can do. 
Within the limitations of the budget we have, we will produce 
as many cleanups as we can under the Superfund Program.
    Senator Chafee. Thank you very much, sir.
    Mr. Fields. Thank you, Mr. Chairman.
    Senator Chafee. Any other comments?
    [No response.]
    Senator Chafee. The meeting is adjourned.
    [Whereupon, at 11:20 a.m., the subcommittee was adjourned, 
to reconvene at the call of the Chair.]
    [Additional statements submitted for the record follow:]

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

    Good morning. I would like to thank Senator Chafee for holding 
today's oversight hearing on the President's fiscal year 2001 budget 
request for the Office of Solid Waste and Emergency Response. As 
chairman of the committee, I held the first of a series of oversight 
hearings on EPA's hearings and asked that each of the subcommittee 
chairmen followup with detailed hearings on the programs within their 
jurisdiction. Senator Chafee's hearing today is a critical one in that 
process.
    I am particularly interested in looking at how EPA manages risk in 
both the Superfund and RCRA programs. In past years, I often questioned 
the level of funding for the Superfund program, the cost of Superfund 
cleanups, the slow pace of cleanups, and the relative lack of attention 
to or funding for RCRA corrective action cleanups. It seemed to me 
then, and it still does, that EPA invests too much of its limited 
resources on Superfund remedial actionsites, as compared to other 
remediation programs that yield more risk reduction per dollar 
invested, such as RCRA corrective action and the Superfund removal 
program.
    Similarly, on the RCRA corrective action side, hundreds of 
thousands of sites aren't being cleaned up because EPA's regulations 
would require expensive cleanups that are not necessary because of the 
low risk involved at most of these sites. The bottom line is that we're 
spending too many of our limited resources on cleanups without 
targeting the greatest risks. EPA's approach seems to be technology 
driven, rather than risk driven. We need a better system to prioritize 
the use of funds and resources. I hope to do just that through these 
kinds of oversight hearings and then later through an EPA authorization 
bill.
    I also plan to take the first legislative step toward a risk-based 
approach to cleanup by releasing a remediation waste bill. The 
committee has been working for 2 years now to craft a bill that will 
make it easier and less costly to remediate old dirt. The bill would 
facilitate the cleanup of 6,000 hazardous waste sites, and 450,000 
brownfields sites across the country, removing regulatory obstacles 
under RCRA that act as a disincentive to cleanup and helping target 
resources on the sites that present the greatest risk. My goal is to 
ensure that more of these sites get cleaned up. I believe that EPA 
shares that goal and hope that we will be able to work together to 
improve the RCRA corrective action program and bring back these 
contaminated sites into productive use.
    To the extent that EPA has requested additional funds for these 
sites through the RCRA corrective action program, I applaud that. I 
remain concerned, however, that the funds requested are still not 
enough to address high priority risks or even the Agency's GPRA goals. 
I'll look forward to hearing Mr. Fields address that issue.
    I have been working for years to achieve reform in the Superfund 
Program; however, I recognize that there are numerous issues still 
outstanding. I will note that the funding requested for the Superfund 
program is $1.45 billion which is more than the whole budget requested 
for OSWER. We need to set priorities for the money appropriated to EPA 
to implement Superfund. If we can't reach consensus on Superfund 
reform, we should ensure that the money appropriated actually goes to 
cleanup instead of administrative costs.
    I look forward to hearing about the Office of Solid Waste and 
Emergency Response budget request for fiscal year 2001 and hope to work 
with you in setting priorities for the coming years.
                                 ______
                                 
 Statement of Timothy Fields, Jr., Assistant Administrator, Office of 
   Solid Waste and Emergency Response, U.S. Environmental Protection 
                                 Agency
Introduction
    Good morning, Mr. Chairman and members of the subcommittee. I am 
pleased to have this opportunity to appear before you today to discuss 
the state of EPA programs. I will give a brief overview of the Agency's 
fiscal year 2001 budget and address the current status and future 
direction of the Superfund, Resource Conservation and Recovery Act 
(RCRA), brownfields, and Underground Storage Tank (UST) programs.
    EPA and its partners have made significant strides in providing 
some of the best environmental and public health protections in the 
world, while maintaining a strong economy. Building on this record of 
success, the fiscal year 2001 budget charts a course designed to meet 
the environmental challenges of the 21st century. The President's 
fiscal year 2001 budget for EPA requests a total of $7.3 billion to 
protect public health and the environment. It builds on environmental 
progress made under the Clinton-Gore Administration and addresses our 
country's greatest environmental challenges, such as, providing our 
children and communities with cleaner air, cleaner water, cleaner 
lands, and improved quality of life. Major environmental initiatives 
and on-going priorities include:
      Cleaner Water. The budget provides $762 million for the 
Administration's Clean Water Action Plan, with an additional $22 
million in related spending, designed to finish the job of cleaning up 
America's waters. These funds will ensure that Federal agencies, 
States, tribes, and local communities can work together in 
unprecedented ways to improve access to environmental information, 
enhance natural resource stewardship, protect public health, and 
restore the full use of America's lakes, rivers and bays.
      Cleaner Air. The President is requesting $215 million in 
fiscal year 2001 to support partnerships with States, tribal 
governments and local communities so that we collectively can work 
together to improve air quality across the nation. $85 million is 
requested for the Clean Air Partnership Fund to provide a magnet for 
local innovation and investment in clean air. The President's request 
also includes $227 million for the Climate Change Technology Initiative 
to expand voluntary programs that save energy costs and reduce global 
warming.
      Protecting our Children. The President's fiscal year 2001 
budget for EPA provides $68 million for children's health, in order to 
target environmental threats to children such as lead contamination and 
air pollution that causes asthma. $75 million also is dedicated to 
implementation of the Food Quality Protection Act, which for the first 
time sets food safety standards designed specifically to protect 
children.
      Providing for Communities. The Information Integration 
Initiative, which is funded by $30 million in the President's fiscal 
year 2001 budget, represents a fundamentally new approach to ensuring 
broad and immediate public dissemination of environmental data through 
the Internet and by other means. The Better America Bonds initiative is 
an innovative financial tool to provide communities with the resources 
necessary to address problems like brownfields, threatened water 
quality, shrinking parkland, and traffic congestion. Through $690 
million in tax credits over 5 years, Better America Bonds will support 
$10.8 billion in bond authority over 5 years for investments by State, 
local, and tribal governments.
    These innovative and cost-effective approaches to the protection of 
public health and the environment for all Americans and their 
communities represent an important investment in the 21st century.

Office of Solid Waste and Emergency Response
    EPA plays a critical role both in preventing and responding to 
waste-related or hazardous substance releases. The Superfund, 
brownfields, RCRA and UST programs share an important common goal of 
ensuring that America's wastes will be managed and cleaned up in ways 
that prevent harm to people and to the environment. As EPA cleans up 
previously polluted sites, the Agency works to assist surrounding 
communities in restoring them to appropriate uses. I am pleased to 
report to the subcommittee on the significant progress we have made in 
achieving our goals for these programs under the Government Performance 
and Results Act.

Superfund Program
    The Administration is requesting $1.45 billion in discretionary 
budget authority and $150 million in mandatory budget authority in 
support of the Superfund program for fiscal year 2001. The Agency and 
its State and tribal partners have achieved significant progress in 
cleaning up hazardous waste sites. More than three times as many 
Superfund sites have had construction completed in the past 7 years 
than in all of the prior 12 years of the program combined. As of March 
7, 2000, 92 percent of sites on the final NPL are either undergoing 
cleanup construction (remedial or removal) or are completed. More than 
1,000 NPL sites have final cleanup plans approved, and approximately 
6,000 removal actions have been taken at hazardous waste sites to 
immediately reduce the threat to public health and the environment. 
Responsible parties continue to perform approximately 70 percent of new 
remedial work at NPL sites, and more than 32,000 sites have been 
removed from the Superfund inventory of potentially hazardous waste 
sites in order to help promote the economic redevelopment of these 
properties.
    Environmental indicators show that the Superfund program continues 
making significant progress, reducing both ecological and human health 
risks posed by dangerous chemicals in the air, soil, and water. The 
Superfund program has cleaned over 232 million cubic yards of hazardous 
soil, solid waste and sediment, and over 349 billion gallons of 
hazardous liquid-based waste, groundwater, and surface water.
    The Superfund Administrative Reforms have been successful in 
ensuring a fairer, more effective, and more efficient program. Among 
the noteworthy achievements are: 43 site decisions have been reviewed 
by the National Remedy Review Board, resulting in an estimated savings 
of $70 million; 300 remedies have been updated based on changes in 
science and technology, resulting in a projected savings of over $1.4 
billion; more than 300 projects have been evaluated since the 
establishment of the Risk-Based Priority Panel; and Community Advisory 
Groups have been established at 51 non-Federal sites (more than 100 
already exist at Federal facilities).
    In fiscal years 2000 and 2001, the Superfund program will continue 
to emphasize the completion of construction at NPL sites and the use of 
removal actions to protect human health and the environment. Although 
EPA will maintain its current construction completion goal of 85 sites 
for fiscal year 2000, the goal will be 75 sites in fiscal year 2001. 
The cumulative cleanup target for construction completions by the end 
of 2001 is 830. The President's goal of 900 construction completions is 
still scheduled to be achieved by the end of fiscal year 2002. The 
fiscal year 2001 construction completion target is principally a 
consequence of the $100 million reduction (from $1.5 billion to $1.4 
billion) in fiscal year 2000. The fiscal year 2001 budget request for 
Superfund reflects tough choices the Administration had to make in 
balancing its environmental priorities and fiscal responsibility.
    The President's fiscal year 2001 budget requests reinstatement of 
all Superfund taxes (including excise taxes on petroleum and chemicals, 
and a corporate environmental tax). The Superfund tax authority expired 
December 31, 1995. The Trust Fund balance (unappropriated balance) was 
roughly $1.5 billion at the end of fiscal year 1999 and if the 
Superfund taxes are not reinstated, the Fund balance is projected to be 
$200 million at the end of fiscal year 2001. The President's budget 
also requests $150 million in mandatory budget authority to pay for 
orphan shares at Superfund sites.

Brownfields Initiative
    The Agency is requesting $91.7 million in fiscal year 2001 to 
support the Brownfields Initiative. This initiative empowers States, 
local governments, communities, and other stakeholders interested in 
environmental cleanup and economic redevelopment to work together to 
prevent, assess, safely clean up, and reuse brownfields. Brownfields 
are abandoned, idled, or under-used industrial and commercial 
properties where expansion or redevelopment is complicated by real or 
perceived contamination. The General Accounting Office has estimated 
that there are over 450,000 brownfields properties across America.
    Since EPA Administrator Carol Browner announced the Agency's 
Brownfields Initiative on January 25, 1995, significant results have 
already been achieved. The Agency has awarded 307 assessment pilots to 
local communities. These pilots have resulted in the assessment of 
1,687 brownfields properties, cleanup of 116 properties, redevelopment 
of 151 properties, and a determination that 590 properties did not need 
additional cleanup. The Brownfields Initiative has also generated 
significant economic benefit for communities across America. To date 
1,580 cleanup jobs and 4,300 redevelopment jobs have been generated as 
a result of the program. In addition, pilot communities have already 
reported a leveraged economic impact of over $1.8 billion.
    In fiscal year 2000, the Agency will fund as many as 50 additional 
Brownfields Site Assessment Demonstration Pilots for up to $200,000 
each. In addition, EPA will provide funding to 50 existing Brownfields 
Site Assessment Demonstration Pilots for up to $150,000 each for 
continuation and expansion of their brownfields efforts. In fiscal year 
2001, the Administration has requested $8 million to provide 
supplemental funding and technical support to 40 assessment pilots at 
up to $200,000 each. New and ongoing pilots will continue to provide 
EPA, States, local governments, and federally recognized Indian tribes 
with useful information and new strategies for promoting a unified 
approach to environmental site assessment and characterization, and 
redevelopment. These demonstration pilots are estimated to address 5 to 
15 potentially contaminated properties in the participating 
communities.
    The Agency has developed a ``second-stage'' type of brownfields 
pilot program, known as the Brownfields Cleanup Revolving Loan Fund 
(BCRLF) Pilots. These pilots are designed to enable eligible States, 
Tribes and political subdivisions to capitalize revolving loan funds 
for use in the cleanup and reuse of brownfields. To date, 68 BCRLF 
pilots have been awarded. These pilots represent 88 communities and 
include pilot awards to individual eligible entities and coalitions. 
Three BCRLF loans have been made. The Agency has requested funding to 
support more BCRLF pilots in fiscal year 2001
    The centerpiece of the Brownfields National Partnership is the 
Brownfields Showcase Communities project. Under this program, the 
Federal partners designated 16 communities in 1998 to serve as national 
models demonstrating the benefits of collaborative activity to clean up 
and redevelop brownfields. The Partnership is providing a range of 
technical, financial, and staffing support, depending on the particular 
needs of each community. These showcases are beginning to yield 
results, and the Federal partners are planning to designate an 
additional 10 new Showcase Communities in fiscal year 2001.
    In fiscal year 2001, EPA will continue to implement its Brownfields 
Job Training Pilot program to help local citizens take advantage of the 
new jobs created by assessment and cleanup of brownfields. To date, EPA 
has awarded 21 pilots to community-based organizations, community 
colleges, universities, States, tribes, political subdivisions and non-
profit groups. The Agency plans to award 10 additional pilots in fiscal 
year 2001.

RCRA Program
    The Administration is requesting $224 million to support the RCRA 
program in fiscal year 2001. The RCRA program protects human health and 
the environment from hazardous wastes by reducing or eliminating the 
amount of waste generated, and encouraging waste recycling and 
recovery; ensuring that wastes are managed in an environmental safe 
manner, and cleaning up contamination resulting from past mismanagement 
of industrial wastes.
    Some of the efforts the Agency is planning for 2001 for waste 
minimization are to continue to provide leadership, technical 
assistance and support for recycling and source reduction through 
voluntary programs such as our WasteWise and Jobs Through Recycling 
programs. In 1998, the fifth year of the program, WasteWise partners 
reduced over 7.7 million tons of waste through prevention and 
recycling.
    In 2001, EPA plans to remove barriers to recycling through efforts 
such as our streamlined regulations for recycling lead-contaminated 
cathode ray tubes found in many electronic products. The Agency will 
help improve the market for products made from recycled materials by 
developing guidelines for Federal and State purchasing of these 
products. And, EPA will focus waste minimization on persistent, 
bioaccumulative and toxic (PBT) chemicals in hazardous wastes.
    In the area of safe waste management, EPA has a number of efforts 
planned for 2001, such as examining whether to regulate certain wastes 
from the inorganic chemical and paint industries. The Agency is also 
developing concentration-based exemptions to exclude lower risk wastes 
from hazardous waste regulation, and is studying the impact of waste 
management units such as surface impoundments, and developing guidance 
for the management of non-hazardous industrial solid wastes. EPA is 
working to improve test methods and streamline permitting requirements, 
and is re-examining requirements for ``hard-to-treat'' wastes such as 
mercury, arsenic and other toxic heavy metals.
    The RCRA Corrective Action Program is the cleanup program under 
RCRA, and is administered by EPA and authorized States. Approximately 
3,500 facilities must undergo RCRA cleanup. The focus is currently on 
the 1,714 highest priority facilities, where people or the environment 
are likely to be at significant current or potential risk. In July 
1999, EPA announced a series of RCRA reforms that are already producing 
faster and more flexible cleanup actions. Specifically, the cleanup 
reforms reduce impediments to achieving effective and timely cleanups, 
enhance State and stakeholder involvement, and encourage innovative 
approaches. However, as progress is being made, the Agency is beginning 
to address increasingly complex cleanups. The Administration's fiscal 
year 2001 request includes additional resources that are absolutely 
necessary to implement these reforms, and to stay on track to meet the 
goals. Most of the increase will go to State implementors.
    The Agency has been a leader in working with tribes on 
environmental issues. Waste management, particularly open dumps, is a 
significant environmental concern for tribes across the country. In 
fiscal year 2001, EPA will provide funding and technical assistance to 
at least 10 tribes to assist them in developing and implementing solid 
waste management programs, and closing their open dumps. EPA will also 
continue to provide assistance for hazardous waste management.
    Finally, since the RCRA program is predominantly implemented by 
authorized States, one of the Agency's highest priorities continues to 
be providing funding and assistance to State programs, and working with 
States to remove any Federal barriers to making progress in State solid 
and hazardous waste programs.

Underground Storage Tank Program
    The Agency is requesting $90.9 million in fiscal year 2001 to 
support Underground Storage Tank (UST) and Leaking Underground Storage 
Tank (LUST) programs. Of this amount, $18.8 million will support EPA, 
the States' and tribal UST programs in reducing the annual number of 
confirmed releases for USTs, and $72.1 million will support EPA, the 
States and tribes to clean up LUST contamination.
    The Agency's goal is to prevent, detect, and correct leaks from 
USTs containing petroleum and hazardous substances. The strategy for 
achieving this goal is to promote and enforce compliance with the 
regulatory requirements aimed at preventing and detecting UST releases 
and taking corrective action where necessary.
    EPA and States have made significant progress in addressing the UST 
problem. For example, since the inception of the UST program in the 
late 1980's, more than 1.3 million substandard USTs have been closed. 
As a result of those closures, these tanks are no longer sources of 
actual or potential leaks which could contaminate groundwater and soil. 
Currently, the Federal UST requirements apply to approximately 760,000 
active USTs. From the beginning of the program through the end of 
September 1999, approximately 400,000 releases have been discovered 
from tanks and approximately 230,000 cleanups have been completed. In 
fiscal year 2001, EPA expects to complete approximately additional 
21,000 cleanups.
    EPA will continue to work with the States in fiscal year 2001 to 
increase the compliance rate with the spill, overfill, and corrosion 
portion of the regulations which require all substandard USTs be 
upgraded, closed, or replaced. These regulations have improved the 
quality of USTs, which is leading to a reduction in the number of new 
releases, and the States and EPA are continuing inspections and 
enforcement efforts, striving to reach 90 percent compliance by the end 
of fiscal year 2000 and 99 percent by the end of fiscal year 2003.
    EPA will also continue to work with the States to improve the 
compliance rate with the leak detection requirements. One of EPA's 
highest priorities for fiscal year 2001 is to work in conjunction with 
the States, undertaking a major multi-year effort to increase owners' 
and operators' compliance rates with the leak detection requirements. 
This will include compliance assistance, inspections, and enforcement.
Conclusion
    EPA's priorities and budget request for fiscal year 2001 focus on 
the importance of building strong and healthy communities for the 21st 
century. I believe this goal holds particularly true for the cleanup 
programs described in my testimony today. The fiscal year 2001 budget 
reflects the Administration's continuing commitment to address 
environmental problems posed by Superfund sites, brownfields 
properties, RCRA facilities and LUSTs. Environmental problems don't 
just exist in the abstract; they affect thousands of communities across 
the Nation. While we have made great progress in addressing these 
environmental problems, more needs to be done.
                                 ______
                                 
 Responses by Timothy Fields to Additional Questions from Senator Smith

    Question 1a. There is accumulating evidence that the Superfund 
National Priorities List cleanup program is ``ramping down'' or will do 
so soon. For example, the General Accounting Office reported in October 
1999 that 545 sites will be completed between 1999 and 2008. Since the 
Agency is removing 85 sites per year and adding about 30 sites, for a 
net reduction of about 55 sites per year, why is the Superfund budget 
request increasing instead of decreasing especially considering that 
the majority of the sites on the NPL will be coming to completion by 
2008?
    Response. The budget for fiscal year 2001 maintains EPA's pace to 
achieve 900 completions by the end of fiscal year 2002. EPA expects to 
list approximately 40 NPL sites in fiscal year 2000, roughly the same 
number as the Agency listed in 1999. Our workload remains steady as we 
continue work at ongoing sites, and as a result of the approximately 40 
new sites added to the NPL each year. While EPA has achieved 685 
construction completions as of 4/25/00, more than 500 sites will not be 
construction complete by fiscal year 2003. The workload at these sites 
covers all pipeline activities, and steady funding is required to 
continue our current pace of cleanup. It is important to continue 
funding for all phases of the remediation pipeline, including funding 
necessary at sites after ``construction completion'' in order to ensure 
proper post-cleanup management.

    Question 1b. What are the Agency's current plans for NPL listing?
    Response. EPA expects to list approximately 40 NPL sites in fiscal 
year 2000, roughly the same number as the Agency listed in 1999. EPA 
and most States view the NPL as one among a number of options for 
cleaning up hazardous waste sites and releases. In addition to Federal 
actions at NPL sites, sites are being cleaned up by States using 
enforcement actions, voluntary cleanup programs, and State cleanup 
funds. EPA is addressing others sites through Fund-lead removals, 
through enforcement actions under CERCLA, and under other environmental 
statutes. One common theme among many of these cleanups is that the 
alternative of NPL listing is often important to inducing cleanups by 
the responsible parties.

    Question 1c. When is the program anticipated to have a decrease in 
funding needs commensurate with the net decrease in sites listed on the 
NPL?
    Response. EPA believes that funding levels consistent with the 
current budget request will be required for at least the next 5 years. 
Given current site completion projections, EPA will still have the 
responsibility for cleanup work at over 500 existing NPL sites in 
fiscal year 2003. At the same time, EPA will continue to need resources 
to clean up sites newly listed on the NPL. As before, we will focus any 
listing decisions on those sites that States agree should be added to 
the NPL--such as those that have recalcitrant PRPs or where cleanup is 
needed and is not occurring. In recent years, State governments have 
requested that EPA add over 170 new sites to the NPL. We listed 43 
sites on the NPL in 1999, and this year we expect to list roughly the 
same number.
    Predicting the resource needs for the Superfund program beyond 5 
years is much more difficult. The pace of cleanup will be substantially 
affected by the resources appropriated during the next 5 years for the 
Superfund program. We already anticipate that the fiscal year 2000 
budget cut to the Superfund program will have an impact on future 
funding needs. Funding needs will depend greatly on the number and 
character of sites requiring a Federal Government role in cleanup. As 
States, PRPs, and EPA further enhance their abilities to achieve 
successful cleanups at sites without resorting to NPL listing, a larger 
proportion of Federal cleanup resources may be needed for these cleanup 
activities.

    Question 2. Several years ago, EPA proposed and then withdrew a 
Voluntary Cleanup Guidance effort for the States. The issue that caused 
the negotiation of the guidance to break down was how to address 
finality for State decisions. Does the Agency plan any further efforts 
to revive such a guidance?
    Response. You are correct that on November 25, 1997, EPA withdrew 
draft guidance on developing Superfund Memoranda of Agreement (MOAs) 
concerning State voluntary cleanup programs (VCPs). At the time the 
draft guidance was withdrawn, EPA Regions were asked to continue to 
work with their States to support effective State VCPs, including 
entering into VCP MOAs. Since November 1997, EPA and States have signed 
an additional three Memoranda of Agreement, which brings the total 
number of signed MOAs regarding State VCPs to fourteen. EPA plans to 
continue negotiating VCP MOAs under the current process. EPA Regions 
are advised to look to the November 14, 1996, memorandum entitled 
``Interim Approaches for Regional Relations with State Voluntary 
Cleanup Programs'' as a framework for these negotiations. EPA has no 
plans to revive the draft guidance that was withdrawn at the end of 
1997.

    Question 2a. If so, how does the Agency intend to address the issue 
of State finality?
    Response. As stated in the response to Answer 2 above, EPA has no 
plans to revive the draft guidance that was withdrawn at the end of 
1997. EPA plans to continue negotiating VCP MOAs under the current 
process.

    Question 3a. Is the EPA Brownfields Program specifically authorized 
by an Act of Congress?
    Response: The Comprehensive Environmental Response, Compensation 
and Liability Act (CERCLA) section 104 grants the President broad 
authority (delegated to the EPA Administrator) to take response actions 
whenever there is a release or substantial threat of release of 
hazardous substances, and permits the EPA Administrator to undertake 
certain investigative and planning activities deemed necessary and 
appropriate to plan and direct response actions. These are the 
authorities EPA uses to provide cooperative agreements to assist 
States, political subdivisions, and Indian Tribes in assessing 
(brownfields assessment pilots) and/or cleaning up brownfields 
facilities by capitalizing revolving loan funds (Brownfields Cleanup 
Revolving Loan Fund Pilots). CERCLA section 311(b) authorizes EPA to 
conduct a training program in which participants are trained in the 
procedures for the handling and removal of hazardous substances 
(Brownfields Job Training Pilots). EPA's Office of General Counsel 
(OGC) has provided legal opinions in each of these Brownfields Pilots 
areas. The detailed OGC opinions are attached.
                                 ______
                                 
                                                      July 7, 1994.
                               MEMORANDUM

SUBJECT: Legal Authorities to Conduct and Fund ``Brownfield'' Projects

FROM: Earl Salo, Assistant General Counsel for Superfund, Solid Waste 
and Emergency Response Division

TO: Marjorie Buckholtz, Director Office of External Relations Office of 
Solid Waste and Emergency Response

    You have asked for our opinion on whether CERCLA \1\ provides legal 
authority to fund various ``brownfield'' pilot projects. While 
brownfield projects will vary in the methods and activities 
implemented, their ultimate objective remains the same--to return 
contaminated inner city properties to productive use. It is our 
understanding that the sites productive for inclusion under the 
``brownfield'' projects program present either an actual, threatened or 
suspected release of a hazardous substance for which the various 
section 104 response authorities could, as appropriate, be invoked 
(section 104(a) requires a release, or threatened release, while 
section 104(b) provides authority to act whenever there is a reason to 
believe a release has occurred or is about to occur.\2\
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    \1\ Comprehensive Environmental Response, Compensation, and 
Liability Act of 1980 (CERCLA), 42 U.S.C. 9601, et seq., as amended by 
the Superfund Amendments and Authorization Act of 1986 (SARA), P.L. 99-
299.
    \2\ Sections 104 and 111 allow EPA to address pollutants and 
contaminants as well as hazardous substances. This memorandum, however, 
addresses only hazardous substances.
---------------------------------------------------------------------------
    If the activities proposed under a ``brownfield'' project are 
authorized under section 104, they would be appropriate for a section 
104(d)(1) contract or cooperative agreement, and may be funded by the 
Superfund.

Section 104 Authorities
    Section 104(a) grants the President \3\ broad authority to take 
response actions whenever there is a release or substantial threat of a 
release of hazardous substances. The Administrator may:
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    \3\ The President has delegated these authorities to the 
Administrator through Executive Order 12580, section 2(g), dated 
January 23, 1987.

    ``remove or arrange for removal . . . provide for remedial action . 
. . or take any other response measure consistent with the National 
Contingency Plan [NCP] . . . deem[ed] necessary to protect the public 
---------------------------------------------------------------------------
health or welfare or the environment.'' (emphasis added)

    Section 101(23) defines removal actions to include, without 
limitation:

    such actions as may be necessary to monitor, access, and evaluate 
    the release or threat of release of hazardous substances, disposal 
    of removed material . . . security fencing or other measures to 
    limit access, provision of alternative water supplies, temporary 
    evacuation and housing of threatened individuals not otherwise 
    provided for action taken under section 104(b) of this title, and 
    any emergency assistance which may be provided under the Disaster 
    Relief and Emergency Assistance Act [41 U.S.C.A. Sec. 5121 et seq.]

    While section 101(24) defines remedial actions to include:

    those actions consistent with permanent remedy taken instead of or 
    in addition to removal actions . . . such actions at the location 
    of the release as storage, confinement, perimeter protection using 
    dikes, trenches, or ditches, clay cover, neutralization, cleanup of 
    released hazardous substances and associated contaminated 
    materials, recycling or reuse, diversion, destruction, segregation 
    of reactive wastes, dredging or excavations, repair or replacement 
    of leaking containers, collection of leachate and runoff, onsite 
    treatment or incineration, provision of alternative water supplies, 
    and any monitoring reasonably required to assure that such actions 
    protect the public health and welfare and the environment. The term 
    includes the costs of permanent relocation of residents and 
    businesses and community facilities . . . offsite transport and 
    offsite storage, treatment, destruction, or secure disposition of 
    hazardous substances and associated contaminated materials.

    Section 104(b) permits the Administrator to:

    ``undertake such investigations, monitoring, surveys, testing and 
    other information gathering as he any deem necessary or 
    appropriate. . . In addition the [Administrator] may undertake such 
    planning; legal, fiscal, economic, engineering, architectural, and 
    other studios or investigations as he may deem necessary and 
    appropriate to plan and direct response actions . . . .''

    This authority is triggered where the Administrator is authorized 
to act under section 104(a) or when the Administrator has reason to 
believe that a release has occurred or is about to occur. \4\
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    \4\ The authorities in section 104(b) relating to ``illness, 
disease, or complaints thereof'' have delegated to the Secretary or 
Health and Human Resources. E.O. 12580, section 2(a) (Jan. 23, 1987).
---------------------------------------------------------------------------
    ``Brownfield'' project proposals submitted to the Agency cover a 
broad spectrum of activities. One project proposes acquiring an 
abandoned industrial and railway site, removing existing structures, 
remediating any environmental hazards and developing a comprehensive 
civic, municipal services and recreation complex in the center of the 
community. Another pilot project proposes setting up a ``brownfields'' 
policy development forum, creating an electronic ``brownfields'' 
catalog, and conducting economic analysis of specific sites. Several 
other projects propose educating stakeholders about the Superfund 
process, developing a mechanisms to involve community leaders in the 
site screening and selection process, and forming strategies to remove 
environmental and financial barriers to development. These general 
activities should be evaluated on a case by case basis to determine 
whether they constitute response actions authorized under section 104.

Section 104(d) Cooperative Authorization Criteria
    Section 104(d)(1) authorizes the award of contracts or cooperative 
agreements to States, political subdivisions, or Indian tribes to carry 
out actions authorized in section 104. Through cooperative agreements, 
EPA would be authorizing a State, political subdivision, or Indian 
tribe to undertake activities that EPA itself has the authority to 
pursue under sections 104(a) or 104(b), thus satisfying the 
requirements of section 104(d)(1).
    However, before a contract or cooperative agreement is awarded, the 
applicant must satisfy the eligibility criteria of section 104(d) and 
40 CFR Part 35, Subpart O.

Use of Superfund to Support ``Brownfield'' Projects
    Section 111 of CERCLA specifies the purposes for which the 
Superfund any be used, and supports the use of the Superfund for the 
section 104(d)(1) cooperative agreements. Section 111(a)(1) authorized 
the ``[p]ayment of governmental response costs incurred pursuant to 
section 104 of CERCLA. The proposed ``brownfield'' projects would 
qualify for such funding where the activities involved, as described 
above, constituted response actions.
    We note that, under the NCP, the Superfund cannot be used to pay 
for remedial actions at non-NPL sites. See 40 CFR Sec. 300.425. Thus, 
the Agency must ensure that any Superfund money provided through any 
cooperative agreement not be used for remedial action at non-NPL sites. 
\5\ Since the ``brownfield'' project proposals cover a spectrum of 
sites and activities, the Agency must be mindful of this limitation in 
accepting applications, and entering into cooperative agreements for 
those projects.
---------------------------------------------------------------------------
    \5\ This limitation on Superfund use does not apply to removal 
actions (including pre-remedial actions, such as PA/SI RI/FSs, RD, and 
other section 104(b) activities.
---------------------------------------------------------------------------

Conclusion
    Our analysis is limited to the authorities available to conduct, 
under section 104, and fund, under section 111, proposed ``brownfield'' 
projects. We would be happy to provide you and your staff with more 
specific advice on individual projects.
    Please contact me at 202-260-7698, or Rich Albores of my staff, at 
202-260-7981 should you have any, comments or additional questions.
                                 ______
                                 
                    U.S. Environmental Protection Agency,  
                                 Office of General Counsel,
                              Washington, DC 20460, April 25, 1997.

                       ATTORNEY-CLIENT PRIVILEGED

                               MEMORANDUM

SUBJECT: Legal Authority to Provide Financial Assistance to Capitalize 
Brownfields Revolving Loan Fund Programs

FROM: Stephen G. Pressman, Assistant General Counsel, Finance and 
Operations Division (2377)

TO: Linda Garczynski, Director, Outreach/Special Project Staff, Office 
of Solid Waste and Emergency Response (5101)

    You have asked whether CERCLA \1\ provides legal authority to award 
cooperative agreements to assist States, political subdivisions, and 
Indian Tribes (``CA recipients'') in cleaning up brownfields facilities 
by capitalizing revolving loan funds (RLFs). It is our understanding 
that the CA recipients will loan RLF moneys to public and private 
parties, such as non-profit community development corporations, for-
profit companies, and similar organizations, to conduct environmental 
response activities (specifically, removal actions) at brownfields 
facilities.
---------------------------------------------------------------------------
    \1\ CERCLA is the Comprehensive Environmental Response, 
Compensation, and Liability Act of 1980, 42 U.S.C. 9601, et seq., as 
amended.
---------------------------------------------------------------------------
    Under CERCLA Sec. 104(d)(1), EPA may enter into cooperative 
agreements with States, political subdivisions, and Indian tribes to 
carry out environmental response activities at brownfields facilities. 
It is our opinion that CA recipients may carry out such response 
activities by means of RLFs capitalized with CA funds, as described 
below.

Use of Funds to Carry Out Removal Activities
    CERCLA Sec. 104(d)(1) authorizes EPA to award cooperative 
agreements to States, political subdivisions, or Indian tribes to carry 
out actions authorized in Sec. 104. The July 7, 1994 Memo, ``Legal 
Authorities to Conduct and Fund `Brownfield' Projects'' (Earl Salo to 
Marjorie Buckholtz), provides a complete discussion of EPA's authority 
under CERCLA to support environmental response activities at 
brownfields sites.
    As that memo explains, CERCLA Sec. 104(a) provides broad authority 
to take response actions whenever there is a release, or substantial 
threat of release, of a hazardous substance \2\, or pollutant or 
contaminant \3\, including the authority to ``remove or arrange for 
removal . . . [of] such hazardous substance, pollutant, or contaminant 
. . . consistent with the National Contingency Plan . . . .'' 
``Removal'' is defined in CERCLA Sec. 101(23). This definition includes 
actions taken pursuant to CERCLA Sec. 104(b)(1); if EPA is authorized 
to act pursuant to CERCLA Sec. 104(a) or has reason to believe that a 
release has occurred or is about to occur, EPA may, under 
Sec. 104(b)(1), undertake ``investigations, monitoring, surveys, 
testing, and other information gathering,'' and conduct ``such 
planning, legal, fiscal, economic, engineering, architectural, and 
other studies or investigations . . . necessary and appropriate to plan 
and direct response actions .
---------------------------------------------------------------------------
    \2\ As defined in CERCLA Sec. 101(10) and identified in 40 C.F.R. 
Sec. 302.4.
    \3\ As defined in CERCLA Sec. 101(33). The release, or threat of 
release, of a pollutant or contaminant triggers CERCLA response 
authority only if it may present an imminent and substantial danger to 
the public health or welfare. CERCLA Sec. 104(a)(1)(B).
---------------------------------------------------------------------------
    Thus, EPA may award cooperative agreements to States, political 
subdivisions, and Indian tribes to carry out removal activities at 
brownfields facilities.

Use of Funds to Capitalize Revolving Loan Fund Programs
    The purpose of the RLF cooperative agreements is to carry out 
removal activities at brownfields facilities, therefore the awards are 
for an authorized purpose. At issue is whether EPA may award a 
cooperative agreement to support the recipient's accomplishment of that 
purpose by means of a revolving loan fund.
    EPA could not establish its own revolving loan fund for brownfields 
cleanups because the Agency is not authorized to do that under CERCLA. 
CERCLA does not authorize EPA to make loans. Nor does it authorize EPA 
to establish and implement its own revolving fund. Without specific 
statutory authority, a Federal agency cannot operate a revolving fund, 
i.e., a fund into which receipts may be credited and from which the 
receipts may be expended by the Federal agency, without further 
appropriation by Congress, to carry out the purposes of the fund. 44 
Comp. Gen. 87 (1964). \4\
---------------------------------------------------------------------------
    \4\ In the absence of specific statutory authority, money collected 
by a Federal agency ``for the Government'' generally must be deposited 
in the Treasury as miscellaneous receipts under 31 U.S.C. Sec. 3302(b). 
See 69 Comp. Gen. 260 (1990); 67 Comp. Gen. 443 (1988). If EPA could 
make loans with money from Superfund appropriations, repayments might 
go into the Superfund rather than into the general account of the 
Treasury as miscellaneous receipts. See SARA Sec. 517(b), 26 U.S.C. 
Sec. 9507(b)(1996). In any event, the repayments would not ``revolve,'' 
i.e., they would not be available to EPA for additional expenditure 
without further appropriation by Congress.
---------------------------------------------------------------------------
    However, in this case, it is not EPA, but the CA recipients that 
will be establishing and implementing revolving loan funds. There is no 
general prohibition in Federal law on an assistance recipient using 
assistance funds to make loans. \5\ It is well established that the 
expenditure of assistance funds by a recipient of a Federal grant or 
cooperative agreement for the purposes of the award is not subject to 
the various restrictions of Federal law that apply to a Federal 
agency's expenditure of appropriated funds, unless otherwise provided 
in the program statute, regulations, or assistance agreement. See 44 
Comp. Gen. 87 (1964); 43 Comp. Gen. 697, 699 (1964).
---------------------------------------------------------------------------
    \5\ In fact, EPA's general grant regulations, which are a 
codification of an OMB common rule, contemplate recipients making 
loans. See 40 C.F.R. Sec. 31.25(a).
---------------------------------------------------------------------------
    When a grant or cooperative agreement is awarded for a valid, 
authorized purpose, the recipient has discretion in choosing the means 
to implement the project, and is not necessarily subject to 
restrictions that would apply to direct expenditures of the awarding 
agency. For example, a recipient of a valid training grant may use the 
grant funds to pay for the travel costs of persons attending a 
conference, even though Federal agencies are prohibited under 31 U.S.C. 
Sec. 1345 from paying the travel expenses of non-Federal personnel to 
attend a meeting. 62 Comp. Gen. 531 (1983); 55 Comp. Gen. 750 (1976).
    In a case similar to this one, the State Department awarded a grant 
to the University of Hawaii for the establishment of the East-West 
Center. The Center set up a publishing operation (``the Press'') which 
was intended to operate on a revolving fund basis, i.e., the Press 
would establish a revolving fund which would collect receipts from the 
sale of publications and expend the receipts to finance additional 
publications. The State Department informed its appropriations 
committees of this intent in its budget justifications. GAO concluded 
that, although the miscellaneous receipts statute would prohibit a 
Federal agency from using a revolving fund, the grantee's revolving 
fund was proper, because the grant agreement did not prohibit it and 
because grant funds in the hands of the grantee are ``free from the 
statutory restrictions generally applicable to the expenditure of 
appropriated moneys by the . . . Government.'' 44 Comp. Gen. 87 (1964).
    EPA's funding of brownfields RLFs is proper for the same reasons. 
The cooperative agreements will not prohibit the recipients from 
establishing revolving funds, but rather will explicitly approve that 
use of the assistance funds. The Agency has informed its appropriations 
committees of its intent to support brownfields RLFs in its budget 
justifications. \6\ Congress's subsequent lump sum Superfund 
appropriation is deemed to include funding for this program. \7\ Under 
these circumstances, once the CA recipients take the funds, they may 
use them without regard to the restrictions on EPA's use of the funds.
---------------------------------------------------------------------------
    \6\ In EPA's fiscal year 1997 ``Justification of Appropriation 
Estimates for the Committees on Appropriations,'' p. 6-3, the Agency 
stated that it would ``initiate followup cleanup grants of up to 
$350,000 each to capitalize revolving loan funds for 29 pilot 
recipients who completed the initial brownfield pilot stage.''
    \7\ The Conference Report that accompanied EPA's fiscal year 1997 
appropriation, H.R. Rep. No. 104-812, at 71 (Sept. 20, 1996), simply 
stated that the appropriated amount for Superfund included the amount 
requested in the Agency's budget request for brownfields activities.
---------------------------------------------------------------------------

CERCLA Cooperative Agreements
    Before a CERCLA cooperative agreement is awarded, the applicant 
must satisfy the criteria of 40 C.F.R. Part 35, Subpart O. including 
section 35.6200, which details the specific requirements for removal 
response cooperative agreements. The cooperative agreement should 
contain specific terms and conditions to ensure that the Federal 
interests and objectives are carried out, including the requirement 
that loans support removal activities authorized by CERCLA Sec. 104.
    The cooperative agreements are also subject to the Agency's general 
grant regulations at 40 C.F.R. Part 31. These include the requirement 
that the Agency use payment methods that minimize the time elapsing 
between transfer of funds to the recipient to capitalize the RLF and 
subsequent disbursement from the RLF. 40 C.F.R. Sec. 31.21(b). Once the 
funds have been loaned or otherwise applied to the purposes authorized 
in the cooperative agreement, repayments of principal plus interest are 
``program income'' to the recipient. 40 C.F.R Sec. 35.6290; 40 C.F.R. 
Sec. 31.25(a). \8\ See also 71 Comp. Gen. 387, 388 (1992).
---------------------------------------------------------------------------
    \8\ Program income is ``gross income received by the grantee or 
subgrantee directly generated by a grant supported activity, or earned 
only as a result of the grant agreement during the grant period.'' 40 
C.F.R. Sec. 31.25(b).
---------------------------------------------------------------------------
    Program income ordinarily is deducted from a recipient's allowable 
costs and therefore reduces the amount due a recipient under a 
cooperative agreement. \9\ 40 C.F.R. Sec. 31.25(g)(1). However, EPA may 
include a term and condition in the cooperative agreement that 
authorizes the CA recipient to retain and use program income to further 
the purposes of the cooperative agreement. 40 C.F.R. Sec. 31.25(g)(2). 
Such a provision should be included in the brownfields RLF cooperative 
agreements so that program income in the form of principal and interest 
repayments can be used for additional loans for removal activities at 
brownfields facilities. The Agency will have to consider how that 
provision should address repayments of principal and interest after the 
project period has expired.
---------------------------------------------------------------------------
    \9\ Allowable costs for tribes, State, and local governments are 
determined in accordance with OMB Circular A-87, ``Cost Principles for 
State and Local Governments'' and the terms of the cooperative 
agreement.
---------------------------------------------------------------------------
    Program income does not include interest earned by the recipient on 
cooperative agreement funds prior to their disbursement or expenditure 
for purposes of the cooperative agreement. 40 C.F.R. Sec. 31.25(a). 
Such interest is governed by 40 C.F.R. Sec. 31.21(i), under which the 
recipient must, under certain circumstances, remit to the Federal 
grantor agency interest earned on advances of funds.
    Care must be taken to ensure that the Agency does not use financial 
assistance to undertake indirectly an activity that it cannot carry out 
directly. Consistent with the Federal Grant and Cooperative Agreement 
Act, 31 U.S.C. S6305, EPA can be substantially involved in the 
activities supported by a cooperative agreement (in contrast to the 
Agency's more limited role under a grant agreement). Nonetheless, 
assistance--whether in the form of a cooperative agreement or a grant--
can be awarded only if the principal purpose is to support activities 
that CA recipients carry out for their own purposes. See EPA Order 
5700.1, ``Policy on Distinguishing Between Acquisition and 
Assistance,'' p. 7 (March 24, 1994). Consequently, although EPA can be 
substantially involved, the Agency cannot use the cooperative 
agreements to indirectly establish Federal revolving loan funds by 
dictating the priorities of CA recipients for RLF supported removal 
actions.
    Individual brownfields RLF programs may raise additional legal 
issues, including how to address program income in the close-out of 
cooperative agreements. We will be glad to provide advice on them as 
needed. Please contact Jim Drummond (260-6316) or me (260-7725) if you 
have any questions.
                                 ______
                                 
                    U.S. Environmental Protection Agency,  
                                 Office of General Counsel,
                                Washington, DC 20460, May 29, 1997.

                               MEMORANDUM

                       ATTORNEY-CLIENT PRIVILEGED

SUBJECT: CERCLA Sec. 311(b)(9)(A) Training Grants

FROM: Leslie Darman, Finance and Operations Division

TO: Linda Garczynski, Director, Outreach/Special Projects Office of 
Solid Waste and Emergency Response

    This memorandum responds to your question as to the scope of 
training activities authorized under Sec. 311(b)(9)(A) of the 
Comprehensive Environmental Response, Compensation and Liability Act 
(CERCLA), which provides:

    The Administrator is authorized and directed to carry out, through 
    the Office of Technology Demonstration, a program of training and 
    an evaluation of training needs for each of the following:
    (A) Training in the procedures for the handling and removal of 
    hazardous substances for employees who handle hazardous substances.
    (B) Training in the management of facilities at which hazardous 
    substances are located and in the evaluation of the hazards to 
    human health presented by such facilities for State and local 
    health and environment agency personnel.

    Specifically, you asked whether a Sec. 311(b)(9)(A) training 
program would have to train workers in alternative and innovative 
treatment technologies since subsection (b) of Sec. 311 is entitled 
``Alternative or innovative treatment technology research and 
demonstration program,'' and the majority of subsection (b)'s 
provisions are devoted to that program.
    For the reasons discussed below, I conclude that Sec. 311(b)(9) 
authorizes EPA to conduct a training program not limited to training in 
alternative and innovative technologies. This authority is separate and 
distinct from that provided to the Department of Heath and Human 
Services (HHS) under other subsections of Sec. 311.

Scope of training activities authorized by Sec. 311(b)(9)
    Although other interpretations are conceivable, the better reading 
of Sec. 311(b)(9) is that the training programs authorized by it are 
not limited to training in alternative or innovative treatment 
technologies. An examination of subsections (b)(1), (9) and (10) 
together warrants this conclusion. Subsection (b)(10) provides such a 
narrow definition of alternative or innovative treatment technologies 
that if it applied to the training programs under (b)(9) it would give 
rise to an inconsistency between the plain language of the two 
subsections. \1\ Training in ``the procedures for the handling and 
removal of hazardous substances'' or in the ``management of facilities 
at which hazardous substances are located and in the evaluation of the 
hazards to human health presented by such facilities'' as provided by 
(b)(9) contemplates training in a wider range of activities than those 
contemplated by (b)(10). Most significantly, however, the plain 
language of subsection (b)(9) does not indicate that the training 
authorization is limited only to training in alternative and innovative 
treatment technologies. Thus, the training activities authorized under 
subsection (b)(9)--``in the procedures for the handling and removal of 
hazardous substances'' and ``in the management of facilities at which 
hazardous substances are located'' are not limited to training in 
alternative and innovative treatment technologies.
---------------------------------------------------------------------------
    \1\ ``Alternative or innovative treatment technologies'' is defined 
in Sec. 311(b)(10):

    For the purposes of this subsection, the term ``alternative or 
innovative treatment technologies'' means those technologies, including 
proprietary or patented methods, which permanently alter the 
composition of hazardous waste through chemical, biological, or 
physical means so as to significantly reduce the toxicity, mobility, or 
volume (or any combination thereof) of the hazardous waste or 
contaminated materials being treated. The term also includes 
technologies that characterize or assess the extent of contamination, 
the chemical and physical character of the contaminants, and the 
stresses imposed by the contaminants on complex ecosystems at sites.
---------------------------------------------------------------------------
    This reading of Sec. 311(b)(9) is corroborated by the language of 
Sec. ill(n) which specifies authorized uses of appropriations from the 
Hazardous Substance Superfund. Section 111(n)(1) specifies a limit on 
the amount available ``for the purposes of carrying out the applied 
research, development and demonstration program for alternative or 
innovative technologies and training program authorized under section 
[311(b)] of this title . . .'' (emphasis added). By referring to two 
programs under the authorization of appropriations for Sec. 311(b), 
Congress acknowledges both a relationship and a distinction between the 
training program described in Sec. 311(b)(9) and the alternative or 
innovative treatment technology program described in other subsections 
of 311(b).

Role of EPA in Sec. 311 training programs
    Both the statute itself and the legislative history indicate that 
Congress intentionally gave similar training authority to both EPA and 
HHS. First, Sec. 311(b)(9) expressly provides that the Administrator of 
EPA is authorized and directed to carry out a training program whereas 
HHS, through the National Institute for Environmental Health Sciences 
(NIEHS) is also given authority to conduct a training program under 
Sec. 311(a) and 42 U.S.C. Sec. 9660a. Similarly, two separate 
subsections of Sec. 111 (Uses of the Fund) cover the two training 
programs, affirming that Congress intended HHS to have training 
authority under Sec. 311(a) and EPA to have training authority under 
Sec. 311(b). Section 111(n)(1) authorizes using the Fund for the 
purpose of Sec. 311(b), including the ``training program authorized 
under section [311](b)'' whereas Sec. 111(n)(2) provides a separate 
authorization for training activities under Sec. 311(a).
    The legislative history, although sparse on this point, leads to 
the same conclusion. Senator Stafford, who first introduced a research 
and training amendment to CERCLA remarked that the amendment is 
designed to ``provided research and training authority to both EPA and 
HHS . . . . [since they] have the broad range of experience necessary 
to plan and implement the variety of activities that are needed to 
strengthen current research efforts and to increase . . . the cadre of 
appropriately trained personnel.'' Congressional Record, September 16, 
1985; reprinted in Congressional Research Service, A Legislative 
History of the Superfund Amendments and Reauthorization Act of 1986, at 
1118 (1990) (emphasis added) [hereinafter Legis. History]. Furthermore, 
in commenting on the language of the amendment, Senator Stafford 
explained that it ``acknowledges the important health-related research 
and training expertise that reside within [NIEHS] and the National 
Institute for Occupational Safety and Health [NIOSH], but in no way 
does the amendment imply that these two institutes are or should be the 
only sources of awards.'' Id.

Limitations and Requirements of Training Programs under Sec. 311(b)(9)
    The following list sets forth some of the limitations and 
requirements of a training program authorized by Sec. 311(b)(9) and 
funded by a grant under the authority of Sec. 311(b)(3): \2\
---------------------------------------------------------------------------
    \2\ The requirements of Sec. 311(b)(3) apply because that is the 
source of EPA's authority to award training grants under 
Sec. 311(b)(9); subsection (b)(9) does not itself authorize EPA to 
award grants. The Agency has long interpreted Sec. 311(b)(3) to provide 
EPA with authority to award grants and enter into contracts to carry 
out all of the activities authorized under Sec. 311(b), including 
(b)(9). The Agency views the training program under subsection (b)(9) 
as a program within the larger program described in Sec. 311(b). This 
interpretation is consistent with one of the stated purposes of 
Sec. 311: ``[t]o establish a comprehensive and coordinated Federal 
program of research, development, demonstration, and training for the 
purpose of promoting the development of alternative and innovative 
treatment technologies . . .'' Pub. L. No. 99-499, Sec. 209(a)(1), 100 
Stat. 1613, 1708 (1986). It also comports with Sec. 111(n)(1), which 
provides a single authorization of appropriations for all of the 
activities authorized under Sec. 311(b), including training. The broad 
authority in Sec. 311(b)(9) to carry out a training program is 
complementary to--but not limited by--the more narrow alternative and 
innovative treatment technology program also established under 
Sec. 311(b). To be sure, the statute is ambiguous as to whether the 
grant authority in Sec. 311(b)(3) applies to the training program in 
Sec. 311(b)(9). While the legislative history does not completely 
clarify the ambiguity, it indicates that it is reasonable for the 
Agency to interpret Sec. 311 as providing for one overarching program 
to promote alternative and innovative treatment technologies that 
includes within it a training program not limited to training in 
alternative and innovative treatment technologies, and therefore the 
grant authority in subsection (b)(3) extends to the training program in 
(b)(9). In the conference report, the substitute for the House and 
Senate versions of Sec. 311 is described as creating ``four new 
programs'' identified as ``the hazardous substance research and 
training program . . . the alternative and innovative treatment 
technology research and demonstration program . . . the hazardous waste 
research program . . . [and] a program for university hazardous 
substances research.'' Legis. History at 5093-94. These programs 
correspond to the four programs described in subsections (a) through 
(d) of Sec. 311. If Congress intended the training program authorized 
under Sec. 311(b)(9) to be completely separate from the alternative and 
innovative treatment technology research and demonstration program 
under Sec. 311(b), presumably it would have described a fifth program. 
Furthermore, as noted above, in commenting on an earlier version of the 
amendment, Senator Stafford explained that ``in no way does the 
amendment imply that [NIEHS and NIOSH] are or should be the only 
sources of awards'' for research and training activities. Legis. 
History at 1118. Because the Agency's interpretation is reasonable and 
otherwise permissible, it is entitled to deference under Chevron USA v. 
NRDC, 467 U.S. 837 (1984). Nonetheless, it would be helpful if the 
Agency's authority to award grants under subsection (b)(9) could be 
clarified during the reauthorization of CERCLA.
---------------------------------------------------------------------------
    1. The program must train participants in ``the procedures for the 
handling and removal of hazardous substances,'' which includes training 
for jobs in sampling, analysis, and site remediation, for example. \3\ 
Sec. 311(b)(9)(A).
---------------------------------------------------------------------------
    \3\ In addition, section 311(b)(9)(B) authorizes training in ``the 
management of facilities at which hazardous substances are located and 
in the evaluation of the hazards to human health presented by such 
facilities for State and local health and environment agency 
personnel.'' These training activities are not discussed here based on 
your description of the proposed training program.
---------------------------------------------------------------------------
    2. The recipients of grants, cooperative agreements, or contracts 
must be ``persons, public entities, and nonprofit private entities 
which are exempt from tax under section 501(c)(3)'' of the Internal 
Revenue Code. Sec. 311(b)(3).
    3. ``To the maximum extent possible,'' the Agency is to enter into 
``appropriate cost share arrangements.'' Sec. 311(b)(3).
    4. The Administrator has delegated the authority to carry out the 
training program under Sec. 311(b) to the Assistant Administrator for 
Research and Development, to be exercised in accordance with plans and 
priorities developed in consultation with the Assistant Administrator 
for Solid Waste and Emergency Response or designee. Delegations Manual, 
14-18-A, 1200 TN 168 (September 13, 1987).
    If you have any further questions, please feel free to contact me.
                                 ______
                                 
                    U.S. Environmental Protection Agency,  
          Office of Administration and Resource Management,
                                Washington, DC 20460, July 8, 1998.

                               MEMORANDUM

SUBJECT: Response to OIG's Draft Audit Report on Statutory Authority 
for EPA Assistance Agreements, Draft Audit Report No. E3AMF8-11-0008

FROM: Alvin M. Pesachowitz, Acting Assistant Administrator for 
Administration and Resources Management (3101)

TO: Elissa R. Karpf, Deputy Assistant Inspector General for External 
Audits (2421)

    Thank you for the opportunity to provide comments on the Draft 
Audit Report on Statutory Authority for EPA Assistance Agreements E3 
AMF8-11-0008. This audit raised some very important issues and we 
appreciate the chance to respond to your findings, We also appreciate 
your office's professional attitude and thoughtful approach in alerting 
us to your concerns.
    The Office of Grants and Debarment (OGD) has worked with the Office 
of General Counsel (OGC), the Office of Prevention, Pesticides and 
Toxic Substances (OPPTS), and the Outreach and Special Projects Staff 
(OSPS) within the Office of Solid Waste and Emergency Response (OSWER) 
to provide comments on the OIG's findings and recommendations. All of 
the offices were very cooperative and helpful, and each reviewed ant 
provided comments on the Draft Report. As indicated below, contrary to 
many of the audit findings, the Agency believes that the activities 
questioned in the Draft Report are authorized by EPA's statutes. 
Although we disagree with many of the audit findings, we concur with 
the audit recommendations. The actions recommended will help ensure 
that our assistance programs continue to be administered properly and 
that activities funded by EPA are within the Agency's assistance 
authorities.
    Set forth below are our comments an the scope of the Agency's grant 
making authorities and the Agency's response to the recommendations 
contained in the Draft Report. Attached are memoranda containing the 
specific comments made by OPPTS and OSWER on the Draft Report.

                        I. STATUTORY AUTHORITIES

    The Draft Report identifies 25 assistance agreements the OIG 
believes are not authorized by the statutes cited in the respective 
award documents. focusing in particular on the grant authorities 
provided in CERCLA Sec. 311(c), TSCA Sec. 10(a), FIFRA Sec. 20, and 
FIFRA Sec. 23. These statutes authorize grants for activities such as 
``research,'' ``development,'' ``monitoring,'' ``enforcement,'' and 
``training''. None of these terms are defined in their respective 
statutes; nor, as the OIG acknowledges, do the legislative histories of 
these provisions provide evidence as to how Congress intended these 
terms to be interpreted. As a result, the OIG's interpretations are 
based on its opinions and beliefs as to their meanings. As the Draft 
Report indicates, the issues involved in the interpretation of these 
provisions are not clear-cut, and reasonable people may have differing 
opinions regarding the scope of these authorities.
    When, as here, there are a range of permissible legal 
interpretations, it is within the Agency's discretion to adopt the 
interpretation that it believes will best enable it to meet statutory 
goals and objectives. As discussed below, in the absence of statutory 
definitions or clarifying legislative history, the Agency has adopted 
what it believes are permissible interpretations of the terms that 
further the goals and objectives of CERCLA, TSCA, and FIFRA. While the 
Agency believes that the statutes permit these grants, we concur with 
the recommendation that EPA should seek broader authority to clarify 
that supported activities are authorized and to permit the Agency to 
provide financial assistance for a wider range of activities.

Awards Made Under CERCLA
            CERCLA Sec. 311(c)
    The Draft Report concludes that nine assistance agreements were not 
authorized by CERCLA Sec. 311(c), which provides for grants to 
``support. . . research with respect to the detection, assessment, and 
evaluation of the effects on and risks to human health of hazardous 
substances and detection of hazardous substances in the environment.'' 
Based on the discussion in the Draft Report and the analysis provided 
in Appendix A, it appears the OIG objects to these grants on two 
grounds. The first is that the term ``research'' as used in CERCLA, 
Sec. 311(c) cannot be interpreted to include socio-economic research. 
The second is that improper methodologies were used to conduct the 
research, e.g., the use of meetings, conferences, and newsletters.
    This provision was added to CERCLA in 1986 as part of the Superfund 
Amendments and Reauthorization Act of 1980 (SARA), but, as the OIG 
indicates, the legislative history of the provision offers no insight 
with regard to the scope of the term ``research.'' In the absence of 
such guidance, the Draft Report Dates that the OIG bases its opinion 
regarding the interpretation of the statute upon what it considers to 
be the ``historical context in which CERCLA was passed, i.e., that 
Congress was concerned about contamination from manufacturing, 
municipal landfills, mining, and Federal defense and energy 
activities.'' Based on this ``historical context,'' the OIG believes 
CERCLA Sec. 311(c) authorizes research ``aimed at understanding and 
mitigating the effects of pollutants on human health'' and objects to 
awards to ``fund technical assistance to State and local government 
officials, address environmental justice issues, study the effects of 
and regulations on the economic redevelopment of brownfields sites, and 
fund meetings and conferences.''
    The Agency believes that the scope of CERCLA Sec. 311(c) research, 
even as defined by the OIG, would encompass what is referred to in the 
Draft Report as socio-economic research as this research is aimed at 
understanding and mitigating the effects of pollutants on human health. 
The types of research projects that the OIG question--projects 
addressing environmental justice issues, studying the effects of law 
and regulations on the economic redevelopment of brownfields sites, and 
funding meetings and conferences--may very well be aimed at 
``understanding and mitigating the effects of pollutants on human 
health,'' depending on the specific activities involved. Thus, under 
the OIG's standards those projects arguably would be authorized under 
CERCLA Sec. 311(c). (We agree that technical assistance generally is 
not research).
    More importantly, the plain language of the statute does not limit 
the term ``research'' to exclude the activities funded under these 
agreements. EPA has interpreted ``research'' to include study that 
extends to the social sciences, including socio-economic, 
institutional, and public policy issues, as well as the ``natural'' 
sciences. CERCLA Sec. 311(c) includes two separate clauses modifying 
the term ``research'': research with respect to the detection 
assessment, and evaluation of the effects on and risks to human heals 
of hazardous substances'' and research with respect to the ``detection 
of hazardous substances in the environment.'' Nothing in either of 
these clauses limits the research to the ``natural'' sciences. 
Furthermore, limiting the definition to include only research on the 
effects on ``human health'' would render superfluous a second phrase 
that modifies the term ``research'' i.e., ``detection of hazardous 
substances in the environment,'' Pursuant to principles of statutory 
construction, the statute thus carries a broader meaning than the one 
advanced by the OIG. This interpretation of ``research'' under CERCLA 
Sec. 311(c) is consistent with Sec. 102(2)(A) of the National 
Environmental Policy Act (NEPA), 42 U.S.C. Sec. 4332(2)(A) (directing 
agencies to use an interdisciplinary approach ensuring the integrated 
use of the natural and social sciences),
    The OIG's second objection to these awards is that research under 
CERCLA Sec. 311(c) cannot include the funding of meetings, conferences, 
and workshops. ``Research,'' however, can be carried out through a 
range of activities, including not only ``bench'' science but also 
other forms of information gathering and exchange, such as conferences 
and newsletters. Among other things, conferences can be used to obtain 
additional information, refine methodologies and findings, and 
stimulate further research through dialogs with affected groups, as 
well as to publicize or explain the results of a research project. 
Research encompasses more than theoretical inquiries characteristic of 
a laboratory or academic setting.
    However, we agree with the OIG's assessment that the Agency could 
do a better job of ensuring that recipients explain how funded 
activities further the research objective of the agreement. As the OIG 
notes, additional training and guidance for program offices would be 
useful, and we will consider including a provision in the guidance 
about linking conference funding with the research aims of the award. 
Additionally, OSWER has begun requiring that CERCLA Sec. 311(c) 
recipients agree to a term and condition, ensuring that their 
activities remain focused on research authorized by the statute.
    The Draft Report notes several instances in which OGC advised OSWER 
that while CERCLA Sec. 311(c) could be interpreted to encompass a broad 
range of research activities, because certain activities were not 
explicitly authorized, they might be challenged if audited. OIG 
interprets this advice as barring the awards. OGC, however, did not say 
that the activities were not legally supportable. Given several legally 
supportable positions, OSWER made a reasoned judgment, within its 
discretion, to award the grants.
    Finally, the OIG recommends that, in order to comply with CERCLA 
Sec. 311(c), all awards must be coordinated with the Secretary of 
Health and Human Services (HHS). While the statute requires the Agency 
to coordinate its research with HAS to avoid duplication of effort, the 
statute does not require that each award must be coordinated with HHS, 
As indicated in the attached response from OSWER, they will undertake 
additional efforts to better coordinate their CERCLA Sec. 311(c) 
research with HHS.

CERCLA Sec. Sec. 311(b)(3) and (b)(9)(A)
    In an addendum to the statutory authority report, the OIG 
questioned whether CERCLA Sec. Sec. 311(b)(3) and (9) authorize grants 
for Brownfields Job Training and Development Demonstration Pilots. 
CERCLA Sec. 311(b)(3) provides:

    In carrying out the program, the Administrator is authorized to 
    enter into contracts and cooperative agreements with, and make 
    grants to, persons, public entities, and nonprofit private entities 
    which are exempt from tax under section 501(c)(3) of Title 26. The 
    Administrator shall, to the extent possible, enter into appropriate 
    cost sharing arrangements under this subsection.

    CERCLA Sec. 311(b)(9) provides:

    The Administrator is authorized and directed to carry out, through 
    the Office of Technology Demonstration, a program of training and 
    an evaluation of training needs for each of the following:
    (A) Training in the procedures for the handling and removal of 
    hazardous substances for employees who handle hazardous substances.
    (B) Training in the management of facilities at which hazardous 
    substances are located and in the evaluation of the hazards to 
    human health presented by such facilities for State and local 
    health and environment agency personnel,

    CERCLA Sec. 311(b)(10) provides:

    For the purposes of this subsection, the term ``alternative or 
    innovative treatment technologies'' means those technologies, 
    including proprietary or patented methods, which permanently alter 
    the composition of hazardous chaste through chemical, biological, 
    or physical means so as to. significantly reduce the toxicity, 
    mobility, or volume (or any combination thereof) of the hazardous 
    waste or contaminated materials being treated. The term also 
    includes technologies that characterize or assess the extent of 
    contamination, the chemical and physical character of the 
    contaminants, and the stresses imposer by the contaminants on 
    complex ecosystems at sites.

    The OIG considered an OGC memorandum of May 39, 1997, in which OGC 
concluded that Sec. 311(b)(9) authorizes EPA to conduct a training 
program not limited to training in alternative and innovative 
technologies ant to make grants for that purpose under Sec. 311(b)(3). 
The OIG disagreed with that conclusion, maintaining that the better 
interpretation of CERCLA Sec. Sec. 311(b)(3) and (b)(9) is that they 
authorize the Agency to make grants for training but only insofar as 
the training is related to alternative or innovative treatment 
technologies. The Brownfields Training and Development Pilots, 
according to the OIG, ``have nothing to do with alternative or 
innovative technologies and are not targeted at the audience (personnel 
handling hazardous waste and/or managing hazardous waste facilities) 
that Congress contemplated when it passed Sec. 311(b)(9).'' The OIG 
believes that EPA is only authorized to make grants for training 
``related to alternative or innovative treatment technologies, i.e., 
training intended to acquaint personnel handling hazardous waste and/or 
managing hazardous waste facilities with changed procedures wrought by 
alternative or innovative treatment technologies.'' Subsequently, In a 
meeting attended by the OIG, OGC, and OSWER, it became clear that the 
OIG also believes that the training programs funded by grants under 
CERCLA Sec. Sec. 311(b)(3) and (9) can only be for individuals already 
employed in handling hazardous substances at the time they receive the 
training.

Eligible Training Activities
    As a result of the OIG memo, OGC has reevaluated its interpretation 
of CERCLA Sec. Sec. 311(b)(3) and (9) and has identified what it now 
believes is a more defensible interpretation. OGC does not believe that 
the following interpretation of the statute is the only one possible; 
other broader interpretations could also be defended. Nonetheless, OGC 
will, as a prudential matter, encourage programs to adhere to its new 
interpretation.
    The context in which alternative or innovative technologies are 
implemented--hazardous waste site cleanups--is the same context in 
which non-alternative or innovative treatment technologies are used. 
Consequently, if the training authorized by Sec. 311(b)(9) were limited 
to training in skills that are only used in the implementation of 
alternative or innovative treatment technologies, then only a very 
limited range of skills could be taught to trainees. Such a narrow 
interpretation 311(b)(9) would be difficult to defend, particularly 
because Sec. 311(b)(9) does not make any reference to a requirement 
that authorized activities be limited to training in alternative or 
innovative treatment technologies and the plain language of 
Sec. 311(b)(9) authorizes training in a much broader range of 
activities--``the handling and removal of hazardous substances.'' 
Moreover, there is nothing in the legislative history that suggests 
that Congress intended the training to be limited to training in skills 
that have an exclusive relationship to alternative or innovative 
treatment technologies.
    Therefore, OGC interprets CERCLA Sec. Sec. 311(b)(3) and (b)(9)(A) 
to authorize grants for training in ``the handling and removal of 
hazardous substances'' which bears a relationship to the use of 
alternative or innovative treatment technologies in the context of a 
cleanup, Under this interpretation, grantees could teach trainees 
skills that would be applicable both to cleanups employing an 
alternative or innovative treatment technology and to cleanups 
employing non-alternative or innovative treatment technology For 
example, training programs could teach the following skills that are 
needed to carry out alternative/innovative bioremediation of 
contaminants for either on- or offsite treatment of contaminated soils; 
excavation skills for removing contaminated soils to the treatment 
area, use of heavy equipment skills for fuming of contaminated soils to 
ensure bioremediation occurs, and monitoring skills to determine levels 
of toxic materials. These same skills would be useful in non-
alternative or innovative treatment technologies.
    Accordingly, in awarding training grants under CERCLA 
Sec. Sec. 311(b)(3) and (b)(9), the program office would have to 
determine that the training activities could be usefully applied to a 
cleanup employing an alternative or innovative technology. The 
determination would be documented in the decision memorandum associated 
with the assistance award. In addition, a term and condition would be 
included in each assistance agreement so that the grantee would be 
adequately informed of this limitation on the types of activities for 
which training could be provided. Both the decision memorandum and the 
assistance agreement would include a statement or condition such as:

    The training provided by tile recipient must be training in the 
    handling and removal of hazardous substances related to the 
    implementation of alternative or innovative treatment technologies 
    as defined in section 311(b)(10) of CERCLA. The recipient may teach 
    trainees skills that are relevant to the implementation of both 
    alternative or innovative treatment technologies and non-
    alternative or innovative treatment technologies.

Eligible Trainees
    In its memorandum, the OIG does not discuss the issue of eligible 
trainees. In a subsequent meeting, however, the OIG asserted that the 
training authorized under Sec. 311(b)(9) may only be provided to 
individuals already employed in the field at the time they receive the 
training.
    The Agency disagrees. CERCLA Sec. 311(b)(9) authorizes training 
``for employees who handle hazardous substances.'' There is nothing in 
Sec. 311(b)(9), however, that requires that trainees must be currently 
employed in handling hazardous substances before they receive training 
in the handling and removal of hazardous substances. The requirement 
that the training be ``for employees'' is satisfied if the training is 
provided for the purpose of training individuals to become employed in 
the field of handling hazardous substances. This is consistent with one 
of the goals Congress sought to accomplish by enacting Sec. 311 of 
CERCLA: ``to increase . . the cadre of appropriately trained 
personnel.'' Congressional Record, September 16, 1985; reprinted 
Congressional Research Service, A Legislative History of the Superfund 
Amendments and Reauthorizarion Act of 1986, at 1118 (1990)(emphasis 
added).

Awards Made Under TSCA

            TSCA Sec. 10(a)
    The OIG objects to three awards made under TSCA Sec. 10(a) to 
support training and public outreach activities, two of which involve 
environmental justice initiatives TSCA Sec. 10(a) authorizes the award 
of grants for ``research, development and monitoring'' as is necessary 
to carry out the purposes of TSCA, The OIG objects that training and 
public outreach are not research, development, or monitoring.
    The Agency interprets the term ``development'' to include may 
training and public outreach activities. In the absence of a statutory 
definition or any legislative history regarding the term, the Agency 
has adopted a permissible interpretation that is consistent with the 
dictionary definition of the term. Included within that definition are 
activities that expand the capability or capacity of an individual or 
an organization. Training and outreach activities expand the capability 
and capacity of individuals by broadening their knowledge base and thus 
the Agency has determined that they are activities encompassed under 
the term ``development.'' As under CERCLA Sec. 311(c), ``environmental 
justice activities'' may or may not be eligible, depending on the 
specific activities).
    In support of its objection, the OIG states that the only training 
authorized in TSCA Sec. 10 is the training for Federal laboratory and 
technical personnel authorized by TSCA Sec. 10(f). This provision 
requires EPA to train and facilitate the training of Federal workers, 
an activity directly benefiting the Federal Government and one properly 
funded through a contract. This is a separate, distinct requirement 
that is unrelated to the Agency's grant-making authority under TSCA. 
The requirement that the Agency train its own personnel does not limit 
its authority to provide grants to support other types of development, 
including training, under TSCA Sec. 10(a).
    With regard to the TSCA Sec. 10(a) requirement for consultation 
with RHS and other agencies, as indicated in the attached OPPTS 
response, although some areas of activity have diminished, others have 
expanded and OPPTS continues to consult and coordinate its activities 
with HHS and other Federal agencies.

            TSCA Sec. 28(a)
    The OIG objected to two awards made under TSCA Sec. 28(a), which 
authorizes grants to States for the ``establishment and operation of 
programs to prevent or eliminate unreasonable risks within the States 
to health or the environment which are associated with a chemical 
substance or mixture and with respect to which the Administrator is 
unable or is not likely to take action under [TSCA] for their 
prevention or elimination.'' The OIG objects that the grantees' work 
plans did not establish that the States mill address chemicals with 
respect to which EPA is unable or unlikely to take action.
    However, the plain language of the statute does not require a 
grantee to affirmatively demonstrate in its work plan that the 
Administrator is unable or unlikely to take action. In most cases, the 
grantee cannot be expected to know whether the Agency is unable or 
unlikely to address a particular risk. The Agency interprets the 
statute as requiring the grant program to be administered in a manner 
that complements, but avoids duplication of, Federal action. Under this 
interpretation, EPA does not award grants to address risks that the 
Agency expects to ``address itself. However, given the standard in the 
statute--``not likely to take action''--there is a possibility that 
changed conditions might result in a decision by the Agency to take an 
action in the future with regard to a particular risk, even though at 
the time of the award it did not appear likely. Furthermore, there is 
no indication in the Draft Report that at the time of the questioned 
awards or, subsequently, that the particular risks addressed in the 
grants were or were likely to become the subject of Federal action, For 
these reasons, we disagree with the OIG's position.
    The Agency concurs that the proper authority for providing grants 
to States to develop and implement CAA Sec. 112(r) programs is CAA 
Sec. 122(l)(4).

Awards Made Under FIFRA

            FIFRA Sec. 20(a)
    The OIG objects to the funding of what it terms ``training'' and 
the ``assessment of training programs'' under FIFRA Sec. 20 which 
authorizes grants for research necessary to carry out the purposes of 
FIFRA and for research into integrated pest management The Agency 
concurs that the term ``research'' generally does not include training. 
However, as discussed above with regard to CERCLA Sec. 311(c), the term 
is not restricted to ``bench science'' and may be carried out through a 
variety of methodologies, including workshops and conferences. 
Furthermore, with regard to the specific activities questioned by the 
OIG, the Agency believes that research on and the evaluation of a 
training program are types of research and thus are within the scope of 
the authority.

            FIFRA 423(a)
    The Draft Report questions five awards made under FIFRA Sec. 23(a) 
because the OIG believes they are ``neither enforcement activities nor 
applicator training,'' but, instead, research authorized under FIFRA 
Sec. 20, FIFRA Sec. 23(a) authorizes cooperative agreements with States 
and Tribes:

    (1) to delegate to any State or Indian tribe the authority to 
    cooperate in the enforcement of this subchapter through the use of 
    its personnel or facilities, to train personnel of the State or 
    Indian tube to cooperate in the enforcement of this subchapter, and 
    to assist States and Indian tribes in implementing cooperative 
    enforcement programs through grants-in-aid; and
    (2) to assist States in developing and administering State 
    programs, and Indian tribes that enter into cooperative agreements, 
    to train and certify applicators consistent with the standards the 
    Administrator prescribes.

    This provision authorizes assistance awards for a comprehensive 
enforcement program. The Agency has interpreted this broad authority 
reasonably to include a wide variety of activities, including those 
that when accomplished would preclude the need to take additional 
enforcement actions. However, consistent with the OIG's recommendation, 
the Agency has requested in the President's Fiscal Year 1999 Budget 
Request enactment of the following clarifying language;

    ``Provided further, that beginning in fiscal year 1999 and 
    thereafter, pesticide program implementation grants under section 
    23(a)(1) of the Federal Insecticide, Fungicide and Rodenticide Act, 
    as amended, shall be available for pesticide program development 
    and implementation, including enforcement and compliance 
    activities.''

Awards Made Under CAA Sec. 103, CWA Sec. 104, and SWDA Sec. 8001
    Although not addressed in the text of the Draft Report, Appendix A 
indicates the OIG also objects to an award to the Global Environment 
and Trade Study for research on environmental regulation and 
competitiveness, eco-labeling, use of trade measures in environmental 
treaties, and the environmental impacts of regional trade agreements. 
The OIG objects on the grounds that the grant authorities cites, CAA 
Sec. 103, CWA Sec. 104, and SWDA Sec. 8001, authorize only what the OIG 
terms ``scientific'' research and not what it terms ``socio-economic'' 
research.
    As discussed these statutory provisions do not require, and the 
Agency does not interpret, the term ``research'' to be confined to the 
``natural'' sciences. Furthermore, as the Draft Report acknowledges, 
these three statutes are so broadly worded that they authorize many 
types of activities, not just research, and certainly not just 
``scientific'' research. For example, Sec. 104 of the Clean Water Act 
authorizes grants to ``conduct and promote the coordination and 
acceleration of, research, investigations, experiments, training, 
demonstrations, surveys, and studies relating to the causes, effects, 
extent, prevention, reduction, and elimination of pollution.'' Such 
activities are not limited to the ``natural'' sciences, but may include 
a variety of socio-economic, institutional, and public policy issues 
that relate to the ``causes, effects, extent, prevention, reduction and 
elimination of pollution.'' A similar enumeration of authorized 
activities under CAA Sec. 103 includes the following phrase: ``. . . 
studies relating to the causes, effects (including; health and welfare 
effects), extent, prevention, and control of air pollution'' (emphasis 
added), indicating that the activities include, but are not limited to, 
``scientific,'' ``health effects'' research.

                    II. RESPONSE TO RECOMMENDATIONS

    Recommendation 1 (to Assistant Administrator for OARM): Coordinate 
with the Assistant Administrators for OSWER and OPPTS and the Associate 
Administrator for Congressional and Intergovernmental Relations to 
obtain clear statutory authority to fund assistance agreements for the 
types of activities questioned in this report, i.e., technical 
assistance, environmental justice, and economic redevelopment studies 
under CERCLA, public outreach, training and environmental justice 
activities under TSCA; and training and training assessments under 
FIFRA.
    OARM Response: OARM agrees with this recommendation. We will work 
with the program offices and OGC to obtain the statutory changes 
necessary to clarify and expand the existing grant authorities.
    Beginning in 1994, OSWER requested that Administration proposals 
for Superfund Reauthorization include a provision which would have 
clarified the types of activities that could be funded under CERCLA 
Sec. 311(c). OSWER has continued to seek this clarification through 
successive rounds of proposed legislation, and they agree to continue 
to work with OARM and OCIR toward this end.
    In addition, as indicated previously, in the President's Fiscal 
Year 1999 Budget Request EPA requested enactment of the following 
clarifying language:

    ``Provided further, that, beginning in fiscal year 1999 ant 
    thereafter, pesticide program implementation grants under section 
    23(a)(i) of the Federal Insecticide, Fungicide and Rodenticide Act, 
    as amended, shall be available for pesticide program development 
    and implementation? including enforcement and compliance 
    activities.''

    Recommendation 2 (to Assistant Administrator for OARM): Clarify 
existing policies and guidance, EPA Order 5730.1 requires program 
offices to designate the program element, statutory authority, and 
delegation of authority in the decision memorandum. Rather than merely 
citing a statute, the program offices should be required to briefly 
explain how the proposed work relates to the authorizing statute. 
Grants Management Offices should return any funding package missing 
this information.
    OARM Response: We agree with the OIG recommendation. We will modify 
EPA Order 5730.1 to include language that specifically requires that 
all future funding packages include an explanation of how the proposed 
grant award relates to the authorizing statute. As a component of the 
current assistance funding packages, the decision memorandum must cite 
the statutory authority which authorizes proposed grant activities. The 
Grants Specialist reviews the decision memorandum to ensure the 
proposed project objectives are consistent with the intent of the 
statutory authority In the fixture we will require the program offices 
to provide written clarification of how the award relates to the 
statutory authority and, if necessary, forward it to OGC for their 
review and opinion.
    OPPTS has already taken action to implement this recommendation. In 
December 1997, they issued guidance to all their grants project 
officers requiring detailed information in grant decision memoranda. 
They have also established a single point of contact within each pace 
to review all grants and ensure the proposed activities are authorized 
under EPA's grant authorities.

    Recommendation 3 (to Assistant Administrator for OARM): Work with 
Senior Resource Officials [SRO] to issue interim guidance to clarify 
the types of activities that their respective program offices will and 
will not fund, including examples of the types of projects the Agency 
should not fund.
    OARM Response: OARM agrees with the recommendation and will work 
with OSWER and OPPTS to develop guidance to clarify the types of 
activities that the Agency will and will not fund under the grant 
authorities.
    In addition, working in close coordination with each of their 
cooperative agreement recipients, OSPS will develop an additional term 
and condition for all cooperative agreements, which will require 
recipients to establish administrative controls to ensure that all 
CERCLA Sec. 311(c) fields are spent only to conduct and disseminate 
research ``including scientific, socioeconomic, institutional and 
public policy research) relating to the effects and risks of hazardous 
substances and detection of hazardous substances in the environment.

    Recommendation 4 (to Assistant Administrator for OARM): Require the 
Grants Administration Division, in coordination with Senior Resource 
Officials, to incorporate into project officers and managers training, 
information on the types of awards the Agency should, and should not, 
fund.
    OARM Response: We agree that grants training material should be 
modified to incorporate specific information about grant authorities. 
We will add these changes to the project officer training classes and 
to the 1-day project officer refresher course which will begin next 
year. We will also include the modified EPA Order 5730.1 as part of the 
handout materials. OPPTS Ad OSWER training will also be tailored to 
emphasize issues specific to their statutory authorities.

    Recommendation to the Assistant Administrator for OSWER: We 
recommend that the Assistant Administrator for OSWER coordinate all 
CERCLA Sec. 311(c) assistance awards with the Secretary of HHS, as 
required by the statute.
    OSWER Response: OSWER has been unable to confirm the existence of 
the ``advisory council'' referred to in CERCLA Sec. 311(c), 
Nonetheless, in recognition of the importance of avoiding duplication 
of effort in our research activities, OSPS will work with the SRO for 
OSWER to establish better coordination of our CERCLA Sec. 311(c) 
research efforts win HHS. This coordination may occur rough OSWER's 
existing relationships untie the National Institute for Environmental 
Health Sciences (NIEHS) and the Agency for Toxic Substances and Disease 
Registry (ATSDR), whose activities we already evaluate through the 
annual Superfund budget formulation process, or we may choose to 
coordinate through other means.
    Thank you again for providing us with the opportunity to comment on 
the Draft Report. If you or your staff have any questions or need 
additional information, please contact Bruce Feldman at 202-564-5325.
                                 ______
                                 
    Question 3b. Your March 21 testimony states that environmental 
protection and economic progress are inextricably linked. Can EPA 
participate in economic development at Superfund sites under current 
authority?
    Response. CERCLA section 104(b) provides broad authority for the 
Agency to conduct studies, ``undertake investigations [and] other 
information gathering,'' as well as ``undertake planning'' and ``other 
studies or investigations as he may deem necessary or appropriate to 
plan and direct response actions. . . .'' In addition, CERCLA section 
104(d) provides authority for the Agency to enter into contracts or 
cooperative agreements with States and their political subdivisions, as 
well as Indian tribes, ``to carry out actions authorized in this 
section [104].'' We believe the current statutory authority to study 
and investigate a site, combined with authority to enter into 
cooperative agreements with State, local and tribal governments, 
provides the basic underlying legal authority to achieve a better 
understanding of local community plans and preferences for future land 
use at Superfund sites.
    One of the key factors in EPA's remedy selection decision process 
is future land use considerations (See attached ``Land Use in the 
CERCLA Remedy Selection Process,'' OSWER Directive No. 9355.7-04, which 
elaborates other Agency statements made in the National Contingency 
Plan, risk assessment guidance and RI/FS guidance). The potential for 
redevelopment and reuse of a contaminated site after it has been 
cleaned up under the Superfund program is relevant to future land use 
considerations. As such, land reuse assessments and planning, 
intergovernmental cooperation, public outreach (including support for 
citizen advisory groups and third-party neutral facilitation services), 
and other technical assistance can be key components in projecting 
future uses of a Superfund site (especially where there are many 
diverse stakeholders). Land use determinations and the development of 
property are principally the domain of local government, citizens and 
the private sector. The earlier EPA seeks the involvement of local 
government and other stakeholders and takes into consideration 
potential future uses of the land, and the more accurately we can 
anticipate what the future use may be, the better our risk assessment 
and remedy selections will be at sites.
    EPA has identified 170 sites where protective remedies have led to 
productive uses. These include all types of uses: commercial/
industrial, recreational, ecological, residential, and governmental. 
Reuses at these sites have supported or will support over 14,000 jobs, 
resulting in millions of dollars in income and taxes. Over 13,000 acres 
have been or will be converted to open space for recreational and 
ecological uses. Through the recently announced Superfund Redevelopment 
Initiative, we hope to extend these successes to many more sites.
                                 ______
                                 
                    U.S. Environmental Protection Agency,  
              Office of Solid Waste and Emergency Response,
                                Washington, DC 20460, May 25, 1995.

                     OSWER DIRECTIVE NO. 9355.7-04

                               MEMORANDUM

SUBJECT: Land Use in the CERCLA Remedy Selection Process

FROM: Elliott P. Laws, Assistant Administrator

TO: Director, Waste Management Division Regions I, IV, V, VII
    Director, Emergency and Remedial Response Division Region II
    Director, Hazardous Waste Management Division Regions III, VI, 
VIII, IX
    Director, Hazardous Waste Division, Region X
    Director, Environmental Services Division Regions I, VI, VII

    Purpose.--This directive presents additional information for 
considering land use in making remedy selection decisions under the 
Comprehensive Environmental Response, Compensation, and Liability Act 
(CERCLA) at National Priorities List (NPL) sites. The U.S. 
Environmental Protection Agency (EPA) believes that early community 
involvement, with a particular focus on the community's desired future 
uses of property associated with the CERCLA site, should result in a 
more democratic decisionmaking process; greater community support for 
remedies selected as a result of this process; and more expedited, 
cost-effective cleanups.
    The major points of this directive are:

      Discussions with local land use planning authorities, 
appropriate officials, and the public, as appropriate, should be 
conducted as early as possible in the scoping phase of the Remedial 
Investigation/Feasibility Study (RI/FS). This will assist EPA in 
understanding the reasonably anticipated future uses of the land on 
which the Superfund site is located;
      If the site is located in a community that is likely to 
have environmental justice concerns, extra efforts should be made to 
reach out to and consult with segments of the community that are not 
necessarily reached by conventional communication vehicles or through 
local officials and planning commissions;
      Remedial action objectives developed during the RI/FS 
should reflect the reasonably anticipated future land use or uses;
      Future land use assumptions allow the baseline risk 
assessment and the feasibility study to be focused on developing 
practicable and cost effective remedial alternatives. These 
alternatives should lead to site activities which are consistent with 
the reasonably anticipated future land use. However, there may be 
reasons to analyze implications associated with additional land uses;
      Land uses that will be available following completion of 
remedial action are determined as part of the remedy selection process. 
During this process, the goal of realizing reasonably anticipated 
future land uses is considered along with other factors. Any 
combination of unrestricted uses, restricted uses, or use for long-term 
waste management may result.

    Discussions with local land use authorities and other locally 
affected parties to make assumptions about future land use are also 
appropriate in the RCRA context. EPA recognizes that RCRA facilities 
typically are industrial properties that are actively managed, rather 
than the abandoned sites that are often addressed under CERCLA. 
Therefore, consideration of nonresidential uses is especially likely to 
be appropriate for RCRA facility cleanups. Decisions regarding future 
land use that are made as part of RCRA corrective actions raise 
particular issues for RCRA (e.g., timing, property transfers, and the 
viability of long-term permit or other controls) in ensuring protection 
of human health and the environment. EPA intends to address the issue 
of future land use as it relates specifically to RCRA facility cleanups 
in subsequent guidance and/or rulemakings.
    This guidance is also relevant for Federal Facility sites. Land use 
assumptions at sites that are undergoing base closure may be different 
than at sites where a Federal agency will be maintaining control of the 
facility. Most land management agency sites will remain in Federal 
ownership after remedial actions. In these cases, Forest Land 
Management Plans and other resource management guidelines may help 
develop reasonable assumptions about future uses of the land. At all 
such sites, however, this document can focus the land use consideration 
toward appropriate options. \1\
---------------------------------------------------------------------------
    \1\ Federal agency responsibility under CERCLA 120(h)(3), which 
relates to additional clean up which may be required to allow for 
unrestricted use of the property, is not addressed in this guidance.
---------------------------------------------------------------------------

Background
    Reasonably anticipated future use of the land at NPL sites is an 
important consideration in determining the appropriate extent of 
remediation. Future use of the land will affect the types of exposures 
and the frequency of exposures that may occur to any residual 
contamination remaining on the site, which in turn affects the nature 
of the remedy chosen. On the other hand, the alternatives selected 
through the National Oil and Hazardous Substance Contingency Plan (NCP) 
[55 Fed. Reg. 8666, March 8, 1990] process for CERCLA remedy selection 
determine the extent to which hazardous constituents remain at the 
site, and therefore affect subsequent available land and ground water 
uses.
    The NCP preamble specifically discusses land use assumptions 
regarding the baseline risk assessment. The baseline risk assessment 
provides the basis for taking a remedial action at a Superfund site and 
supports the development of remedial action objectives. Land use 
assumptions affect the exposure pathways that are evaluated in the 
baseline risk assessment. Current land use is critical in determining 
whether there is a current risk associated with a Superfund site, and 
future land use is important in estimating potential future threats. 
The results of the risk assessment aid in determining the degree of 
remediation necessary to ensure long-term protection at NPL sites.
    EPA has been criticized for too often assuming that future use will 
be residential. In many cases, residential use is the least restricted 
land use and where human activities are associated with the greatest 
potential for exposures This directive is intended to facilitate future 
remedial decisions at NPL sites by outlining a public process and 
sources of information which should be considered in developing 
reasonable assumptions regarding future land use.
    This directive expands on discussions provided in the preamble to 
the National Oil and Hazardous Substance Contingency Plan (NCP); ``Risk 
Assessment Guidance for Superfund Vol. I, Human Health Evaluation 
Manual'' (Part A) (EPA/540/1-89/002, Dec. 1989); ``Guidance for 
Conducting Remedial Investigations and Feasibility Studies Under 
CERCLA'' (OSWER Directive 9355.3-01, Oct. 1988); and ``Role of the 
Baseline Risk Assessment in Superfund Remedy Selection Decisions'' 
(OSWER Directive 9355.0-30, April 22, 1991).
    This land use directive may have the most relevance in situations 
where surface soil is the primary exposure pathway. Generally, where 
soil contamination is impacting ground water, protection of the ground 
water may drive soil cleanup levels. Consideration of future ground 
water use for CERCLA sites is not addressed in this document. There are 
separate expectations established for ground water in the NCP rule 
section 300.430 (a)(1)(iii)(F) that ``EPA expects to return usable 
ground waters to their beneficial uses wherever practicable, within a 
timeframe that is reasonable given the particular circumstances of the 
site.''

Objective
    This directive has two primary objectives. First, this directive 
promotes early discussions with local land use planning authorities, 
local officials, and the public regarding reasonably anticipated future 
uses of the property on which an NPL site is located. Second, this 
directive promotes the use of that information to formulate realistic 
assumptions regarding future land use and clarifies how these 
assumptions fit in and influence the baseline risk assessment, the 
development of alternatives, and the CERCLA remedy selection process.

Implementation
    The approach in this guidance is meant to be considered at current 
and future sites in the RI/FS pipeline, to the extent possible. This 
directive is not intended to suggest that previous remedy selection 
decisions should be re-opened.
Developing Assumptions About Future Land Use
    In order to ensure use of realistic assumptions regarding future 
land uses at a site, EPA should discuss reasonably anticipated future 
uses of the site with local land use planning authorities, local 
officials, and the public, as appropriate, as early as possible during 
the scoring phase of the RI/FS. EPA should gain an understanding of the 
reasonably anticipated future land uses at a particular Superfund site 
to perform the risk assessment and select the appropriate remedy.
    A visual inspection of the site and its surrounding area is a good 
starting point in developing assumptions regarding future land use. 
Discussions with the local land use authorities and appropriate 
officials should follow. Discussions with the public can be 
accomplished through a public meeting and/or other means. By developing 
realistic assumptions based on information gathered from these sources 
early in the RI/FS process, EPA may develop remedial alternatives that 
are consistent with the anticipated future use.
    The development of assumptions regarding the reasonably anticipated 
future land use should not become an extensive, independent research 
project. Site managers should use existing information to the extent 
possible, much of which will be available from local land use planning 
authorities. Sources and types of information that may aid EPA in 
determining the reasonably anticipated future land use include, but are 
not limited to:

      Current land use
      Zoning laws
      Zoning maps
      Comprehensive community master plans
      Population growth patterns and projections (e.g., Bureau 
of Census projections)
      Accessibility of site to existing infrastructure (e.g., 
transportation and public utilities)
      Institutional controls currently in place
      Site location in relation to urban, residential, 
commercial, industrial, agricultural and recreational areas
      Federal/State land use designation (Federal/State control 
over designated lands range from established uses for the general 
public, such as national parks or State recreational areas, to 
governmental facilities providing extensive site access restrictions, 
such as Department of Defense facilities
      Historical or recent development patterns
      Cultural factors (e.g., historical sites, Native American 
religious sites)
      Natural resources information
      Potential vulnerability of ground water to contaminants 
that might migrate from soil
      Environmental justice issues
      Location of onsite or nearby wetlands
      Proximity of site to a floodplain
      Proximity of site to critical habitats of endangered or 
threatened species
      Geographic and geologic information
      Location of Wellhead Protection areas, recharge areas, 
and other areas identified in a State's Comprehensive Ground-water 
Protection Program

    These types of information should be considered when developing the 
assumptions about future land use. Interaction with the public, which 
includes all stakeholders affected by the site, should serve to 
increase the certainty in the assumptions made regarding future land 
use at an NPL site and increase the confidence expectations about 
anticipated future land use are, in fact, reasonable.
    For example, future industrial land use is likely to be a 
reasonable assumption where a site is currently used for industrial 
purposes, is located in an area where the surroundings are zoned for 
industrial use, and the comprehensive plan predicts the site will 
continue to be used for industrial purposes.

Community Involvement
    NPL sites are located in diverse areas of the country, with great 
variability in land use planning practices. For some NPL sites, the 
future land-use of a site may have been carefully considered through 
local, public, participatory, planning processes, such as zoning 
hearings, master plan approvals or other vehicles. When this is the 
case, local residents around the Superfund site are likely to 
demonstrate substantial agreement with the local land use planning 
authority on the future use of the property. Where there is substantial 
agreement among local residents and land use planning agencies, owners 
and developers, EPA can rely with a great deal of certainty on the 
future land use already anticipated for the site. For other NPL sites, 
however, the absence or nature of a local planning process may yield 
considerably less certainty about what assumptions regarding future use 
are reasonable. In some instances the local residents near the 
Superfund site may feel disenfranchised from the local land use 
planning and development process. This may be an especially important 
issue where there are concerns regarding environmental justice in the 
neighborhood around the NPL site. Consistent with the principle of 
fairness, EPA should make an extra effort to reach out to the local 
community to establish appropriate future land use assumptions at such 
sites.

Land Use Assumptions in the Baseline Risk Assessment
    Future land use assumptions allow the baseline risk assessment and 
the feasibility study to focus on the development of Practicable and 
cost-effective remedial alternatives. leading to site activities which 
are consistent with the reasonably anticipated future land use.
    The baseline risk assessment generally needs only to consider the 
reasonably anticipated future land use; however, it may be valuable to 
evaluate risks associated with other land uses. The NCP preamble (55 
Fed. Reg. 8710) states that in the baseline risk assessment, more than 
one future land use assumption may be considered when decisionmakers 
wish to understand the implications of unexpected exposures. Especially 
where there is some uncertainty regarding the anticipated future land 
use, it may be useful to compare the potential risks associated with 
several land use scenarios to estimate the impact on human health and 
the environment should the land use unexpectedly change. The magnitude 
of such potential impacts may be an important consideration in 
determining whether and how institutional controls should be used to 
restrict future uses. If the baseline risk assessment evaluates a 
future use under which exposure is limited, it will not serve the 
traditional role, evaluating a ``no action'' scenario. A remedy, i.e. 
institutional controls to limit future exposure, will be required to 
protect human health and the environment. In addition to analyzing 
human health exposure scenarios associated with certain land uses, 
ecological exposures may also need to be considered.

Developing Remedial Action Objectives
    Remedial action objectives provide the foundation upon which 
remedial cleanup alternatives are developed. In general, remedial 
action objectives should be developed in order to develop alternatives 
that would achieve cleanup levels associated with the reasonably 
anticipated future land use over as much of the site as possible. EPA 
recognizes, however, that achieving either the reasonably anticipated 
land use, or the land use preferred by the community, may not be 
practicable across the entire site, or in some cases, at all. For 
example, as RI/FS data become available, they may indicate that the 
remedial alternatives under consideration for achieving a level of 
cleanup consistent with the reasonably anticipated future land use are 
not cost-effective nor practicable. If this is the case, the remedial 
action objective may be revised which may result in different, more 
reasonable land use(s).
    EPA's remedy selection expectations described in section 
300.430(a)(1)(iii) of the NCP should also be considered when developing 
remedial action objectives. Where practicable, EPA expects to treat 
principal threats, to use engineering controls such as containment for 
low-level threats, to use institutional controls to supplement 
engineering controls, to consider the use of innovative technology, and 
to return usable ground waters to beneficial uses to protect human 
health and the environment. (Some types of applicable or relevant and 
appropriate requirements (ARARs) define protective cleanup levels which 
may, in turn, influence post-remediation land use potential.)
    In cases where the future land use is relatively certain, the 
remedial action objective generally should reflect this land use. 
Generally, it need not include alternative land use scenarios unless, 
as discussed above, it is impracticable to provide a protective remedy 
that allows for that use. A landfill site is an example where it is 
highly likely that the future land use will remain unchanged (i.e., 
long-term waste management area), given the NCP's expectation that 
treatment of high volumes of waste generally will be impracticable and 
the fact that EPA's presumptive remedy for landfills is containment. In 
such a case, a remedial action objective could be established with a 
very high degree of certainty to reflect the reasonably anticipated 
future land use.
    In cases where the reasonably anticipated future land use is highly 
uncertain, a range of the reasonably likely future land uses should be 
considered in developing remedial action objectives. These likely 
future land uses can be reflected by developing a range of remedial 
alternatives that will achieve different land use potentials. The 
remedy selection process will determine which alternative is most 
appropriate for the site and, consequently, the land use(s) available 
following remediation.
    As discussed in ``Role of the Baseline Risk Assessment in Superfund 
Remedy Selection Decisions'' (OSWER Directive 9355.0-30, April 22, 
1991), EPA has established a risk range for carcinogens within which 
EPA strives to manage site risks. EPA recognizes that a specific 
cleanup level within the acceptable risk range may be associated with 
more than one land use (e.g., an industrial cleanup to 10-6 
may also allow for residential use,at a 10-4 risk level.) It 
is not EPA's intent that the risk range be partitioned into risk 
standards based solely on categories of land use (e.g., with 
residential cleanups at the 10-6 level and industrial 
cleanups at the 10-4 risk level.) Rather, the risk range 
provides the necessary flexibility to address the technical and cost 
limitations, and the performance and risk uncertainties inherent in all 
waste remediation efforts.

Land Use Considerations in Remedy Selection
    As a result of the comparative analysis of alternatives with 
respect to EPA's nine evaluation criteria, EPA selects a site-specific 
remedy. The remedy determines the cleanup levels, the volume of 
contaminated material to be treated, and the volume of contaminated 
material to be contained. Consequently, the remedy selection decision 
determines the size of the area that can be returned to productive use 
and the particular types of uses that will be possible following 
remediation.
    The volume and concentration of contaminants left onsite, and thus 
the degree of residual risk at a site, will affect future land use. For 
example, a remedial alternative may include leaving in place 
contaminants in soil at concentrations protective for industrial 
exposures, but not protective for residential exposures. In this case, 
institutional controls should be used to ensure that industrial use of 
the land is maintained and to prevent risks from residential exposures. 
Conversely, a remedial alternative may result in no waste left in place 
and allow for unrestricted use (e.g., residential use).

Results of Remedy Selection Process
    Several potential land use situations could result from EPA's 
remedy selection decision. They are:

      The remedy achieves cleanup levels that allow the entire 
site to be available for the reasonably anticipated future land use in 
the baseline risk assessment (or, where future land use is uncertain, 
all uses that could reasonably be anticipated).
      The remedy achieves cleanup levels that allow most, but 
not all, of the site to be available for the reasonably anticipated 
future land use. For example, in order to be cost effective and 
practicable, the remedy may require creation of a long-term waste 
management area for containment of treatment residuals or low-level 
waste on a small portion of the site. The cleanup levels in this 
portion of the site might allow for a more restricted land use.
      The remedy achieves cleanup levels that require a more 
restricted land use than the reasonably anticipated future land use for 
the entire site. This situation occurs when no remedial alternative 
that is cost-effective or practicable will achieve the cleanup levels 
consistent with the reasonably anticipated future land use. The site 
may still be used for productive purposes, but the use would be more 
restricted than the reasonably anticipated future land use. 
Furthermore, the more restricted use could be a long-term waste 
management area over all or a portion of the site.

Institutional Controls
    If any remedial alternative developed during the FS will require a 
restricted land use in order to be protective, it is essential that the 
alternative include components that will ensure that it remain 
protective. In particular, institutional controls will generally have 
to be included in the alternative to prevent an unanticipated change in 
land use that could result in unacceptable exposures to residual 
contamination, or, at a minimum, alert future users to the residual 
risks and monitor for any changes in use. In such cases, institutional 
controls will play a key role in ensuring long-term protectiveness and 
should be evaluated and implemented with the same degree of care as is 
given to other elements of the remedy. In developing remedial 
alternatives that include institutional control to be used, the 
existence of the authority to implement the institutional control, and 
the appropriate entity's resolve and ability to implement the 
institutional control. An alternative may anticipate two or more 
options for establishing institutional controls, but should fully 
evaluate all such options. A variety of institutional controls may be 
used such as deed restrictions and deed notices, and adoption of land 
use controls by a local government. These controls either prohibit 
certain kinds of site uses or, at a minimum, notify potential owners or 
land users of the presence of hazardous substances remaining onsite at 
levels that are not protective for all uses. Where exposure must be 
limited to assure protectiveness, a deed notice alone generally will 
not provide a sufficiently protective remedy. While the ROD need not 
always specify the precise type of control to be imposed, sufficient 
analysis should be shown in the FS and ROD to support a conclusion that 
effective implementation of institutional controls can reasonably be 
expected.
    Suppose, for example, that a selected remedy will be protective for 
industrial land use and low levels of hazardous substances will remain 
onsite. An industry may still be able to operate its business with the 
selected remedy in place. Institutional controls, however, generally 
will need to be established to ensure the land is not used for other, 
less restricted purposes, such as residential use, or to alert 
potential buyers of any remaining contamination.

Future Changes in Land Use
    Where waste is left onsite at levels that would require limited use 
and restricted exposure, EPA will conduct reviews at least every 5 
years to monitor the site for any changes. Such reviews should analyze 
the implementation and effectiveness of institutional controls with the 
same degree of care as other parts of the remedy. Should land use 
change, it will be necessary to evaluate the implications of that 
change for the selected remedy, and whether the remedy remains 
protective. EPA's role in any subsequent additional cleanup will be 
determined on a site-specific basis. If landowners or others decide at 
a future date to change the land use in such a way that makes further 
cleanup necessary to ensure protectiveness, CERCLA does not prevent 
them from conducting such a cleanup as long as protectiveness of the 
remedy is not compromised. (EPA may invoke CERCLA section 122(e)(6), if 
necessary, to prevent actions that are inconsistent with the original 
remedy.) In general, EPA would not expect to become involved actively 
in the conduct or oversight of such cleanups. EPA, however, retains its 
authority to take further response action where necessary to ensure 
protectiveness.

Further Information
    If you have any questions concerning this directive, please call 
Sherri Clark at 703-603-9043.
    Notice.--The policies set out in this memorandum are intended 
solely as guidance. They are not intended, nor can they be relied upon, 
to create any rights enforceable by any party in litigation with the 
United States. EPA officials may decide to follow the guidance provided 
in this memorandum, or to act at variance with the guidance, based on 
an analysis of specific site circumstances. Remedy selection decisions 
are made and justified on a case-specific basis. The Agency also 
reserves the right to change this guidance at any time without public 
notice.

    Question 3b. Your March 21 testimony states that environmental 
protection and economic progress are inextricably linked. Can EPA 
participate in economic development at Superfund sites under current 
authority?
    Response. CERCLA section 104(b) provides broad authority for the 
Agency to conduct studies, ``undertake investigations [and] other 
information gathering,'' as well as ``undertake planning'' and ``other 
studies or investigations as he may deem necessary or appropriate to 
plan and direct response actions. . . .'' In addition, CERCLA section 
104(d) provides authority for the Agency to enter into contracts or 
cooperative agreements with states and their political subdivisions, as 
well as Indian tribes, ``to carry out actions authorized in this 
section [104].'' We believe the current statutory authority to study 
and investigate a site, combined with authority to enter into 
cooperative agreements with state, local and tribal governments, 
provides the basic underlying legal authority to achieve a better 
understanding of local community plans and preferences for future land 
use at Superfund sites.
    One of the key factors in EPA's remedy selection decision process 
is future land use considerations (See attached ``Land Use in the 
CERCLA Remedy Selection Process,'' OSWER Directive No. 9355.7-04, which 
elaborates other Agency statements made in the National Contingency 
Plan, risk assessment guidance and RI/FS guidance). The potential for 
redevelopment and reuse of a contaminated site after it has been 
cleaned up under the Superfund program is relevant to future land use 
considerations. As such, land reuse assessments and planning, 
intergovernmental cooperation, public outreach (including support for 
citizen advisory groups and third-party neutral facilitation services), 
and other technical assistance can be key components in projecting 
future uses of a Superfund site (especially where there are many 
diverse stakeholders). Land use determinations and the development of 
property are principally the domain of local government, citizens and 
the private sector. The earlier EPA seeks the involvement of local 
government and other stakeholders and takes into consideration 
potential future uses of the land, and the more accurately we can 
anticipate what the future use may be, the better our risk assessment 
and remedy selections will be at sites.
    EPA has identified 170 sites where protective remedies have led to 
productive uses. These include all types of uses: commercial/
industrial, recreational, ecological, residential, and governmental. 
Reuses at these sites have supported or will support over 14,000 jobs, 
resulting in millions of dollars in income and taxes. Over 13,000 acres 
have been or will be converted to open space for recreational and 
ecological uses. Through the recently announced Superfund Redevelopment 
Initiative, we hope to extend these successes to many more sites.

    Question 4a. As part of the omnibus appropriations bill signed into 
law last year, an effort was made by the National Association of Home 
Builders (NAHB) and EPA to include a Superfund liability exemption for 
developers of contaminated properties and certified State brownfields 
programs. This bill was never introduced, drafted hastily, full of 
errors, and circumvented the usual congressional process. Explain the 
benefit to society of a piece of legislation that serves a narrow group 
and was negotiated outside of the committee framework.
    Response. The legislative proposal incorporates brownfields 
provisions with widespread Congressional support, including Federal 
grants and loans to encourage the assessment and cleanup of 
brownfields, and liability protection for innocent landowners, 
contiguous property owners, and prospective purchasers. Under the 
proposal, this liability protection is available only to parties that-
did not cause or contribute to contamination at the site and clean ups 
in accordance with State requirements. EPA does not limit any of its 
enforcement authorities for parties that previously owned or operated a 
site or generated or transported waste to a site. Further, EPA would 
retain its enforcement authority when a site poses an imminent and 
substantial endangerment.

    Question 4b. Do you still support the language you negotiated with 
NAHB?
    Response.EPA continues to support the provisions of the proposal.

    Question 4c. Environmentalists have criticized the Administration 
for brokering deals without extensive public comment and discussion. In 
the instance of the NAHB/EPA brownfields deal, minority and low-income 
areas would have been particularly affected. Does the Administration 
support making deals at the cost of cutting out public participation?
    Response. As you know, EPA frequently is approached by Members of 
Congress, their staff, or stakeholder groups to provide technical 
assistance or enter into discussions about legislative matters. Last 
year, the President of the NAHB asked to meet with the EPA 
Administrator to discuss several issues of concern to the Association's 
members, including the cleanup and development of brownfields. The 
Administrator met with the President of the NAHB in September 1999. 
NAHB had developed a brownfields legislative proposal, and the 
Administrator agreed to have Agency staff review the proposal and 
provide technical assistance. EPA long has supported efforts that would 
encourage the cleanup and development of brownfield properties.
    During October and November 1999, EPA staff met on a number of 
occasions to provide technical assistance to NAHB. Over that period, 
discussion drafts were shared with a representative of the 
Environmental Defense Fund and a representative of U. S. PIRG to help 
determine whether the preliminary discussions associated with EPA's 
technical assistance could produce a proposal that would develop 
stakeholder support. Prior to the discussions, a number of 
Congressional staff were made aware that the Agency had offered to 
provide technical assistance to NAHB. The technical assistance provided 
to NAHB ultimately produced a draft proposal that EPA and the 
Administration could support. The draft proposal was shared with House 
and Senate majority and minority staff in November.

    Question 5. The budget request for the Office of Solid Waste and 
Emergency Response is $1.423 billion, of which $995.5 million is 
apportioned for Superfund. The total request for Superfund is $1.45 
billion. That makes the Superfund budget request $270,000 more than the 
total budget request for OSWER. Every dollar committed to Superfund is 
a dollar that cannot be committed to some other environmental priority. 
Should some of the money Apportioned for Superfund be directed to RCRA 
corrective action where money would go directly to cleanup costs 
instead of administration and litigation costs?
    Response. The Agency's fiscal year 2001 budget request includes a 
redirection of $10.0 million from Superfund to RCRA corrective action. 
This redirection supports implementation of the RCRA corrective action 
reforms.

    Question 6. Every year EPA requests less money for the National 
Institute of Environmental Health Sciences (NIEHS) than Congress 
provides in previous years. NIEHS's Superfund Basic Research Program 
provides multi-disciplinary grants for scientists from the biomedical 
sciences, engineering, ecology, and the geosciences to explore the 
scope of Superfund problems and seek solutions. The program is well 
aligned with the goals espoused in the EPA Budget of forming 
partnerships and working with academia. Why does EPA continue to under 
request for that portion of the budget?
    Response. The National Institute of Environmental Health Sciences 
conducts valuable basic research on the effects of hazardous waste on 
human health. NIEHS's fiscal year 2001 budget request of $62.2 million 
is higher than EPA's President's request of $48.5 million. The 
President's request of $48.5 million for fiscal year 2001 is consistent 
with past requests and supports basic research, worker safety training, 
and minority worker programs. It reflects a focused research program to 
meet the cleanup needs of the Superfund program.
Resources

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                          FY1999                            FY2000                            FY2001
                                                                       President's     FY199 Enacted     President's     FY2000 Enacted    President's
--------------------------------------------------------------------------------------------------------------------------------------------------------
Total NIEHS........................................................      $48,500,000      $60,000,000      $48,500,000      $60,000,000      $48,500,000
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Question 7. The Superfund removal program is an area that has been 
very successful--it achieves a great amount of risk reduction for a 
minimal amount of dollars and involves less bureaucracy than the 
remedial program. We have an important ongoing removal in New Hampshire 
at the Surrette America Battery Site in Northfield. EPA has committed 
an additional $750, 000 to the site; however it has been estimated that 
an additional $900,000 will be needed to complete the cleanup. EPA 
Region I is looking at ways to identify that fading This site is 
located in close proximity to an elementary school, a playground, 
athletic fields and the Winnipesaukee River and contamination lead and 
asbestos has been found at the site. Will make a commitment to continue 
work at this site and to make available sufficient resources to finish 
the cleanup?
    Response. EPA Region I estimates the total cost of the necessary 
removal action at the Surrette America Battery Site to be approximately 
$2,600,000. EPA Region I has committed additional resources to fund the 
restart for the removal action this spring, and the EPA Headquarters 
office recently approved a Region I request to reprogram resources to 
fund the remainder of the work at the site. These reprogrammed funds 
will be available to the Region later this fiscal year.

    Question 8a. EPA management of Superfund cleanups is an integral 
part of making the Superfund program work. The Agency has undertaken 
administrative reforms in the past years to address outstanding issues 
in the Superfund reform debate. One issue that is important to 
recognize is that differences exist between the Regions of EPA in 
negotiating and cleaning up Superfund sites. In September 1988, the 
Inspector General for Audits of the Southern Division completed an 
audit of Region IV's management of significant Superfund removal 
actions and sent the Report to the Regional Administrator. Another 
Inspector General Report was sent to the Regional Administrator in 
1990. These Reports, taken together, conclude that Region IV has not 
managed removals efficiently or effectively and has inadequately 
implemented the management of removal cleanups. This inefficient or 
inadequate implementation has resulted in prolonged cleanup actions, 
limited State and community participation in cleanup decisions, and 
unnecessary costs. Axel Johnson, Jr. has been involved with EPA Region 
IV regarding two sites in North Carolina, the Old AT Refinery in 
Wilmington and the Potter's Septic Tank Service Pits site in Sandy 
Creek and has informed the committee that the management problems 
originally reported continue. Has the Agency investigated the 
allegations in the 1988 and 1990 Inspector General Reports within 
Region IV?
    Response. EPA Region IV responded to the Inspector General's 1988 
investigation and subsequent 1990 report on large removal actions 
undertaken at eight NPL sites. EPA Region IV agreed with some of the 
IG's findings and recommendations, such as the need to develop guidance 
and procedures for large removal actions that ensure cooperation and 
coordination between remedial and removal program staffs. However, EPA 
disagreed with other findings, such as the finding of questionable 
response actions at sites. EPA stated that the IG failed to recognize 
positive aspects of these removal actions, namely their achievement of 
expediting cleanup through source removals at several NPL sites.
    EPA believes it has improved both community and State involvement 
procedures for its removal program. The removal program provides cost-
effective and timely responses to imminent threats posed by hazardous 
waste sites. As Chairman Smith notes in question #7 above, the 
Superfund removal program is very successful: ``The Superfund removal 
program is an area that has been very successful--it achieves a great 
amount of risk reduction for a minimal amount of dollars and involves 
less bureaucracy than the remedial program.''

    Question 8b. If not, does the Agency intend to investigate these 
allegations?
    Response. Please see the response to question 8(a) above.

    Question 8c. Over the past years, EPA has initiated numerous 
administrative reforms in administering the Superfund Program. Some of 
these reforms have been targeted at ``getting the little guy out,'' as 
it was stated in the Agency's Superfund Reforms, Annual Report fiscal 
year 1998. EPA touts this reform as a Superfund Program Accomplishment 
and has estimated that thousands of small waste contributors from the 
Superfund liability scheme have been removed. However, this reform does 
not seem to be utilized uniformly throughout the Regions. De minimis 
contributors are generally defined as those parties who have 
contributed 1 percent or less of the wastes at a site. Despite this 
policy, EPA Region IV settled with the owner and operator of the 
Potters Septic Tank Service Pits site in Sandy Creek, N. C. on 
favorable terms. The Agency gave notice to Axel Johnson that it was 
liable for 100 percent of the cleanup costs at the site. However, after 
depositions were taken, it is clear that Axel had sent only one 
shipment of waste to the Potter Site and that it had played a ``minor 
role'' at the Potters Site. Axel believes that the shipment involved 
was not sent to the site, and EPA bases its contention on information 
from a former employee of the company, not on written documentation. 
The amount of Axel Johnson oil that would have been addressed during 
the Superfund removal and remedial actions at the Potter Site would 
have been between 0.1 percent and 4. 4 percent of the total waste oil 
removed remediated. Nevertheless, the Department of Justice has 
demanded that Axel pay the majority of the more than $13 million in 
cleanup costs that EPA has incurred at the site. Can you explain how a 
party that might have contributed 0.1 percent-4. 4 percent of the total 
waste at a site could be required to pay for the majority of the 
cleanup costs incurred at the site?
    Response. According to section 122(g)(1) of CERCLA, which governs 
de minimis settlements, the volume of the waste sent to a site is not 
the sole factor to be used in determining whether a party qualifies for 
a de minimis settlement. In addition to the small volume requirement, 
the waste must also have a low toxicity. In many cases, parties are 
ineligible for de minimis settlements, even though they sent minute 
amounts of waste, because of the toxic nature of that waste. These 
parties would be held jointly and severally liable for the cost of 
cleanup. Furthermore, at certain sites, even 1 percent of the volume 
represents a very large volume in absolute terms. For example, at the 
Tonolli Site in Pennsylvania, 1 percent of the volume would represent 
over one million gallons of waste. Small percentages do not necessarily 
equate with small volumes.
    At the Potter's Septic Tank Service Pits Superfund Site in 
Brunswick County, North Carolina, from the late 1960's through the mid-
1970's, several unlined pits were found on the Site property which were 
used for the disposal of petroleum-related wastes, creosoting wastes 
and septic tank wastes. Contamination at this site consists of soil 
contaminated with heavy metals, chloroform, and phenolic compounds, all 
of which are hazardous substances. Groundwater at the site is 
contaminated with volatile organic compounds, including benzene, 
xylene, phenols, and other hazardous substances. Excavation and 
treatment of contaminated soils at the site were substantially 
completed in 1996. The groundwater cleanup remedy for the site, 
extraction and treatment of the contaminated water, has not yet been 
initiated. Due to preliminary indications that the level of 
contamination in the groundwater may be decreasing, additional studies 
and sampling may be necessary. EPA will reevaluate the groundwater 
remedy in light of any new information revealed through these 
additional studies.
    EPA has referred this matter to the Department of Justice to seek 
recovery of costs from parties found to be responsible for sending 
hazardous substances to the site. EPA's investigations have identified 
Axel Johnson, Inc., as a potentially responsible party. Although the 
matter has been referred to the Department of Justice, the United 
States and Axel Johnson, Inc., are currently discussing means of 
resolving these matters without resorting to formal litigation.

    Question 9a. Last March EPA submitted a Report to Congress on 
Wastes from the Combustion of Fossil Fuels. In the report, EPA 
tentatively concluded that, ``co-managed wastes generated at coal-fired 
utilities. . . generally do not present a risk to human health and the 
environment,'' and that Subtitle C of RCRA is ``inappropriate to 
address any problems associated with the disposal of these wastes.'' 
EPA is currently revisiting this issue and may be considering a 
regulatory determination that would regulate these wastes under 
Subtitle C of RCRA notwithstanding the Agency's findings in March 1999. 
If this is true, it will have a significant effect on New Hampshire. 
What is the status of EPA's regulatory determination?
    Response. EPA issued a regulatory determination applicable to co-
managed coal combustion wastes on April 25, 2000. In that regulatory 
determination, we announced our decision that we would retain the 
hazardous waste exclusion for all fossil fuel combustion wastes, 
including co-managed coal combustion wastes. We also announced that we 
would develop regulations under Subtitle D (nonhazardous) authority for 
management of coal combustion wastes in landfills and surface 
impoundments and when used to fill surface or underground mines.

    Question 9b. EPA staff has been working on the issue now for 
several months. What information have they been reviewing and what is 
the nature of their recommendations on this issue?
    Response. EPA reviewed all available information, including new 
information submitted on the March 1999 Report to Congress. Industry 
commenters urged EPA to retain the hazardous waste exclusion. States 
primarily commented that coal combustion waste is very effective in 
reclaiming abandoned and existing mines. Public interest groups stated 
that EPA should regulate coal combustion wastes as hazardous wastes and 
described instances where these wastes were being deposited directly 
into ground water at mine sites.
    Staff presented a variety of options, ranging from retention of the 
exemption from Subtitle C regulation with an active outreach program to 
ensure that problems associated with management of coal combustion 
wastes are corrected, retention of the exemption and development of 
regulations under Subtitle D of RCRA, to elimination of the exemption 
and regulation under Subtitle C authority (using an approach similar to 
that used in the recently proposed regulations applicable to cement 
kiln dust). In all instances, EPA envisioned an active governmental 
role in ensuring improved management of fossil fuel combustion wastes. 
Ultimately, we decided to announce that we would retain the exemption 
from Subtitle C regulation and develop regulations under Subtitle D 
authority.

    Question 9c. Is there any information that the Agency now has that 
it did not have in March 1999 to justify changing its direction with 
respect to the management of combustion wastes?
    Response. Commenters submitted additional information related to 59 
possible damage cases involving coal combustion wastes, mostly at 
utility landfills and surface impoundments. Additionally, we received a 
substantial amount of new information on the use of coal combustion 
wastes to fill surface and underground mines. Ultimately, we decided to 
retain the exemption from regulation of coal combustion wastes under 
Subtitle C authority.

    Question 9d. If so, what is the information?
    Response. Please see the answer to Question 9c above.

    Question 10a. Many utilities and others recycle large quantities of 
the combustion ash they generate. Public Services of New Hampshire, for 
example, recycles over 75 percent of the waste it generates--over 75, 
000 tons of ash--into grit and cement-based products. It still spends 
over $1 million to manage its waste. There is a concern that if 
combustion wastes are regulated under Subtitle C, recycling 
opportunities will be lost or substantially limited and that disposal 
costs could increase dramatically. Has the Agency looked at the 
potential economic impact on the public utilities, universities, and 
other users of industrial boilers of a hazardous waste determination?
    Response. EPA was especially concerned about any possible spillover 
effects of regulation of disposal and minefilling under Subtitle C 
authority on beneficial uses and was committed to eliminating or 
substantially reducing such spillover effects. This was a factor that 
we took into account in making our regulatory determination. We also 
estimated the costs associated with regulation of disposal of fossil 
fuel combustion wastes and found that they would be considerable, but a 
relatively small percentage of industry revenues. As stated above, on 
April 25, 2000, EPA announced its decision to retain the exemption from 
regulation under Subtitle C.

    Question 10b. How will it effect the cost of disposal?
    Response. As explained above, EPA decided to retain the exemption 
for co-managed coal combustion wastes from regulation as hazardous 
waste. Thus, disposal costs will not be affected by Subtitle C 
regulation.

    Question 10c. The committee has been informed of one estimate, that 
suggests that it could increase disposal or management cost by a factor 
of five. Would you agree with that estimate?
    Response. In that EPA has decided to retain the exemption from 
regulation for co-managed coal combustion wastes as a hazardous waste, 
such estimated increases in the cost of management or disposal will not 
occur.

    Question 11. EPA has set the goal of addressing 172 high-priority 
RC.RA corrective actionsites in fiscal year 2001. In fiscal year 2000, 
EPA was to address 170 high-priority RCRA corrective actionsites. 
However, the Agency has requested an increase of $3.4 million from last 
year, yet it only intends to address two additional high-priority sites 
than last year. Where will the $3.4 million be targeted in the RC.RA 
Corrective Program?
    Response. It will take between one and 2 years for the additional 
$3.4 million requested in fiscal year 2000 to yield significant 
increases in the number of facilities achieving environmental 
indicators. Lead time is necessary to hire and train an additional FTE 
per region that the new money allows, and then to have an impact on 
efforts by facilities to reach program goals. Annual program 
accomplishment are expected to increase beginning in 2003, when the 
RCRA target for control of human exposure jumps from 172 to 257 sites 
for each of the 3 years until 2005. Without the requested funding 
increase, it is unlikely that this higher annual number can be 
sustained. The annual target for control of groundwater contamination, 
which remains constant at 172 for the years 2001-2005, reflects the 
relative difficulty facilities will have in meeting this goal. The 
requested funding increase is necessary for the program to sustain 
current progress in meeting the groundwater contamination annual goal.

    Question 12a. Congress has been working on removing MTBE from 
gasoline and will continue to do so, however, it is time to look at the 
problem of MTBE in groundwater. The first estimates of potential 
drinking water contamination on a national scale were released last 
week in the Environmental Science and Technology Journal. The study 
estimated that about one-third of drinking water wells in 31 States 
have the potential to be contaminated with MTBE (this figure does not 
even include California or Texas) and does not include private wells. 
This is an alarming figure. The committee is already working to address 
the MTBE in gasoline issue, but should start looking ahead to 
groundwater contamination. Has EPA done any independent work to 
determine the scope of the MTBE groundwater contamination problem, and 
the scale of possible remedial costs?
    Response. To clarify, the article states that approximately 9,000 
community water supply (CWS) wells in 31 States have a leaking 
underground storage tank (UST) within 1 km. It points out that not all 
leaking UST sites will be a significant source of MTBE to groundwater 
and to CWS wells. In addition, the study referenced in the 
Environmental Science and Technology Journal is based on 31 States 
which contributed data to the U. S. Geological Service. EPA does not 
currently have data for the remaining 19 States.
    EPA is working to develop cost estimates for remediating releases 
of MTBE from underground storage tanks. To date, from the limited 
amount of data available, there is apparently very little experience 
nationwide in addressing MTBE contamination. A little over half of 
States are monitoring for MTBE at leaking UST sites. (Earlier this 
year, EPA strongly recommended States immediately begin monitoring and 
reporting of MTBE and other oxygenates in groundwater at all UST 
release sites nationwide. In those cases where States detect MTBE or 
other oxygenates, EPA strongly advised that States take immediate and 
aggressive remedial action to address the contamination.) In almost all 
of the cleanups at leaking UST sites, the available information on 
remediation costs reflects those costs to address contamination from 
benzene as well as other contaminants, such as MTBE. Cost data are 
available for a relatively few sites at which only MTBE contamination 
has been cleaned up.
    Given the uncertainties, it would be premature to offer an estimate 
on possible remediation costs. Numerous factors influence the cost of 
cleaning up MTBE releases, including:

      the number of sites contaminated with MTBE,
      the concentration of those releases,
      the effectiveness of cleanup technologies,
      the level to which States will cleanup MTBE, and
      whether States will re-open previously closed leaking UST 
sites.

    None of this information is currently available on a national 
level, but EPA is working with our State and regional partners to 
gather this type of information. Earlier this year, EPA recommended 
that all States monitor for and report MTBE and other ethers in 
groundwater at all leaking UST sites. At those sites where MTBE is 
detected, as stated above, EPA strongly advised States to take 
immediate and aggressive remedial action to address the contamination. 
The New England Interstate Water Pollution Control Commission is 
obtaining information from the States about their experiences with MTBE 
releases. The American Society for Testing and Materials, EPA, and the 
States recently formed a workgroup to develop a protocol to help States 
decide if and when it is appropriate to re-open previously closed 
leaking UST sites.
    Anecdotal information indicates that the cost to remediate MTBE 
contamination is significant. The reasons for the increased cost of 
MTBE remediation include:

      MTBE does not naturally attenuate as rapidly as BTEX,
      site characterization is more difficult and expensive, 
and the
      MTBE plume separates from the rest of the petroleum plume 
and travels more quickly through the subsurface, making it more likely 
to reach a receptor (e.g., groundwater).

    Question 12b. Can you comment on some of the outside reports on the 
potential scope and costs of the problem?
    Response. EPA is familiar with the Environmental Science and 
Technology Journal article on MTBE referenced in question 12a above. As 
EPA understands the article, it does not speculate on costs of the MTBE 
problem, but does conclude that: ``Although the large number of MTBE 
LUSTs in the immediate vicinities of community supply wells may 
represent a significant threat to drinking water over at least the next 
decade, the data to determine the magnitude of that threat are simply 
not available at the present time''. EPA agrees with the article's 
conclusion about the potential threat to drinking water from LUSTs; 
however, the Agency is working to identify and collect the necessary 
information so that EPA and the U.S. Geological Service (USGS) will be 
better able to characterize the threat of MTBE contamination to 
drinking water. EPA will work with USGS to supplement the analysis 
described in the journal article and develop projections for the 
future. As for other outside reports, EPA is not familiar with the 
other outside reports to which you are referring.

    Question 12c. How does the EPA plan to address MTBE in groundwater, 
specifically what statutory authorities does it plan to use?
    Response. The Toxic Substances Control Act (TSCA), section 6, 15 
U.S.C. 2605, provides EPA with broad authority to issue rules to 
regulate the manufacture, processing, distribution in commerce, use 
and/or disposal of chemical substances in the United States where such 
regulation is necessary to prevent unreasonable risks to health or the 
environment. EPA has recently published in the Federal Register an 
Advance Notice of Proposed Rulemaking, under TSCA, to initiate a 
process to address the threat to the nation's drinking water resources 
from contamination by MTBE. One of the options available to EPA 
pursuant to the unreasonable risk provision under TSCA section 6 is to 
eliminate or greatly reduce the use of MTBE as a gasoline additive. EPA 
is interested in comments on a comprehensive approach to reducing MTBE 
risk. The Agency will also consider whether action under another 
statute administered by EPA, such as the Clean Air Act, the Resource 
Conservation and Recovery Act, the Clean Water Act, or the Safe 
Drinking Water Act, could effectively address the risks posed by MTBE 
and, if so, whether it is in the public interest to regulate the risk 
under TSCA instead of such other statute.

    Question 12d. Does EPA see this as primarily a Superfund issue, or 
an Underground Storage Tank remediation issue?
    Response. Releases from underground storage tanks are a significant 
source of MTBE contamination, and State and EPA UST programs are 
working diligently and using the full range of authorities appropriate 
and available to address the issue of MTBE contamination. As you know, 
Congress created the Leaking Underground Storage Tank (LUST) Trust Fund 
in 1986 to oversee cleanups by responsible parties and pay for cleanups 
at sites where the owner or operator is unknown, unwilling or unable to 
respond, or which require emergency action. EPA has been using and will 
continue to use LUST Trust Fund resources--as well as other appropriate 
mechanisms--to address MTBE contamination.

    Question 12e. Does the Budget that you have presented to us take 
into account any additional cleanup activity that will be needed due to 
MTBE contamination?
    Response. The Administration is very concerned about MTBE 
contamination. The full nature and extent of MTBE contamination 
nationwide is currently unknown. EPA is supporting efforts to obtain 
additional information and to prevent and remediate MTBE contamination 
expeditiously. The President's budget request for fiscal year 2001 
reflects the need to balance environmental priorities and to stay 
within budget targets. It should be noted that the bulk of the funding 
for cleanup of leaking USTs is borne by responsible parties and State 
underground storage tank cleanup funds, which raise over $1 billion 
annually. EPA's Leaking Underground Storage Tank (LUST) funding is 
primarily used by States to oversee and expedite these cleanups.

    Question 12f. Will there be additional resources required in the 
future?
    Response. The President may need to request additional LUST funding 
as more information becomes available about the nature and extent of 
MTBE contamination in the future. Additionally, Federal and State 
regulations may need to be strengthened, and enforcement activities 
will require necessary encouragement and support.

                                   
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