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98–219 2016

OVERSIGHT OF FEDERAL FACILITY CLEANUP 

UNDER CERCLA 

HEARING 

BEFORE THE

SUBCOMMITTEE ON ENVIRONMENT AND THE 

ECONOMY 

OF THE

COMMITTEE ON ENERGY AND 

COMMERCE 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED FOURTEENTH CONGRESS 

FIRST SESSION 

SEPTEMBER 11 & 16, 2015 

Serial No. 114–73 

( 

Printed for the use of the Committee on Energy and Commerce 

energycommerce.house.gov 

(II) 

COMMITTEE ON ENERGY AND COMMERCE 

FRED UPTON, Michigan 

Chairman 

JOE BARTON, Texas 

Chairman Emeritus 

ED WHITFIELD, Kentucky 

JOHN SHIMKUS, Illinois 

JOSEPH R. PITTS, Pennsylvania 

GREG WALDEN, Oregon 

TIM MURPHY, Pennsylvania 

MICHAEL C. BURGESS, Texas 

MARSHA BLACKBURN, Tennessee 

Vice Chairman 

STEVE SCALISE, Louisiana 

ROBERT E. LATTA, Ohio 

CATHY MCMORRIS RODGERS, Washington 

GREGG HARPER, Mississippi 

LEONARD LANCE, New Jersey 

BRETT GUTHRIE, Kentucky 

PETE OLSON, Texas 

DAVID B. MCKINLEY, West Virginia 

MIKE POMPEO, Kansas 

ADAM KINZINGER, Illinois 

H. MORGAN GRIFFITH, Virginia 

GUS M. BILIRAKIS, Florida 

BILL JOHNSON, Ohio 

BILLY LONG, Missouri 

RENEE L. ELLMERS, North Carolina 

LARRY BUCSHON, Indiana 

BILL FLORES, Texas 

SUSAN W. BROOKS, Indiana 

MARKWAYNE MULLIN, Oklahoma 

RICHARD HUDSON, North Carolina 

CHRIS COLLINS, New York 

KEVIN CRAMER, North Dakota 

FRANK PALLONE, JR., New Jersey 

Ranking Member 

BOBBY L. RUSH, Illinois 

ANNA G. ESHOO, California 

ELIOT L. ENGEL, New York 

GENE GREEN, Texas 

DIANA DEGETTE, Colorado 

LOIS CAPPS, California 

MICHAEL F. DOYLE, Pennsylvania 

JANICE D. SCHAKOWSKY, Illinois 

G.K. BUTTERFIELD, North Carolina 

DORIS O. MATSUI, California 

KATHY CASTOR, Florida 

JOHN P. SARBANES, Maryland 

JERRY MCNERNEY, California 

PETER WELCH, Vermont 

BEN RAY LUJA ́ N, New Mexico 

PAUL TONKO, New York 

JOHN A. YARMUTH, Kentucky 

YVETTE D. CLARKE, New York 

DAVID LOEBSACK, Iowa 

KURT SCHRADER, Oregon 

JOSEPH P. KENNEDY, III, Massachusetts 

TONY CA ́ RDENAS, California 

SUBCOMMITTEE ON ENVIRONMENT AND THE ECONOMY

JOHN SHIMKUS, Illinois 

Chairman 

GREGG HARPER, Vice Chairman 

Vice Chairman 

ED WHITFIELD, Kentucky 

JOSEPH R. PITTS, Pennsylvania 

TIM MURPHY, Pennsylvania 

ROBERT E. LATTA, Ohio 

DAVID B. MCKINLEY, West Virginia 

BILL JOHNSON, Ohio 

LARRY BUCSHON, Indiana 

BILL FLORES, Texas 

RICHARD HUDSON, North Carolina 

KEVIN CRAMER, North Dakota 

FRED UPTON, Michigan (ex officio) 

PAUL TONKO, New York 

Ranking Member 

KURT SCHRADER, Oregon 

GENE GREEN, Texas 

DIANA DEGETTE, Colorado 

LOIS CAPPS, California 

MICHAEL F. DOYLE, Pennsylvania 

JERRY MCNERNEY, California 

TONY CA ́ RDENAS, California 

FRANK PALLONE, JR., New Jersey (ex 

officio) 

(III) 

C O N T E N T S 

SEPTEMBER 11, 2015 

Page 

Hon. John Shimkus, a Representative in Congress from the State of Illinois, 

opening statement ................................................................................................ 1 

Prepared statement .......................................................................................... 3 

Hon. Paul Tonko, a Representative in Congress from the State of New York, 

opening statement ................................................................................................ 4 

Hon. Fred Upton, a Representative in Congress from the State of Michigan, 

prepared statement .............................................................................................. 5 

Hon. Frank Pallone, Jr., a Representative in Congress from the State of 

New Jersey, opening statement .......................................................................... 6 

WITNESSES

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

Prepared statement .......................................................................................... 11 

Answers to submitted questions ...................................................................... 89 

Mark Whitney, Principal Deputy Assistant Secretary for Environmental Management, U.S. Department of Energy ................................................................ 19 

Prepared statement .......................................................................................... 22 

Answers to submitted questions ...................................................................... 104 

John Conger, Performing the Duties of the Assistant Secretary of Defense 

for Energy, Installations, and Environment, U.S. Department of Defense ..... 27 

Prepared statement .......................................................................................... 29 

Answers to submitted questions ...................................................................... 117 

Alfredo Gomez, Director, Natural Resources and Environment, U.S. Government Accountability Office .................................................................................. 36 

Prepared statement .......................................................................................... 38 

Answers to submitted questions ...................................................................... 145 

(IV) 

SEPTEMBER 16, 2015 

WITNESSES

Elizabeth Dieck, Director of Environmental Affairs, South Carolina Department of Health and Environmental Control, on behalf of the Environmental 

Council of the States ............................................................................................ 150 

Prepared statement .......................................................................................... 153 

Answers to submitted questions ...................................................................... 204 

Bonnie Buthker, Chief Southwest District Office, Ohio EPA, on behalf of 

the Association of State and Territorial Solid Waste Management Officials .. 166 

Prepared statement .......................................................................................... 168 

Answers to submitted questions ...................................................................... 211 

Michael Houlemard, Jr., Executive Officer, Fort Ord Reuse Authority .............. 174 

Prepared statement .......................................................................................... 177 

SUBMITTED MATERIAL

Statement of the Department of the Interior ........................................................ 196 

(1) 

OVERSIGHT OF FEDERAL FACILITY CLEANUP 

UNDER CERCLA, DAY 1 

FRIDAY, SEPTEMBER 11, 2015 

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON ENVIRONMENT AND THE ECONOMY, COMMITTEE ON ENERGY AND COMMERCE

Washington, DC. 

The subcommittee met, pursuant to call, at 9:02 a.m., in room 

2123, Rayburn House Office Building, Hon. John Shimkus, (chairman of the subcommittee) presiding. 

Present: Representatives Shimkus, Harper, Murphy, Latta, Johnson, Bucshon, Hudson, Upton (ex officio), Tonko, Schrader, Green, 

DeGette, and Pallone (ex officio). 

Also Present: Representative Luj AE1an. 

Staff Present: Will Batson, Legislative Clerk; David McCarthy, 

Chief Counsel, Environment/Economy; Tina Richards, Counsel, Environment; Chris Sarley, Policy Coordinator, Environment and 

Economy; Dan Schneider, Press Secretary; Peter Spencer, Professional Staff Member, Oversight; Christine Brennan, Minority Press 

Secretary; Jacqueline Cohen, Minority Senior Counsel; Tiffany 

Guarascio, Minority Deputy Staff Director and Chief Health Advisor; Rick Kessler, Minority Senior Advisor and Staff Director, Energy and Environment; and Alexander Ratner, Minority Policy Analyst. 

OPENING STATEMENT OF HON. JOHN SHIMKUS, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF ILLINOIS 

Mr. SHIMKUS. We are going to call the hearing to order. 

I want to thank everyone for the early start time, both from the 

agencies and my colleagues. As we know, Friday fly-out days are 

challenging for Members, so it is good to get started. 

Just, also, a point of notice is that there are really two panels. 

This is the first panel of our hearing, and then we will have other 

stakeholders later on. 

So, with that, I will recognize myself for an opening statement, 

5 minutes. 

I welcome today’s witnesses, and thank you all for appearing to 

discuss protection from and cleanup of hazardous waste at Federal 

Government facilities. Today we will hear perspectives of the Department of Defense, the Department of Energy, the Environmental Protection Agency, and the Government Accountability Office. 

Thousands of ordinary citizens in private-sector companies face 

the daily challenge of controlling costs and making a profit without 

2 

leaving behind a trail of hazardous waste. The same citizens and 

companies must meet both Federal and State prevention and cleanup standards. 

In meeting all these challenges, they face distinct disadvantages 

when compared with their Federal agency counterparts. One, they 

can’t rely on the U.S. taxpayer to cover either their compliance or 

their cleanup costs. They also can’t always choose their own remediation options. And they can’t fall back on the defense of sovereign 

immunity when they are taken to court. 

While those private-sector companies focus on making a profit 

while complying with the Environmental Protection Agency standards, the Defense and Energy Departments focus on national security. And national security can be a messy business, involving everything from motor oil to munitions waste. And even national security is no excuse for leaving a mess in your neighbor’s backyard. 

As we drill down into specifics on an agency-by-agency basis, we 

will learn that some of our Federal partners are more successful 

than others in juggling these dual responsibilities to their core mission and to protecting land and water. The agencies’ challenges are 

not uniform, and neither are their budgets. 

We have four objectives today. The first one is to get a detailed 

update on where agencies stand on meeting their good-neighbor obligations. The second one is to find out what the challenges are and 

how those challenges vary from agency to agency. The third one is 

to understand what the resource management relationship is between each of these agencies and the EPA. And, finally, to get 

GAO’s perspective on who is doing a good job, who is not, and what 

they can do to improve. 

Next week, a second panel for this hearing will provide the state 

perspective. Under our system of government, states have primary 

responsibility for protecting their own natural resources, including 

land and water, from environment degradation. But a state’s challenge is made more difficult, if not impossible, to meet if the entity 

responsible for the environmental mess is a Federal agency, with 

all the power that status implies. 

After the episode last month in Colorado with the release of contaminated water into the Animas River, I wouldn’t be surprised if 

some in our audience thought first of EPA when they heard the 

phrase ‘‘Federal agency responsible for an environmental mess,’’ 

but the Colorado mine release is not the focus of this hearing. 

Since we first got the news of the blowout, our committee has 

been looking into the Colorado mine incident on a separate track 

from this hearing. At the beginning, we had lots of questions and 

almost no answers. Gradually, we have been piecing together the 

facts as best we can. We are not finished yet. I trust our friend Mr. 

Stanislaus and everyone in the administration will cooperate with 

our committee as we pursue that inquiry. 

Correct, Mr. Stanislaus? 

And he shakes his head ‘‘yes.’’ 

Thank you. 

Today I hope that we can focus on the Federal facilities issue and 

whether important agencies such as the Department of Defense 

and the Department of Energy are good neighbors and good stewVerDate Nov 24 2008 11:10 Jan 21, 2016 Jkt 037690 PO 00000 Frm 00006 Fmt 6633 Sfmt 6633 F:\MY DOCS\HEARINGS 114\114-73 CHRIS
3 

ards of the land and water that they touch wherever they have a 

presence. 

I will now just end with—my background is also as a military officer, understanding national security and the challenges that face 

us. So the balancing of that and also being a good neighbor toward 

folks is very important to me, but I would also want to say I appreciate the work that the DOE and the Department of Defense does 

in protecting our citizens. 

With that, I yield back my time and yield 5 minutes to the ranking member, Mr. Tonko. 

[The prepared statement of Mr. Shimkus follows:] 

PREPARED STATEMENT OF HON. JOHN SHIMKUS

I welcome today’s witnesses and thank you all for appearing to discuss protection 

from, and clean-up of, hazardous wastes at Federal government facilities. Today 

we’ll hear perspectives of the Department of Defense, the Department of Energy, the 

Environmental Protection Agency, and the Government Accountability Office. 

Thousands of ordinary citizens and private sector companies face the daily challenge of controlling costs and making a profit without leaving behind a trail of hazardous waste. The same citizens and companies must meet both Federal and state 

prevention and clean-up standards. 

In meeting all these challenges they face distinct disadvantages when compared 

with their Federal agency counterparts: 

• they can’t rely on the U.S. taxpayer to cover either their compliance or their 

clean-up costs. 

• they can’t always choose their own remediation options. and 

• they can’t fall back on the defense of sovereign immunity when they are taken 

to court. 

While those private sector companies focus on making a profit while complying 

with environmental protection standards, the Defense and Energy Departments 

focus on national security. And national security can be a messy business involving 

everything from motor oil to munitions waste. But even national security is no excuse for leaving a mess in your neighbor’s back yard. 

As we drill down into the specifics on an agency-by-agency basis, we’ll learn that 

some of our Federal partners are more successful than others at juggling these duel 

responsibilities, to their core mission and to protecting land and water. The agencies’ challenges are not uniform and neither are their budgets. 

We have four objectives today: 

• to get a detailed update on where agencies stand meeting their good- neighbor 

obligations; 

• to find out what the challenges are and how those challenges vary from agency 

to agency; 

• to understand what the resource management relationship is between each of 

these agencies and theEPA; and 

• to get GAO’s perspective on who’s doing a good job, who’s not, and what they 

can do to improve. 

Next week a second panel for this hearing will provide the State perspective. 

Under our system of government States have primary responsibility for protecting 

their own natural resources, including land and water, from environmental degradation. But a State’s challenge is made difficult if not impossible to meet if the entity 

responsible for the environmental mess is a Federal agency with all the power that 

status implies. 

After the episode last month in Colorado with the release of contaminated water 

into the Animas River, I wouldn’t be surprised if some in our audience thought first 

of EPA when they heard the phrase ‘‘Federal agency responsible for an environmental mess.’’ But the Colorado mine release is not the focus of this hearing. 

Since we first got the news of the blow-out, our Committee has been looking into 

the Colorado mine incident on a separate track from this hearing. At the beginning 

we had lots of questions and almost no answers. Gradually, we’ve been piecing together the facts, as best we can. We are not finished yet. I trust our friend, Mr. 

Stanislaus, and everyone in the Administration, will cooperate with our Committee 

as we pursue that inquiry. —Mr. Stanislaus? 

4 

Thank you. Today, I hope that we can focus on the Federal facilities issue and 

whether important agencies such as DOD and DOE are good neighbors and good 

stewards of the land and water that they touch wherever they have a presence. 

OPENING STATEMENT OF HON. PAUL TONKO, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEW YORK 

Mr. TONKO. Thank you, Mr. Chair. 

And good morning, and thank you to our witnesses for participating this morning. 

And I thank the chair for holding a hearing on this very important topic. 

Congress enacted the Comprehensive Environmental Response 

Compensation and Liability Act, commonly known as Superfund, 

some 35 years ago, but communities across the country are still 

dealing with the legacy of toxic waste. After a rough start, the 

Superfund program has had success in containing and cleaning up 

serious contamination problems in many of our communities, but 

there is still much work to do and too few dollars available to do 

it. 

The good news is that sites are being cleaned up. When sites are 

cleaned up, the surrounding community benefits from a cleaner, 

healthier environment, and returning abandoned, contaminated 

land to productive use improves the local economy. 

In addition to the sites on private or State land, there are many 

Superfund sites on Federal land. The Federal Government operates 

facilities across our country on millions of acres of land. Some of 

the Federal site contamination is due to the government’s activities, but there are also many areas where mining, drilling, and industrial activities by private parties took place decades ago, leaving 

a legacy of contamination. 

The Federal Government is subject to the Superfund law, and 

the government spends billions of dollars annually to clean up hazardous contamination at Federal facilities. 

A few years ago, I asked the Government Accountability Office 

to look at the status of cleanup activities on Federal lands and to 

focus on the agencies and departments other than the Departments 

of Defense and Energy. These department sites are generally well 

known and have received considerable oversight and attention. The 

situation for the United States Department of Agriculture, the Department of the Interior, and other Federal agencies was less clear. 

Under the Superfund law, Federal agencies are required to identify, assess, and clean up contamination on the properties that they 

administer, but cleanups cannot begin if sites have not been identified and characterized. As Mr. Gomez and his team found, this first 

crucial step has not been completed in the case of these other departments. And because of the nature of the sites on Department 

of Interior and Department of Agriculture lands and the limited 

budgets for these activities, it does not appear we will have a complete, reliable inventory in the near future. 

We spend a lot of time these days worrying about how much the 

government is spending. I worry about that, as well, but I also 

worry about how we are distributing these dollars that we do 

spend. Across-the-board cuts and arbitrary caps are preventing us 

from doing some of our most important and difficult tasks: setting 

5 

priorities and ensuring that we are providing funds to programs 

that deliver sustained benefits to our citizens. And returning contaminated land to productive use, preventing pollution migration, 

and reducing people’s exposure to dangerous toxins certainly is a 

sustained benefit. 

With the passage of Superfund, we made a commitment to identify and clean up contaminated properties. We should fulfill that 

commitment. I don’t know that new legislation is required to do 

this. I do believe that additional oversight of this program, however, would be very useful. This hearing makes an important contribution to that effort. 

Mr. Gomez, thank you and your team for your work on this 

issue. You have given us a lot to consider and provide some constructive recommendations. 

I do appreciate the opportunity for the subcommittee to examine 

our Superfund program. The citizens living in communities with 

these sites are anxious, and they are anxious to have them cleaned 

up and returned to safe, productive use. The responsible parties, 

whether public or private, want to accomplish those cleanups in a 

cost-effective manner. These are goals that we can all support, so 

I do hope to work with you, Chairman Shimkus, and the other 

members of the subcommittee to achieve these goals. 

And I thank all for participating in the hearing this morning and 

next week, and I look forward to your testimony on what is a very 

important issue. 

With that, I yield back. 

Mr. SHIMKUS. The gentleman yields back his time. 

I would like to submit, with unanimous consent, a statement for 

the record from Chairman Upton for his opening statement. 

[The prepared statement of Mr. Upton follows:] 

PREPARED STATEMENT OF HON. FRED UPTON

Today’s hearing examines the important role federal agencies play in protecting 

our land and water resources through cleanups at federally owned and operated facilities. 

Federal officials in all branches, but particularly at EPA, want to exert leadership 

in environmental protection. As most successful coaches know, inspiring leadership 

comes first by setting a good example. Federal agencies must set a good example 

in how they assess contamination and conduct cleanups if they expect the American 

people to take their efforts to prevent and clean up hazardous materials seriously. 

We know that federal agencies do many things well but there is room for improvement. Not all agencies have the same level of success at conducting environmental 

cleanups and today’s hearing will examine what works and what doesn’t with respect to Federal remediation under CERCLA. We should work to figure out what 

can be done to improve cleanups to better protect our nation’s land and water. 

EPA may have room to improve how it conducts response activities under 

CERCLA too. Last month we learned that an EPA contractor working at a mine 

in Colorado somehow triggered a release of contaminated water into the Animas 

River. This is unacceptable and we are still investigating the incident to find out: 

What exactly went wrong? Who was responsible? What were the standards of care 

the personnel at the site were operating under and did they breach those standards? 

What can be done to prevent future such incidents? 

I hope that lessons we learn from this incident can help us make good, corrective 

policy choices. No one ever wants to see headlines like that again. 

But today I thank witnesses from the Department of Defense, Department of Energy, EPA, and GAO to compare their perspectives on CERCLA cleanups. And next 

week we will welcome back the Environmental Council of States and the Association 

of State and Territorial Solid Waste Management Officials who will be sharing with 

us the State perspective on federal facility cleanups. 

6 

I commend all my committee colleagues for working together on these issues. 

Mr. SHIMKUS. Is there anyone on the majority side wishing to 

seek time? 

Seeing none, the chair now recognizes the ranking member of the 

full committee, Mr. Pallone, for 5 minutes. 

OPENING STATEMENT OF HON. FRANK PALLONE, JR., A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEW JERSEY 

Mr. PALLONE. Thank you, Mr. Chairman and our ranking member, for calling this hearing on the Superfund program. 

Superfund has been an incredibly important tool for protecting 

public health and the economy in my home State of New Jersey 

and throughout the country, and thousands of contaminated sites 

have been cleaned up and revitalized, including many former Federal sites. 

As successful as Superfund has been, there is still so much important cleanup work to be done. I expect we will hear from today’s 

panel about the staggering number of abandoned mine sites—just 

a subset of Federal sites and even smaller subset of contaminated 

sites nationwide. And I hope that my colleagues on this subcommittee will join me in working to ensure that EPA, other Federal agencies, state and local communities, have the resources 

needed to get these cleanups done. 

Superfund sites are contaminated with toxic substances that can 

make their way into drinking-water wells, creeks and rivers, backyards, playgrounds, and streets. Communities impacted by these 

sites can face restrictions on water use and recreational activities 

as well as economic losses as property values decline due to contaminated land. In the worst cases, residents of these communities 

can face health problems such as cardiacimpacts, infertility, low 

birth weight, birth defects, leukemia, and respiratory difficulties. 

The major environmental laws that are truly the powerful legacy 

of this committee have consistently held that polluters must pay 

for environmental harms. The principle is the heart of the Superfund program and should be preserved. For Federal facility cleanups, that means that we in Congress have a duty to ensure funds 

are appropriated to cover cleanup needs. For private facilities, that 

means we have a duty to reinstate the Superfund tax and stop 

charging taxpayers for cleanups. 

In 1995, despite opposition from myself and other Democrats, a 

Republican Congress allowed the Superfund tax to expire. Before 

its expiration, the collected taxes were placed into a Superfund 

trust fund that was used for the cleanups of so-called orphan sites, 

where the party responsible for the pollution either no longer existed or could not afford the cost of the cleanup. The thousands of 

abandoned mines across the Western United States are examples 

of such sites. Without those revenues, important Superfund cleanups have been delayed, the backlog of sites needing cleanup has 

grown, and the costs have shifted to the taxpayers. 

As many of you know, I have routinely introduced legislation, the 

Superfund Polluter Pays Act, which would replenish the Superfund 

trust fund by reinstituting the taxes that the oil and gas companies 

7 

paid between 1980 and 1996. The legislation reinstates a 9.7-centsa-barrel tax on petroleum, a tax on 42 chemicals, and a corporate 

environmental income tax of 12 percent on taxable income in excess of $2 million. This would help ensure that the EPA has sufficient funds available for the costs of investigation and cleanups of 

these toxic sites. 

Reinstating this tax should be a part of any conversation we 

have in Congress about Superfund, but the tax itself is not enough. 

We need higher appropriations for Federal agencies with responsibility for cleanups, and we need financial responsibility requirements to stop the proliferation of abandoned mines and other orphan sites. 

Under section 108 of Superfund, EPA has been working to establish such requirements for hard-rock mining and eventually for 

other polluting industries. Financial responsibility requirements 

would ensure that any company undertaking the dangerous practice has the resources necessary to cover the costs of anticipated 

cleanup needs. 

Republicans have blocked these requirements in recent years 

through appropriation riders, a practice that I hope will stop in the 

wake of the Gold King Mine spill last month. 

Removing public health hazards by cleaning up contaminated 

sites is incredibly important for the surrounding communities. 

Cleaning up toxic Superfund sites not only reduces human health 

risks, it helps create jobs during the cleanup and, through newly 

uncontaminated and productive land, makes it ready for redevelopment. So we should all support cleanup efforts and should ensure 

that those efforts are funded. 

Again, I look forward to today’s testimony. I thank both the 

chairman and Mr. Tonko for calling this hearing. 

I yield back. 

[The prepared statement of Mr. Pallone follows:] 

PREPARED STATEMENT OF HON. FRED UPTON

Today’s hearing examines the important role federal agencies play in protecting 

our land and water resources through cleanups at federally owned and operated facilities. 

Federal officials in all branches, but particularly at EPA, want to exert leadership 

in environmental protection. As most successful coaches know, inspiring leadership 

comes first by setting a good example. Federal agencies must set a good example 

in how they assess contamination and conduct cleanups if they expect the American 

people to take their efforts to prevent and clean up hazardous materials seriously. 

We know that federal agencies do many things well but there is room for improvement. Not all agencies have the same level of success at conducting environmental 

cleanups and today’s hearing will examine what works and what doesn’t with respect to Federal remediation under CERCLA. We should work to figure out what 

can be done to improve cleanups to better protect our nation’s land and water. 

EPA may have room to improve how it conducts response activities under 

CERCLA too. Last month we learned that an EPA contractor working at a mine 

in Colorado somehow triggered a release of contaminated water into the Animas 

River. This is unacceptable and we are still investigating the incident to find out: 

What exactly went wrong? Who was responsible? What were the standards of care 

the personnel at the site were operating under and did they breach those standards? 

What can be done to prevent future such incidents? 

I hope that lessons we learn from this incident can help us make good, corrective 

policy choices. No one ever wants to see headlines like that again. 

But today I thank witnesses from the Department of Defense, Department of Energy, EPA, and GAO to compare their perspectives on CERCLA cleanups. And next 

8 

week we will welcome back the Environmental Council of States and the Association 

of State and Territorial Solid Waste Management Officials who will be sharing with 

us the State perspective on federal facility cleanups. 

I commend all my committee colleagues for working together on these issues. 

Mr. SHIMKUS. The gentleman yields back his time. 

I would now like to recognize—and I will introduce you when 

your time comes to speak. 

First would be the Honorable Mathy Stanislaus, Assistant Administrator, Office of Solid Waste and Emergency Response at the 

U.S. Environmental Protection Agency. 

Your full statement is in the record. You have 5 minutes. And 

welcome back. 

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

MARK WHITNEY, PRINCIPAL DEPUTY ASSISTANT SECRETARY FOR ENVIRONMENTAL MANAGEMENT, U.S. DEPARTMENT OF ENERGY; JOHN CONGER, PERFORMING THE DUTIES OF THE ASSISTANT SECRETARY OF DEFENSE FOR ENERGY, INSTALLATIONS, AND ENVIRONMENT, U.S. DEPARTMENT OF DEFENSE; AND ALFREDO GOMEZ, DIRECTOR, NATURAL RESOURCES AND ENVIRONMENT, U.S. GOVERNMENT 

ACCOUNTABILITY OFFICE 

STATEMENT OF MATHY STANISLAUS 

Mr. STANISLAUS. OK. Thank you. 

Chairman Shimkus, Ranking Member Tonko, Congressman 

Pallone, and members of the subcommittee, I am Mathy 

Stanislaus, Assistant Administrator for the Office of Solid Waste 

and Emergency Response. And, again, thank you for inviting me 

here to talk about the Superfund program. 

Specifically, I want to talk about the Federal facilities component 

of it, which is the focus of this hearing. The cleanup of Federal facilities is led by the Federal agencies who have delegated authority 

with properties under their responsibility, with the EPA having a 

discrete role, which I will get into in a second. 

CERCLA section 120 provides a framework for identifying contaminated Federal facility sites, assessing actual or potential environmental risks from these sites, and assuring cleanup and other 

actions to protect public health and the environment. Under section 

120, Federal facilities are required to comply with CERCLA in the 

same manner and to the same extent, both substantively and procedurally, as private entities. 

Section 120 includes provisions and timetables that apply to Federal facilities only, including requiring the EPA to establish a Federal agency hazardous waste docket, requiring completion of a preliminary assessment by a Federal facility after docket listing, requiring a Federal agency to commence a remedial investigation and 

feasibility study within 6 months of that facility being placed on 

the National Priorities List, and requiring that the EPA and the 

Federal facility agency enter into an interagency agreement referred to as a Federal facility agreement at all NPL sites. Also, 

9 

there are specific provisions that govern the transfer of Federal facilities to private entities. 

Under Executive Order 12580, Federal agencies are designated 

as the lead agency for carrying out many of CERCLA’s statutory 

requirements at their facilities. However, EPA retains the final decision authority over a small subset of these. These are National 

Priorities List sites. If the Federal agency and department and 

EPA are unable to reach agreement on the selection of remedial action at these NPL sites, the EPA’s Administrator makes the final 

decision. 

The shared responsibility of program implementation under 

CERCLA has unique challenges for EPA and other Federal agencies but has generally worked effectively. Currently, there are 157 

final Federal facility sites on the NPL, and another 17 Federal 

sites have been deleted from the NPL. Approximately 80 percent 

of these 174 sites are DOD component sites. 

The CERCLA framework has worked effectively for helping to 

ensure appropriate cleanup for more than 20 years. Moreover, because States are often parties to a Federal facility agreement and 

State laws and regulations may apply to State site cleanups, States 

and EPA work together to ensure that the NPL cleanups meet statutory requirements, protective of public health and the environment, and incorporate pertinent State requirements. 

The EPA is engaging with other Federal departments and agencies on a range of activities to maintain and accelerate cleanup 

progress at Federal facilities. For example, we are working collaboratively with DOD on tools for advancing geophysical classification 

to allow for more accurate and efficient cleanup of munitions sites, 

a fairly significant issue; improving site-level data quality; and resolving technical issues associated with emerging contaminants. 

Ensuring that people have environmental information about 

their communities is a top priority of my office. In 2010 and 2011 

as part of ongoing efforts to enhance community engagement, my 

office reached out to diverse stakeholders through the Federal Facility Dialogue, as well as the Federal agencies represented here 

today. What we heard from stakeholders is that there is a need for 

more transparent and easily accessible information on cleanup 

progress and long-term protectiveness. 

We have begun to move forward on some of these issues. For example, for the past 5 years, the EPA has led an interagency working group to make improvements to the 5-year review process that 

would force a greater transparency and participation from impacted communities. When wastes are left in place, EPA assesses 

whether remedies continue to be protective of public health and the 

environment through a 5-year review. And we are continuing to 

modernize the Federal Agency Hazardous Waste Compliance Docket and exploring ways to make the program data more accessible 

to communities and other stakeholders, as required by CERCLA. 

In 2012, the EPA, in collaboration with other Federal agencies 

and departments, completed a Federal facilities site evaluation 

project. This project evaluated the disposition of 514 federally 

owned sites that EPA identified as potentially stalled in their 

progress. Through this process, EPA has been able to make an activity determination on 491 of the 514 sites on this list. Initiatives 

10 

like this allow EPA to ensure the Federal facility information is up 

to date and communities have the most pertinent information on 

that site. 

I will close, and look forward to your questions. 

[The prepared statement of Mr. Stanislaus follows:] 

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Mr. SHIMKUS. Thank you. 

The chair now recognizes Mr. Mark Whitney, Principal Deputy 

Assistant Secretary for Environmental Management with the U.S. 

Department of Energy. 

Sir, you are welcome. You are recognized for 5 minutes. 

STATEMENT OF MARK WHITNEY 

Mr. WHITNEY. Thank you, and good morning, Chairman 

Shimkus, Ranking Member Tonko, and members of the subcommittee. I am pleased to be here today to represent the Department of Energy’s Office of Environmental Management and to discuss the Comprehensive Environmental Response, Compensation, 

and Liability Act. 

The Environmental Management program was established in 

1989 with the mission to clean up the largest and most complex 

nuclear waste sites in the world as safely, effectively, and quickly 

as possible. This involves some of the most dangerous materials 

known to humankind, and it is no simple task. But the EM has 

completed cleanup activities at the 91 sites across 30 States since 

their inception, leaving the remaining cleanup work at 16 sites in 

11 States. That is approximately $150 billion worth of cleanup 

work completed since the inception of the program. 

Sites like Fernald in Ohio and Rocky Flats in Colorado have been 

cleaned up and are now wildlife preserves. We have decommissioned and demolished more than 2 million square feet of excess facilities and removed all EM special nuclear material from the 

Idaho National Laboratory. We produced nearly 4,200 cannisters of 

vitrified high-level waste at Savannah River site and the West Valley sites combined, and we have closed 6 underground storage 

tanks at the Savannah River site. We demolished the K–25 building at the Oak Ridge site, which was once the largest building 

under a single roof in the would. 

The Federal Government’s investment in EM is resulting in safe 

and secure nuclear waste and reduced risk to the American people 

and environment. 

One of the great success stories of the program is the cleanup of 

the Rocky Flats site, which is listed on the National Priorities List, 

and cleanup was guided by a tri-party interagency agreement. In 

October 2005, EM completed the cleanup significantly under estimated cost and schedule. 

A number of factors were important contributors to the success 

of the Rocky Flats cleanup, including a collaborative working relationship with the regulators, both the State regulators and Environmental Protection Agency; an incentivized and motivated management and operations contractor; consistent and reliable budget 

appropriations; a closure managed as a finite project; involved 

stakeholders; and engaged workers and public. 

The Department has a balanced approach under the regulatory 

frameworks of the applicable environmental regulations, including 

CERCLA, also the Resource Conservation Recovery Act, or RCRA, 

the Atomic Energy Act, and the National Environmental Policy 

Act. And this guides and directs our cleanup actions. 

EM continues to pursue its cleanup objectives safely within a 

framework of regulatory compliance, and the Department has 19 

20 

sites currently listed on the EPA’s National Priorities List. EM is 

responsible for the cleanup of 11 DOE NPL sites which are located 

across 7 states. 

Under CERCLA, EPA oversees the Department’s cleanup actions 

at NPL sites, and, although States are not a delegated authority 

for oversight of DOE’s NPL site cleanup under CERCLA, State regulators are active participants in the CERCLA process. We work 

with EPA in the States to determine site priorities, evaluate cleanup approaches, develop a schedule for cleanup activities, and specify the requirements the site cleanup actions and activity must 

meet. 

These collaborative decisions are memorialized as binding commitments in a Federal Facility Agreement or a tri-party agreement 

between the state, EPA, and DOE. And these regulatory frameworks set cleanup standards and govern our cleanup activities. 

Generally, cleanup levels are directly tied to the expected future 

land uses of our sites. We have nearly 40 agreements at the 16 

sites where we are working. 

Largely EM has had success working with state regulators when 

it comes to negotiating, updating, and improving compliance agreements. Our site office have weekly, often daily, interactions with 

our regulators, state and EPA, to keep them apprised of site activities. 

We also currently have one Federal Advisory Committee Actchartered Site-Specific Advisory Board, with eight local advisory 

boards organized under that umbrella. Members of these advisory 

boards include people directly affected by site cleanup activities, 

such as stakeholders from local governments, tribal nations, environmental and civic groups, labor organizations, universities, industries, and other interested parties and citizens. 

A collaborative relationship with state and Federal regulators 

and the public is essential to successfully completing our cleanup 

at our sites. 

In addition to the collaborative relationships with regulators and 

stakeholders, there is also a need for continued investment in research and development for our program. We believe through 

strengthening the scientific basis for decisionmaking, the improvement in the effectiveness of cleanup technologies, as well as development of new technologies that address difficult and one-of-a-kind, 

unique issues and challenges, it is our hope that costs and project 

timelines can be reduced. 

Mr. Chairman, Ranking Member Tonko, and members of the 

subcommittee, I am again honored to be here today representing 

the Office of Environmental Management. I appreciate your interest in our work, and I appreciate the funding provided by Congress 

for EM each year. 

We are committed to achieving our mission within a framework 

of regulatory compliance and will continue to comply innovative environmental cleanup strategies and to complete our work safely 

and efficiently, thereby demonstrating value to the American taxpayers. 

Mr. Chairman, I know you have had the opportunity in the past 

to visit the Savannah River site fairly recently and get a firsthand 

21 

look at the magnitude and the challenges that we face on a dayto-day basis in implementing our cleanup work at our sites. 

I would invite and encourage every member of the subcommittee 

to visit our sites and would be happy to assist in arranging tours 

and those visits as appropriate. 

With that, I am pleased to answer any questions as we move forward that you may have. Thank you. 

[The prepared statement of Mr. Whitney follows:] 

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Mr. SHIMKUS. Thank you very much. 

Next, I would like to recognize Mr. John Conger, performing the 

duties of the Assistant Secretary of Defense, Energy, Installations, 

and Environment, U.S. Department of Defense. 

You are recognized for 5 minutes, and welcome. 

STATEMENT OF JOHN CONGER 

Mr. CONGER. Thank you, Mr. Chairman. Good morning. 

Chairman Shimkus, Ranking Member Tonko, distinguished 

members of the subcommittee, thank you for the opportunity to discuss the Department of Defense’s cleanup activities and the 

progress we have made to date. 

The Department has long made it a priority to protect the environment. From a mission perspective, we want to ensure that we 

have the land, water, and air space that we need for military readiness. Moreover, we must protect the health of the military and civilian personnel and their families who live and work on our bases, 

to ensure our operations don’t affect the health and environment 

of surrounding communities, and to preserve resources for future 

generations. 

While we are here to talk about cleanup of past contamination, 

I want to emphasize that we are committed to rigorously complying 

with current laws to minimize new contamination. Our funding requests, our strong relationships with Federal, state, and local 

stakeholders, and our continued progress reflect that commitment. 

The Department of Defense is responsible for approximately 

39,000 cleanup sites across hundreds of active and closed bases. 

And, if I could, I have heard the term ‘‘site’’ used by other witnesses, and I think they use it differently than I do. I am talking 

about specific instances of pollution. Multiple sites can occur on a 

single installation. So I think the numbers that I have heard earlier reflect that an entire installation would be a single site, and 

we break it out differently. But, in any case, 39,000 cleanup sites 

across hundreds of installations. 

In order to make the most impact, we continually reassess DOD’s 

cleanup program to ensure that we address the highest-risk sites 

first, a process we conduct in collaboration with EPA and with the 

States. At the same time, we are committed to completing cleanup 

or achieving ‘‘response complete’’ and ‘‘no further action required’’ 

at all of our sites. 

We appreciate Congress’ support for the roughly billion-and-ahalf dollars a year we spend on cleanup. At this point, more than 

80 percent of our 39,000 sites have reached ‘‘response complete.’’ I 

am proud to say that we remain on track to meet our internally 

set goals of 90 percent ‘‘response complete’’ by the end of 2018 and 

95 percent by the end of 2021. 

None of our successes would have been possible without investments in groundbreaking research and development in environmental technology. These are aimed at tackling our most difficult 

cleanups. Recent successes include bioremediation techniques for 

groundwater cleanup and detection technology to help find buried 

munitions. We are beginning to focus our R&D on capabilities 

needed to accelerate cleanup of the complex sites that will remain 

after we achieve our 2021 goals. 

28 

Finally, I would like to highlight the contributions of our state, 

local, and Federal partners. State and local stakeholders help us to 

develop site management plans, play an active role in remedy selection, and have important oversight responsibilities. To that end, 

we have established three high-level working groups and approximately 200 restoration advisory boards for local input to provide forums for local communities, state regulators, and other Federal 

regulators to discuss cleanup issues and concerns with us. 

We are also committed to interagency efforts. For example, my 

staff and senior leaders from the three military components meet 

with EPA headquarters staff quarterly to ensure our programs are 

on track and moving forward. 

In conclusion, our focus remains on continuous improvement in 

the restoration program. We have been identifying cleanup sites 

since the 1970s and have come a long way. Still, we are fully aware 

of the magnitude of our mission, and we look forward to continuing 

our partnerships and making smart investments in technology to 

meet our outlined goals. 

Thank you again for the opportunity to testify today, and I look 

forward to answering your questions. 

[The prepared statement of Mr. Conger follows:] 

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Mr. SHIMKUS. Thank you very much. And, again, we welcome 

you here. 

Now, Mr. Alfredo Gomez, no stranger to this committee, Director 

of Natural Resources and the Environment at the U.S. Government 

Accountability Office. 

Welcome. You have 5 minutes. 

STATEMENT OF ALFREDO GOMEZ 

Mr. GOMEZ. Thank you, Mr. Chairman. 

Chairman Shimkus, Ranking Member Tonko, and members of 

the subcommittee, good morning. I am pleased to be here today to 

discuss our work on hazardous waste cleanup at Federal facilities. 

The Federal Government owns over 700 million acres of land. 

Some of this land is managed by the Departments of Agriculture, 

Interior, Defense, and Energy and is contaminated with hazardous 

waste that poses serious risks to human health and the environment. The cleanup of these sites can require substantial time and 

expense, as you have heard already. 

In response, Congress passed CERCLA, also known as Superfund, which requires owners and operators of hazardous waste to 

notify the Environmental Protection Agency of the existence of 

their potentially contaminated facilities. Based on the risks a site 

poses, EPA may place the site on the National Priorities List, a list 

that includes some of the Nation’s most seriously contaminated 

sites. As of September this year, there are 158 Federal sites on the 

list. 

My statement today summarizes the results of several reports on 

the topic. I will talk about three key points: first, the number of 

contaminated and potentially contaminated Federal sites for the 

four departments; two, spending on and estimates of future costs 

for cleanup at these sites; and three, EPA’s role in maintaining the 

list of contaminated and potentially contaminated Federal sites and 

ensuring that preliminary assessments of such sites are complete. 

The first point is that, while the four departments have identified thousands of contaminated and potentially contaminated sites, 

they do not have a complete inventory of sites, in particular for 

abandoned mines. 

Specifically, while the U.S. Department of Agriculture had identified over 1,400 contaminated sites and many potentially contaminated sites, the Department did not have a reliable centralized site 

inventory for abandoned mines. The Department’s Forest Service 

estimated that there were from 27,000 to 39,000 abandoned mines 

on its land. The Department of the Interior had an inventory of 

4,722 sites with confirmed or likely contamination. However the 

Department’s Bureau of Land Management had identified over 

30,000 abandoned mines that were not yet assessed for contamination, and this inventory was not complete. 

The Department of Defense reported to Congress in June of 2014 

that it had 38,804 sites in its inventory of sites with contamination. 

The Department had the greatest number of sites on the National 

Priorities List. The Department of Energy reported that it had 16 

sites in 11 States with contamination, and, as you have heard already, the Department is responsible for one of the world’s largest 

environmental cleanup programs. 

37 

Second, with regards to the cost of cleanup at these sites, the 

four departments reported allocating and spending millions of dollars annually on environmental cleanup, and an estimated future 

cost in the hundreds of millions of dollars or more in environmental 

liabilities. 

For example, the Department of the Interior allocated for fiscal 

year 2013 about $13 million for environmental cleanup efforts and 

reported $192 million in environmental liabilities. The Department 

of Energy received an annual appropriation of about $5.9 billion in 

fiscal year 2015 to support cleanup activities, and, in 2014, the Department estimated its total liability for environmental cleanup at 

almost $300 billion. 

Third, as of August 2015, EPA had compiled a docket of over 

2,300 Federal sites that may pose a risk to human health and the 

environment. EPA has noted that it is difficult to know about a site 

if the agencies have not reported it. EPA is also responsible for ensuring that Federal agencies assess the sites for contamination and 

has established 18 months as a reasonable timeframe for agencies 

to complete preliminary assessments. However, some agencies may 

take 2 or 3 years to complete an assessment. 

So, in summary, there are thousands of contaminated sites, and 

the list is not complete. The four departments have spent millions 

annually for cleanup and have estimated future costs in the billions 

of dollars. And, lastly, EPA has compiled a docket of over 2,300 

Federal sites that may pose a risk to human health and the environment. 

Mr. Chairman, Ranking Member Tonko, members of the subcommittee, that concludes my statement, and I would be happy to 

respond to questions. 

[The prepared statement of Mr. Gomez follows:] 

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Mr. SHIMKUS. Thank you very much. 

Before I start with my questions, we are going to have two panels. The second panel is going to have the states represented, along 

with another person, who we don’t know who that is yet. But it 

was the intent to maybe have it all on one panel so you could hear 

the concerns posed by the states. And it is my hope that you all 

will follow up and at least listen to the second panel. 

There are always 10 legislative or business days with followup 

questions, so a lot of the followup questions that we will present 

in writing will be based on the second panel testimony. I think it 

is going to be instructive and educational, and I hope you pay attention to that also. 

Having said that, let me start with my questions. 

Mr. Stanislaus, do you think that Executive Order 12580, in delegating lead cleanup status to agencies that may have caused contamination at a Federal facility and which are responsible for paying for cleanups, creates a potential conflict? 

Mr. STANISLAUS. So all I can really speak about is those sites 

within our responsibility. So, of those sites within our responsibility, we do have an ability, EPA, to oversee that subset of sites. 

Those are sites on the National Priorities List. Other sites, we 

don’t have that ability. It has been delegated directly to the other 

Federal agencies. 

Mr. SHIMKUS. So let me ask this again. Do you think that the 

funding mechanism—OK, so you have a Federal agency; they have 

a contaminated site. They are, because of the Executive order, 

given the authority for remediation, but the funding also comes out 

of their own budget. 

Does that cause a conflict? Does that make it difficult? Do they 

then make up—are they making a cost-benefit analysis based upon 

budgetary outlays? 

Mr. STANISLAUS. Well, with respect to how the other agencies 

make that decision, I don’t really know. But I can tell you from 

where EPA is involved in overseeing sites by the various Federal 

agencies, there is a real value to have independent review of everything from the scope of work and the implementation of the work. 

Mr. SHIMKUS. So let me go to Mr. Whitney. 

This is really the genesis of the questions that I am going to 

have for all the panelists. In the situation where DOE is both the 

primary responsible party and the lead agency making remedial 

decisions, can you understand the potential conflict, concern about 

conflict, and the worry that remedial decisions may be based on 

budgetary considerations? 

Mr. WHITNEY. Thank you, Chairman. 

So, for the Department of Energy sites, while we are the lead 

agency for the cleanup, we do not have a regulatory role. That regulatory role is by the EPA and the states. And so, sir, I don’t see 

a conflict of interest. We work very closely and—— 

Mr. SHIMKUS. But you are still the lead agency, whether there 

is an oversight role or not? 

Mr. WHITNEY. Yes, sir. 

Mr. SHIMKUS. OK. 

And, really, Mr. Conger, same question. 

67 

Mr. CONGER. Yes, no, I don’t see a conflict. Most of the contamination that we are cleaning up, it dates from a long time ago, and 

it is not like there is a conflict at a particular location between the 

person cleaning something up and whoever had made the spill or 

whatever. 

We are pretty successful in getting appropriations for this cleanup. We have a very stable roughly billion-and-a-half dollars a year 

that we get into this program. We have schedules that have been 

fairly stable over the years worked out with the EPA and the 

states. I don’t see any conflict or any problems on this. 

Mr. SHIMKUS. Let me go back to Mr. Whitney. 

What happens if two different Federal agencies assert lead agency authority? 

And, Mr. Conger, you can address it too. 

For example, if one agency currently owns the property but another agency caused the contamination, which agency, in fact, has 

the lead agency authority? 

Mr. WHITNEY. Sir, I am not aware of that with respect to DOE 

sites. 

Mr. SHIMKUS. Mr. Conger, are you aware of that? 

Mr. CONGER. I can think of an example or two. So here is the 

dynamic. Where we cause the contamination and then transfer a 

property, through BRAC or whatever other mechanism—we have a 

responsibility for cleaning up all the contamination that we know 

about. That is the dynamic that we are dealing with. We have 

CERCLA responsibilities, and we uphold them. 

Mr. SHIMKUS. And we are not trying to play gotcha. A lot of this 

stuff is way before we were better environmental stewards, more 

focused on it. And so this is not an attempt at gotcha. It is just 

clarifying the record, trying to get answers for our questions. 

I want to make sure I get to Mr. Gomez for my last question. 

In your written testimony, you recommend that Congress should 

change section 120 of CERCLA to add a deadline for Federal agencies to complete their preliminary assessments. Can you explain 

that? Please explain that. 

Mr. GOMEZ. Certainly. Yes, we did note that in the report. 

EPA has essentially set 18 months as a reasonable timeframe for 

agencies to complete preliminary assessments. And what we found 

was that some agencies were taking 2 to 3 years to complete them. 

So we suggested that Congress consider giving EPA the authority 

to actually enforce that requirement. And we don’t specifically set 

what that requirement should be, but we do note that EPA has already set a reasonable timeframe of 18 months. 

Mr. SHIMKUS. So your recommendation is that the EPA have an 

enforceable deadline, and in your analysis you don’t really choose 

what that is. 

Mr. WHITNEY. Correct. 

Mr. SHIMKUS. OK. Great. Thank you very much. I appreciate it. 

My time has expired, and I yield to the ranking member of the 

subcommittee, Mr. Tonko, for 5 minutes. 

Mr. TONKO. Thank you. And, again, I thank the chair for convening this panel to provide us with a progress report on Federal 

facility cleanups under Superfund. 

68 

Last Congress, this committee considered legislation to change 

the treatment of Federal facility cleanups under Superfund. That 

bill was not based on an oversight record and included several misguided provisions. I did indeed oppose that legislation, as did all 

of my Democratic colleagues on the committee. So I welcome this 

opportunity to build the committee’s record on these issues and 

hear from some of our agencies involved in Federal facility cleanups. 

I would like to start by asking about Federal responsibilities 

under current law. 

Mr. Conger and Mr. Whitney, under current law, are you subject 

to the liability and cleanup requirements of Superfund at sites 

where you are a responsible party? 

Mr. WHITNEY. Maybe I will go first, if that is OK. 

Yes, sir. The Department of Energy is subject to the same requirements as private entities under CERCLA. 

Mr. TONKO. Thank you. And—— 

Mr. CONGER. Yes. 

Mr. TONKO [continuing]. Mr. Conger, you are in agreement. 

Mr. Stanislaus, under current law, are all Federal agencies subject to the liability and cleanup requirements in Superfund? 

Mr. STANISLAUS. Yes. 

Mr. TONKO. In fact, section 120 of Superfund imposes additional 

requirements on Federal agencies that private parties do not face, 

I believe. 

Mr. Conger, what obligations does Superfund place on the Department of Defense and other agencies before you can transfer 

land? 

Mr. CONGER. Before we transfer—so it is a little complicated. We 

can transfer land that is contaminated with a guarantee to clean 

it up after the transfer; we can have that set up in the agreement. 

We have a responsibility for cleanup regardless of when the transfer occurs. 

Mr. TONKO. OK. And is that true also in regard to the BRAC 

process where we are addressing the realignment and closure of 

bases? 

Mr. CONGER. Yes, that is generally true. 

I want to be careful not to—I am not going to pretend to be an 

attorney here. And so, as we go into the finer points of the law— 

I will double check for the record the answers to your questions. 

But, in a broad sense, we have responsibilities to perform the 

cleanup at BRAC sites or whatever other transferred sites we have. 

We have on occasion not let that hold up the transfer of property, 

but rather, you know, with eyes open to whoever is receiving the 

property either agreed to clean it up after the fact or made an 

agreement or arrangement to have it cleaned up after transfer. 

Mr. TONKO. And, Mr. Gomez, do private parties face these given 

obligations? 

Mr. GOMEZ. That is something I would have to get back to you, 

Mr. Tonko. I have to get back to you on that. 

Mr. TONKO. OK. 

I am sure that our ranker, Mr. Pallone, and others on the subcommittee will delve into the details more. But it is clear that 

there are a lot of potentially contaminated sites on Federal land 

69 

that still need to be assessed and cleaned up, but a good deal already has been done, as I indicated earlier. 

Mr. Conger, can you describe the progress that DOD has made 

in cleaning up its inventory of Superfund sites? 

Mr. CONGER. Certainly. And I won’t just limit it to Superfund, 

because we track all of our cleanup sites together in a fairly 

large—it is 39,000 sites together in a single database. And I could 

probably break it out, but I don’t have that available. I can get that 

for the record. 

But, frankly, we are complete with cleanup at 80 percent of our 

sites. We set fairly aggressive goals a few years ago to get to 90 

percent by 2018. We are on track for that. We are looking at getting 95 percent of our sites cleaned up by 2021. 

We will have some complex sites that are left over at that point. 

I am not going to pretend that it is going to be done in a few years 

at that point, those last 5 percent. But that is why we use R&D. 

We attack the difficult problems with some our research funding to 

try and figure out how we are going to be able to accelerate 

timelines or to clean it up better. 

And when we do come up with something, like the bioremediation techniques that we came up for cleaning up groundwater, 

that is applicable to the private sector, as well, and they use those 

techniques, as well, once we figure it out for our own purposes. 

Mr. TONKO. Yes. 

And, Mr. Whitney, can you describe the progress with DOE? 

Mr. WHITNEY. Yes, sir. As I mentioned, we have cleaned up 91 

of our sites across 20 states, and we have 16 sites remaining. 

We have reduced the footprint, the cleanup footprint, in Environmental Management, the DOE complex, by 90 percent. And when 

we talk about our sites, we talk about square miles and not square 

acres. And we are down to about 250 square miles, and we were 

previously around 3,000 square miles when we started with the 

program. 

So we have had significant accomplishments across the complex. 

Now, as my colleague here has stated for DOD, we have some complex challenges remaining ahead of us. And probably the most difficult challenges remain ahead of us. 

Mr. TONKO. Yes. 

I see my time is up, so I will yield back, Mr. Chairman. 

Mr. SHIMKUS. Thank you. 

The chair now recognizes the gentleman from Mississippi, Mr. 

Harper, for 5 minutes. 

Mr. HARPER. Thank you, Mr. Chairman. 

And thanks to each of you for being here. 

And I am just curious, Mr. Stanislaus, how many times have you 

now testified before a committee or subcommittee? 

Mr. STANISLAUS. I think I should get an honor of some type. 

Mr. HARPER. Surely. 

Mr. SHIMKUS. Oh, you are going to get one. 

Mr. HARPER. Have you kept up with the number of times 

that—— 

Mr. STANISLAUS. I have to get back to you. 

Mr. HARPER. Yes, yes. That was the answer I was looking for. 

Thank you very much. 

70 

I am going to remember that one, Mr. Stanislaus. 

Mr. Gomez, you just testified, and, obviously, your 2015 report 

noted that, while Interior and USDA have identified thousands of 

contaminated and potentially contaminated sites, they don’t have a 

complete inventory of sites. Can you elaborate on that a little bit? 

And then tell me, how do you remedy that? 

Mr. GOMEZ. Sure. 

So, as I noted in the opening statement and also in our report, 

Interior and Agriculture have identified thousands of contaminated 

sites, but their inventory, particularly for abandoned mines, is incomplete, and in some cases not reliable. In the case of the Forest 

Service, the different regional offices have different ways of gathering information. 

And just one example on the Interior side is, for example, the 

Bureau of Land Management estimated an additional 100,000 

mines that have yet to be inventoried in three States. And those 

are the States of California, Nevada, and Utah. So they have, we 

believe, quite a bit of work to do when it comes to abandoned 

mines. 

Mr. HARPER. And, also, Interior and USDA disagree over some 

of the docket listings that exist now. Tell us what the disagreement 

is about or if that is significant. 

Mr. GOMEZ. Sure. 

One disagreement is between EPA and Interior with regards to 

the overall approach to listing sites on the docket that are not reported to EPA by the agencies. Interior believes that CERCLA does 

not give EPA the discretion to list sites unless Interior reports 

those sites to EPA and that EPA should limit listing only sites that 

agencies report to it. 

Now, both Interior and USDA also believe that abandoned mines 

should not be listed on the docket. And the idea there is that these 

sites have contamination that wasn’t caused by the agencies. EPA’s 

view on that is, regardless of whether the contamination was 

caused by someone else or the Federal agency, these sites are now 

under the ownership of the Federal Government, and the Federal 

Government needs to take responsibility for it. 

Mr. HARPER. So how do we get one list? How do we ever get to 

one list? 

Mr. GOMEZ. It is a work in progress at the moment. And that is 

why we call attention to it, the inventories are not complete, and 

there is disagreement about what should be added to the docket. 

Mr. HARPER. And assuming we had a uniform list, it is not necessarily static, because you can have new sites that develop or become—— 

Mr. GOMEZ. Correct. 

And, also, for example, the docket includes sites that no longer 

need to be addressed. So it has sites that are contaminated sites, 

that are potentially contaminated, and then sites that don’t need 

to be addressed. There is no method currently to remove those sites 

from the docket. 

Mr. HARPER. Gotcha. 

Mr. GOMEZ. The docket is more of a historical record. 

Mr. HARPER. In your written testimony, you had mentioned that 

there is a lack of interagency agreements between DOD and EPA. 

71 

Can you elaborate on that and explain why this could be a problem 

or is a problem? 

Mr. GOMEZ. So we did work a number of years ago where we 

looked at 11 DOD installations, those installations had yet to enter 

into interagency agreements with the EPA, even though they had 

already been listed on the National Priorities List, in some cases 

for years. And we found that the lack of these interagency agreements resulted in delays of cleaning up those sites. 

Now, as of March 2013, when we looked into the issue again, 

most of those sites had interagency agreements. There were only 

two that did not. And, currently, there is only one site that doesn’t 

have an interagency agreement. 

Mr. HARPER. OK. 

Are there similar problems with other Federal agencies conducting cleanups under CERCLA? 

Mr. GOMEZ. So the work that we did had focused on the Department of Defense because they have the majority of National Priorities List sites. We didn’t look at the other agencies, so we don’t 

know if that problem also exists there. Perhaps our witness from 

EPA might be able to shed some light on that. 

Mr. HARPER. Thank you, Mr. Gomez. 

And thank you, Mr. Chairman, and I yield back. 

Mr. SHIMKUS. Thank you. 

The chair now recognizes the ranking member of the full committee, Mr. Pallone, for 5 minutes. 

Mr. PALLONE. Thank you, Mr. Chairman. 

Superfund cleanups are essential for public health, the environment, and the economic vitality of communities around these sites. 

And, unfortunately, in many of these communities, the wait for a 

cleanup drags on because funds and resources are limited, and the 

backlog of potentially contaminated sites is huge. 

So I wanted to ask Mr. Gomez, with that in mind, can you share 

some recent estimates of the number of potentially contaminated 

sites with regard to USDA and Department of Interior? 

Mr. GOMEZ. Sure. Thank you. 

So, with regards to the Department of Agriculture, they have 

identified almost 1,500 sites that are contaminated or potentially 

contaminated. Also, the Forest Service estimates that from 27,000 

to 39,000 abandoned mines on its land, and approximately 20 percent of those may pose some level of risk to public health or the 

environment. 

Now, on the Interior side, Interior has identified over 4,700 sites 

with confirmed or likely contamination. And the Bureau of Land 

Management has also identified over 30,000 abandoned mines that 

were not yet assessed for contamination. 

And I would also mention that, in addition to that, there was 

those additional 100,000 mines that need to be inventoried in three 

states. 

Mr. PALLONE. What about the number of sites under control of 

Defense or Department of Energy? 

Mr. GOMEZ. Sure. So the work that we did, which was issued in 

January of this year, focused on the Department of Agriculture or 

the Department of the Interior. We have not looked at what the 

72 

Department of Energy or Department of Defense have in its inventory. 

Mr. PALLONE. OK. 

Are there additional Federal sites controlled by other agencies? 

Mr. GOMEZ. Yes. There are some, for example, NASA sites that 

are out there. There was some work that the NASA IG was doing. 

So we didn’t look at NASA in our work. 

Mr. PALLONE. These numbers are staggering themselves, not to 

mention the departments that you haven’t looked at, but I think 

they are only part of the story. 

Can you share recent estimates of the cost to clean up these Federal sites? 

Mr. GOMEZ. Sure. So the estimates, as I noted also, are in the 

hundreds of millions of dollars. 

And just to give you some examples, maybe some examples that 

I didn’t mention, is the U.S. Department of Agriculture, for example, allocated in fiscal year 2013 over $22 million to do environmental cleanup and then also reported $176 million in environmental liabilities. 

The Department of Defense spent almost $30 billion from 1986 

to 2008 across all environmental cleanup and restoration activities 

at its installations. And then in its fiscal year 2014 financial report, 

DOD reported $58.6 billion in environmental liabilities. 

Mr. PALLONE. So if you look at the amount of money that is 

being spent versus what is needed, there is a huge gap, obviously. 

Let me turn to the three agencies on the panel. 

Are consistent and reliable appropriations important for completing cleanups in a timely manner, in your opinion? 

Mr. CONGER. I will start. 

Mr. PALLONE. Sure. 

Mr. CONGER. I think they are, and I think that is what we have 

had. As I have noted before, we spend about a billion-and-a-half 

dollars a year. That is a very stable amount of money. And we have 

the ability to plan with that amount of money, where we work out 

schedules with the EPA and the states. Everybody knows the pace 

of the work that is going to be going on, and I think there is a comfort level with that. 

And just a clarification point on the environmental liabilities that 

were mentioned earlier. The cleanup liability is smaller than the 

number that was cited. That is the entirety of all of our liabilities 

that include all of our nuclear ships and the eventual cleanup for 

those and a variety of other items. But the cleanup liability is closer to $27 billion. 

Mr. PALLONE. Let me just ask quickly ‘‘yes’’ or ‘‘no,’’ because then 

I want to ask one last question, could more cleanups be completed 

with greater resources? Just yes/no. 

Mr. CONGER. I think that there are also possibilities, but we have 

a stable program right now, and I think—— 

Mr. PALLONE. How about the other two guys? Yes or no? 

Mr. WHITNEY. Yes, sir. I think it could be—we know what our 

cleanup lifecycle is. So I don’t know if more cleanups could be completed, but the cleanups that we have could be completed quicker. 

Mr. PALLONE. And your—— 

73 

Mr. STANISLAUS. Well, I would say yes. And we have been subject 

to about a 20-percent cut of our resources to oversee the subset of 

sites that we have direct responsibility for, so that has, in fact, impeded the pace of work. 

Mr. PALLONE. All right. 

Let me just ask quickly, because I know my time is up. I just 

wanted to know if more investment in—I will ask Mr. Stanislaus. 

Could more invest in Federal cleanup efforts lead to the development of new technologies and best practices that can improve the 

cleanups nationwide? Quickly. 

Mr. STANISLAUS. I would say generally the answer is yes. And I 

think, as Mr. Conger noted, there are unique issues at the DOD 

and DOE sites. So, clearly, some technologies would help in some 

cases. 

Mr. PALLONE. All right. 

Thank you, Mr. Chairman. 

Mr. SHIMKUS. The gentleman’s time has expired. 

The chair now recognizes the gentleman from Ohio, Mr. Latta, 

for 5 minutes. 

Mr. LATTA. Well, thank you, Mr. Chairman. 

And to our panel, thanks very much for being here. 

If I could start with you, Mr. Stanislaus, since I guess you have 

won the record as being here the most, so I will start with the 

questions. 

Do you believe that current and formerly owned Federal facilities 

should have to comply with the same state requirements as a private entity conducting a cleanup under CERCLA? 

Mr. STANISLAUS. Well, I think CERCLA does, in fact, provide for 

that. 

Mr. LATTA. How often do you—let me just follow up. How often 

do Federal facilities comply with state laws and regulations? Is it 

all the time? 

Mr. STANISLAUS. Well, yes, I could only speak about those that 

we have direct responsibility for. So we do, in fact, engage the 

states continuously with respect to their role throughout the process of the investigation, the application of state requirements. So, 

with respect to those sites, the states play a partnership role. 

Mr. LATTA. When you say that it depends on what your role is, 

what is the percentage that you would be involved in those sites 

then? 

Mr. STANISLAUS. I will get you the exact percentage. It is relatively small, because we only have direct oversight responsibility 

on those sites that are listed on the National Priorities List, which, 

as I described earlier, there are lots of other sites under the responsibility of DOD, DOE, and the Department of Interior and Forest 

Service and—— 

Mr. LATTA. OK. 

Let me ask this. Is sovereign immunity often invoked by Federal 

agencies? 

Mr. STANISLAUS. Well, we have not found—from our role in oversight, that has not been an issue, from our perspective, but that 

is as much as I know. 

Mr. LATTA. OK. 

74 

And, also, do you believe that section 120 of CERCLA is evidence 

that Congress intended to waive sovereign immunity under 

CERCLA and to require Federal entities to comply with state 

cleanup laws? 

Mr. STANISLAUS. I may have to get back to that. I don’t know the 

answer to that question. Let me get back to you on that. 

Mr. LATTA. OK. 

Let me ask this then. Do you think that section 120 of CERCLA 

needs to be amended to make sure that Federal agencies do comply 

with state regulations and laws dealing with cleanup? 

Mr. STANISLAUS. Well, again, just within the sliver of sites within our responsibility, we largely have the states as a party to Federal facility agreements so they have equal rights as the EPA. And, 

at least from where we are involved in Federal facility sites, we 

view the states as a partner. And I really can’t speak to those sites 

that we don’t have a role in. 

Mr. LATTA. OK. Thank you. 

Mr. Conger, if I could turn to you, if I could ask, does DOD recognize and comply with state land use control laws and regulations 

related to environmental cleanups? 

Mr. CONGER. So the answer is it depends. It is complicated, and 

my lawyers will, I am sure, hope that I don’t give a simple answer 

to your question. So I will take that for the record formally, but let 

me give a sort of first-level answer to the question. 

Yes, of course, on those sites that we no longer own—on BRAC 

sites. Those are not Federal property, generally, and so those controls would apply. Where it is Federal property, it gets more complicated. And, again, not being a lawyer, I will take that specific 

instance for the record. 

Mr. LATTA. Do you all look at, when you are doing your reviews, 

do you look at the state land use laws and how that deals with the 

environmental cleanup? 

Mr. CONGER. Yes. And we are partners with the states when we 

do our cleanups. And, as Mathy indicated, most of the sites that 

we have, or at least a significant number, are regulated by the 

state regulators. We work with them. We work schedules out together, we work remedies out together. This is something we do in 

partnership. I am unaware of significant discontent in the states 

with how we are doing our program. 

Mr. LATTA. OK. 

Let me follow up with another question, if I may. Would you 

please describe in detail how DOD measures success or, to the use 

of the term you used in your written testimony, achieves ‘‘response 

complete’’? 

Mr. CONGER. Yes. 

So, in every cleanup, there is a process, as you well know. There 

is an investigation, which includes the preliminary assessment, the 

site inspection, the RI, the FS, et cetera, et cetera. The actual remediation, once we have a remedy in place and once have conducted all of the operations, all the remedial operations, and satisfied the regulators at a particular site, then we have achieved ‘‘response complete.’’ 

We will have some long-term monitoring in some places so that 

we go back and double check that the contamination hasn’t reVerDate Nov 24 2008 11:10 Jan 21, 2016 Jkt 037690 PO 00000 Frm 00078 Fmt 6633 Sfmt 6633 F:\MY DOCS\HEARINGS 114\114-73 CHRIS
75 

curred. But once we have taken all of the actions that we are supposed to take at the site, we achieve ‘‘response complete.’’ 

Mr. LATTA. One last real quick question. Do you measure that 

cleanup, then, with respect to the acres you clean up? Or how do 

you do that on—— 

Mr. CONGER. With respect to—I am sorry. 

Mr. LATTA. On the amount of acres you have cleaned? 

Mr. CONGER. No. Because not everything is about acres. Sometimes it is about groundwater. There are a whole variety of ways 

to measure, so we don’t normally think of it just in terms of acres. 

Mr. LATTA. Thank you, Mr. Chairman. My time has expired, and 

I yield back. 

Mr. SHIMKUS. The gentleman’s time has expired. 

The chair now recognizes the gentleman from Oregon, Mr. 

Schrader, for 5 minutes. 

Mr. SCHRADER. Thank you, Mr. Chairman. 

Mr. Stanislaus, I would like to kind of move—in our area, one 

of the biggest sites we have to deal with is the Portland Harbor as 

a Superfund site. And defense industry, big partner in contaminating that during World War II and now not so much of a partner 

in cleaning the thing up at the end of the day, for a lot of the reasons that have been mentioned here. 

But I am concerned about EPA’s approach to that harbor. You 

have a number of businesses that have stepped up, formed this 

Lower Willamette Group, trying to figure out a way to actually 

clean this up or be a partner in cleaning it up without the Federal 

Government, frankly, at this stage of the game. And I am worried 

about the science that is involved in this. 

And, particularly, I guess I wanted to know from you, is it common practice to a qualitative and not a quantitative analysis of the 

cleanup alternatives? 

Mr. STANISLAUS. Well, I think we have, in fact, done a quantitative analysis of—— 

Mr. SCHRADER. See, I would disagree with that. There is not a 

quantitative analysis done. In the report I saw on the feasibility 

study, there is no evaluation of what the concentrations of various 

contaminants would be, after different remedial actions have been 

taken. 

I think most of the businesses that are going to be funding this, 

anybody that is doing any scientific analysis, you are supposed to 

do a cost-effectiveness analysis. Once you have determined the 

health risk, then what are the most cost-effective ways to take care 

of this stuff? And that is not what I am seeing in the report. 

I guess I would like you to get back to me with that information, 

where there is a quantitative analysis of that. 

The other question I had is regarding natural recovery. Is it common for natural recovery to be ignored by EPA when they do remedial action analyses? 

Mr. STANISLAUS. No, if I can give a broad answer. So we have 

conducted a remedial investigation that identifies—— 

Mr. SCHRADER. I am asking about natural recovery. What—— 

Mr. STANISLAUS. Yes. So as part of the alternative analysis, we 

would look at the various alternatives, including that kind of alternative—— 

76 

Mr. SCHRADER. Well, I appreciate you saying that, because that 

is not what is done in this particular feasibility study on the Portland Harbor. The natural recovery aspects, the quantitative aspects 

of what natural recovery are, are not being included at all. 

As a matter of fact, you can’t, I would argue respectfully, scientifically evaluate how a particular remedial action, capping dredging, 

is going to work, what benefit you are going to get from that, unless you know what the natural recovery benefit is going forward. 

As a matter of fact, just up the river, at Willamette Falls, there 

is a site that was grossly contaminated. It was a paper mill. And 

environmental agencies have determined that it does not pose any 

real contamination risk because natural recovery has completely 

wiped that out. Admittedly, it is a higher-flowing river at that particular point. 

So I am not seeing that going forward. 

The other thing I am worried about is, in this particular case, is 

how they have evaluated these alternatives. Is it normal for EPA 

to assume that dredging is going to go on 24 hours a day, 6 days 

a week, in a water work window? Is that the normal way you 

would evaluate? 

Mr. STANISLAUS. Well, it would depend on the facts of the particular circumstance. So we evaluate alternatives, be it—— 

Mr. SCHRADER. Would you assume that the dredging operation 

would go 24 hours a day, 6 days a week, in a recovery action? 

Mr. STANISLAUS. Well, I can’t say a generalized rule. It would depend—— 

Mr. SCHRADER. I think most people—I apologize for interrupting 

you, but I would think most people would say that is unrealistic. 

That is not the way any operation works, at the end of the day. 

And what happens with that is then you are underestimating the 

costs of some particular remedial actions. And I see that in this 

particular feasibility study. I think that is unfair and unrealistic, 

and you end up skewing the results of your feasibility study and 

the effectiveness of different remedial actions when you do that. 

Question, also, on principal threat waste. How do you determine 

the levels of different contaminants so that they constitute a principal threat waste? What procedure do you use? 

Mr. STANISLAUS. Let me get back to you regarding that. But the 

whole purpose of the draft feasibility is actually to entertain—— 

Mr. SCHRADER. The reason I ask that particular question—again, 

sorry to interrupt; I only have a limited amount of time—is that, 

I think that is important. What we are seeing here now is that 

there are low and unprecedented levels, I would argue, of determining these principal threat waste levels in this feasibility study 

for the Portland Harbor, and, as a result, you are doing treatments 

in addition to removal, in addition to capping, I mean, without any 

analysis as to is that treatment of this so-called principal threat 

waste going to give you any additional benefit. 

Again, the science that I see EPA not using in this group, with 

this willing set of businesses wanting to step up and do the right 

thing without any Federal largesse, and they are being cast aside. 

I think it is a terrible reputation that the EPA is developing, unfortunately, in our region. 

77 

And it could drive the cost—we have heard costs of hundreds of 

millions of dollars. The whole defense industry, maybe a billion dollars a year. They are talking billions of dollars for this one little 

Superfund site. And I think that there are estimates by others that 

it could be in the millions to maybe hundreds of millions of dollars. 

So there is a big difference, respectfully, between what EPA is 

looking at and the assumptions they are using that their reasonable business and scientific experts would get to to do the same 

amount of cleanup at the end of the day. So I appreciate you getting back to me on some of that information. 

And I yield back. 

Mr. STANISLAUS. Yes, I will get back to you. And I can assure you 

that we have discussed the science with all the stakeholders. And, 

in fact, we really appreciate the responsible parties stepping up. 

From the very beginning of the process, we looked at the scope of 

the science, conducted the science in an open and inclusive way, 

and we will continue to do so. 

Mr. SHIMKUS. The gentleman’s time has expired. 

The chair now recognizes the gentleman from Ohio, Mr. Johnson, 

for 5 minutes. 

Mr. JOHNSON. Thank you, Mr. Chairman. 

And I want to thank the panel for being here. 

Mr. Stanislaus, I was thinking earlier, as we were talking about 

how many times you have testified, if this were baseball, your 

number of at-bats and your own base percentage would be one of 

the highest in the league. So I commend you for continuing to step 

into the batter’s box. I know these are tough issues. 

Mr. Whitney, I represent many of the hardworking people that 

are helping to clean up the former Portsmouth Gaseous Diffusion 

Plant in Piketon, Ohio, and many others who are dependent upon 

that work getting done so that they can reindustrialize that site 

and make it a productive, job-creating site for the people that live 

there. 

I am shocked that the Department of Energy has now extended 

the deadline or the timeline for completing that cleanup approximately another 30 years. It makes absolutely no sense to me. The 

people who the commitments were made to, many of them could 

possibly be dead by the time the Department of Energy gets done 

doing what they committed to do. 

And it is very unfortunate that, for the third year in a row, jobs 

are at risk because the administration has failed to request adequate funding to complete this work. The Ohio delegation has repeatedly urged the administration to present a fully funded, comprehensive plan for decontamination and decommissioning activities at the site. 

Unfortunately, financial instability continues year after year. 

Back in May, the House of Representatives approved full funding, 

$213 million, for D&D operations, which surpassed the administration’s request by $48 million, and yet we see this dragging-out process again. 

We are ready to work with the administration and you folks 

again this year on funding, but we got to have a willing partner 

here and a commitment on the part of DOE to move this project 

78 

forward and meet the commitment, stand up and honor the promises that were made to the people of southern Ohio. 

So, with that said, what are DOE’s plans to address this issue? 

Mr. WHITNEY. Thank you, sir. 

Yes, and we are committed to the cleanup of Portsmouth, and it 

is unfortunate that WARN notices had to be issued at the end of 

August. 

Our request for 2016 is actually a little bit more than the Presi- dent’s request for 2015 for Portsmouth, and it is about $227 million 

for 2016 in our request. 

Unfortunately, the request, as well as the House—even though 

the House mark was a very large increase over the President’s request—and the Senate mark did put us in a position where we had 

to provide funding guidance that was lower than the 2015 request. Now, as you know, sir, on top of the $227 million request, we 

were able to take advantage of barter of uranium, which probably 

the proceeds, depending on the price of uranium at the time, is another $160 million approximately. So that is almost a $400 million 

investment in the—— 

Mr. JOHNSON. I get that. I get that. But, see, the citizens of 

southern Ohio, they were not party to developing the formula that 

determined how this was going to be funded. They were the recipient of a promise by the Federal Government and the Department 

of Energy. I think the Department of Energy has a responsibility, 

as does Congress, to work together to figure out a formula. 

And I understand that the sale of uranium has caused a wrinkle, 

but we need to resolve the wrinkle and develop a new formula, if 

we have to, and not make it at the expense of the workers and the 

folks that live there. 

So, I would urge you to take back to your leadership, at least 

from my perspective—and I can’t speak for all of the Ohio delegation, but I feel very, very certain that they would agree—this is unacceptable, to think and ask the people of southern Ohio to wait 

another 30 years to trickle this process along. It is just not right. 

Mr. Conger, in your written testimony, you state that DOD 

works together with Federal and state environmental regulatory 

partners to prioritize sites for cleanup based on worst first. 

Would you please explain the process that DOD uses to determine which sites are the worst? 

Mr. CONGER. So, generally, it is a risk-based process that is looking at the risk to human health and the environment. 

Well, I say ‘‘generally.’’ I have heard the term ‘‘risk plus.’’ And 

what that means is there are other factors that we take into account, as well. If there is a low-risk site that happens to be collocated with a high-risk site, we might do them both because it is 

economical to do them both at the same time. So that low-risk site 

might be lumped in and done earlier. 

But, generally, as we rack and stack this list, it is based on risk 

to human health and the environment. 

Mr. JOHNSON. OK. 

Mr. SHIMKUS. The gentleman’s—— 

Mr. JOHNSON. Mr. Chairman, I have a lot more I could ask, and 

I appreciate the committee’s indulgence to ask that first question, 

but I yield back. 

79 

Mr. SHIMKUS. And the gentleman knows that you can submit 

questions for the record in written form. 

Mr. JOHNSON. And I will. 

Mr. SHIMKUS. Thank you. 

The chair now recognizes the gentlelady from Colorado, Ms. 

DeGette, for 5 minutes. 

Ms. DEGETTE. Thank you, Mr. Chairman. 

Thanks, everybody, for coming today. 

As you know, in Colorado, we not only have contaminated Federal munitions and chemical sites, but we also have legacy mines 

on Federal lands. And there are often questions of liability regarding the abandoned mine lands since many companies might have 

had those properties over the course of decades. 

Of course, a prime example of this is the Gold King Mine, which 

we saw this summer. And you all saw this on the national news. 

This is what the Gold King Mine looked—this is what the Animas 

River looked like. Why those people are kayaking there I don’t 

know. But the Animas River was orange as it flowed down through 

Durango and down into New Mexico, and Cement Creek was also 

turned orange. 

So this is kind of the backdrop for the questions that I am going 

to be asking today. 

I want to ask you, Mr. Stanislaus, if the EPA is going to be pursuing reimbursement from the companies that left these millions of 

gallons of contaminated water at Gold King Mine to pay for the remediation of the site. 

Mr. STANISLAUS. Yes. 

Ms. DEGETTE. That is good news to hear. 

I would like to know, if there were private owners, which there 

were, of that site and the adjoining mine, why was the EPA cleaning up the site in the first place? 

Mr. STANISLAUS. Because there was a risk identified by the State 

of Colorado and the stakeholders that risk be addressed immediately. Roughly about 330 million gallons on a yearly basis was 

going into the Animas River. 

Ms. DEGETTE. And that is before it all came—— 

Mr. STANISLAUS. That is right. 

Ms. DEGETTE [continuing]. Rushing out and turned the river orange. 

Now, that site was not listed on the Superfund National Priorities List, correct? 

Mr. STANISLAUS. That is right. 

Ms. DEGETTE. What the National Priorities List does, it targets 

the cleanup of sites without viable responsibility orders, and it puts 

it in priority for funding. Is that right? 

Mr. STANISLAUS. That is correct. It identifies those sites that 

have the most risk in the country. It also makes that site eligible 

for Superfund resources. 

Ms. DEGETTE. And do you think the Gold King Mine would be 

a candidate for the National Priorities List? 

Mr. STANISLAUS. Well, there have been discussions, and I was 

just in Silverton last week at the invitation of local stakeholders 

to continue that conversation. 

Ms. DEGETTE. So the decision has not yet been made? 

80 

Mr. STANISLAUS. No. We are continuing to have those conversations. 

Ms. DEGETTE. When do you think you will make that decision? 

Mr. STANISLAUS. Well, again, we are engaged in that conversation. There is also kind of a technical evaluation of data, so we are 

in the process of evaluating that right now—— 

Ms. DEGETTE. Right. So would that, like, 6 months? Twelve 

months? 

Mr. STANISLAUS. I will get back to you on the timeframe. 

Ms. DEGETTE. That would be really fabulous. And what would be 

even better is if we had a very short timeframe to get that on the 

list. 

There are thousands and thousands of mines, as all of you have 

said, that are similar to the Gold King Mine across the West. 

Mr. Gomez, in your testimony, you note that both the USDA and 

DOI have significant inventories of abandoned mines that could potentially pose threats to health and the environment. Do either of 

these agencies have a system for prioritizing their most contaminated mines? 

Mr. GOMEZ. Yes. They go through the process of identifying the 

mines, and they are making their own assessments of it. But we 

didn’t look specifically at that process. We were looking mainly at 

identification. Those are good questions that we can follow up with. 

Ms. DEGETTE. I would appreciate that, because it is my understanding that they actually don’t have a priority list, and that 

would be really helpful. 

Gold King is the perfect example of a mine where everybody 

knew it needed to be cleaned up. But I think everybody could now 

stipulate that, in hindsight, the preparation for the cleanup, the 

recognition of the seriousness of the problem was grossly underestimated. 

Now, based on GAO’s analysis of contaminated sites on USDA 

and DOI properties, do each of the agencies have sufficient environmental expertise of their own to plan and oversee cleanup of the 

sites? 

Mr. GOMEZ. So, for those cases that do end up on the National 

Priorities List, EPA does oversee those sites—— 

Ms. DEGETTE. Right. 

Mr. GOMEZ [continuing]. And so EPA does provide that expertise. 

Ms. DEGETTE. To USDA and DOI? 

Mr. GOMEZ. Do they have that expertise? 

Ms. DEGETTE. Right. 

Mr. GOMEZ. Again, we weren’t looking at the workforce of the 

agencies to see if they have the expertise or not. But, as I said, for 

those sites that end up on the National Priorities List, EPA is 

doing the oversight. 

Ms. DEGETTE. OK. 

Now, I want to ask you, Mr. Stanislaus, it is my understanding 

that USDA and DOI don’t want mines that were Superfund cleanup to be listed on the National Priorities List. Does that impede 

the EPA’s ability to oversee and ensure proper cleanup at the sites? 

Mr. STANISLAUS. Our only ability to oversee sites is for those 

sites that are on the National Priorities List. 

81 

Ms. DEGETTE. OK. So if they are not on that list, then we can’t 

clean them up. 

Mr. STANISLAUS. That is right. 

Ms. DEGETTE. So I guess, Mr. Gomez, I would like you to supplement your testimony to see what, in fact, the position of those two 

agencies is of putting their mine sites on that list. 

Mr. SHIMKUS. Would the gentlelady yield for a second? 

Ms. DEGETTE. I would be happy to. 

Mr. SHIMKUS. So we invited—— 

Ms. DEGETTE. I am out of time. 

Mr. SHIMKUS. That is right. I am the chairman. 

Ms. DEGETTE. Yes. Seize control. 

Mr. SHIMKUS. We invited Department of Interior to testify. They, 

in essence, said they wouldn’t. They did say they would submit a 

statement. They only sent it when we reminded them that they 

said they would send a statement. So maybe some followup on the 

Department of Interior might be appropriate. 

Ms. DEGETTE. Yes, Mr. Chairman, I think that is a great idea. 

Because if you can’t list these on the list, then the agency with the 

expertise to clean it up won’t be able to do it. 

Thank you. 

Mr. SHIMKUS. And maybe they will reconsider coming back next 

time we ask them. 

So thank you. 

Now I would like to recognize my colleague from North Carolina, 

Mr. Hudson, for 5 minutes. 

Mr. HUDSON. Thank you, Mr. Chairman. 

And I would like to thank the witnesses for being here today. 

Really appreciate your testimony. It has been very informative and 

helpful for me to understand this process. 

I would like to start with Mr. Conger. 

What percentage of DOD’s hazardous waste facilities have been 

identified on the Federal Facilities Hazardous Waste Compliance 

Docket as required in CERCLA? 

Mr. CONGER. So I can’t tell you what percentage of our sites are 

actually on the docket because we track all of them as a larger 

group. The 39,000 sites that I have talked about during my testimony include those on the docket, but we have far more sites than 

those that are on the docket. 

A couple years ago, we did a docket scrub. We went and looked 

at our database and EPA’s database, the docket, to make sure that 

everything that needed to be on the docket was on there. And so 

we have done that reconciliation. But I couldn’t tell you, out of all 

the sites we have, exactly how many are on the docket. 

Mr. HUDSON. Would you mind following up with us with that 

number? 

Mr. CONGER. Sure. 

Mr. HUDSON. I would appreciate it. 

What percentage of DOD sites that you have identified have the 

required preliminary assessments been completed on? 

Mr. CONGER. Well, out of the 39,000 sites that we have, I think 

only 4 percent of them are still at the preliminary assessment and 

site inspection phase. The breakout between PA and SI we can get 

82 

you, but it is—so I would say, by definition, it is less than 4 percent are still in that phase. 

Mr. HUDSON. Great. 

For those that you have completed the required assessment, have 

copies of those assessments and other relevant information been 

provided to the State and the EPA? 

Mr. CONGER. Absolutely. 

Mr. HUDSON. Great. 

What is the typical, on average, length of time it takes for DOD 

to complete one of these initial assessments? 

Mr. CONGER. So I actually pulled the data out of the database 

because I saw that question coming. We have an average of 1.6 

years for a preliminary assessment out of all the sites that we have 

cataloged. 

Mr. HUDSON. So you would disagree with the assessment from 

GAO that it takes 2 to 3 years typically for—— 

Mr. CONGER. It can. So that is an average, 1.6 years. There are 

sites that are longer, without a doubt. It depends on the complexity 

of the analysis that you are doing. So some are shorter, some are 

much shorter; some are longer. 

Mr. HUDSON. Gotcha. 

If Congress were to establish a deadline, as has been recommended, for completion of these assessments, would that help 

DOD complete these in a more timely fashion? Or do you think it 

is more just a factor of the complexity of—— 

Mr. CONGER. I think it is a factor of the complexity. I don’t have 

a lot of folks coming back to us and saying that we are dragging 

our heels. We work out these schedules with the regulators, and so 

I think everybody is comfortable with the pace at which we are 

doing the assessments. 

Mr. HUDSON. Well, thank you for that. 

Mr. CONGER. But if there are specific cases, we can look into it. 

Mr. HUDSON. Thank you. 

Mr. Whitney, I will sort of go down the same line of questioning 

with you. What percentage of DOE hazardous sites are actually on 

the list? 

Mr. WHITNEY. Yes, sir. I think it is a little easier for DOE because we do know the universe of our facilities, and, while the sites 

are large, the number of sites are not. And so all of our sites have 

been through that preliminary assessment process, the site evaluation process, and they either ended up on the National Priorities 

List or they did not. 

Mr. HUDSON. Great. 

Well, for those that have gone through and completed the assessments, have copies of those been passed on to the relevant agencies—state, EPA, others? 

Mr. WHITNEY. Yes, sir. 

Mr. HUDSON. Great. 

And how many of the sites that have been assessed required 

some level of cleanup? 

Mr. WHITNEY. Well, the 21 sites that were on the National Priorities List, all of those sites required some level of cleanup—has 11 

of those sites remaining. 

Mr. HUDSON. OK. I appreciate that. 

83 

Mr. Stanislaus, going back to the issue of abandoned mines on 

Federal properties, how does EPA oversee the cleanup of these if 

they are on Federal property? 

Mr. STANISLAUS. Only those sites that rise to the level of being 

Superfund sites. So we have 130 on the National Priorities List 

that are abandoned mine sites, but, clearly, there are a lot more, 

as other individuals talked about it. So we would only have oversight of just that small number. 

Mr. HUDSON. OK. Well, of those, does EPA have a sense of how 

much contaminated mine drainage discharges from these mines on 

a daily, weekly, monthly, yearly basis? 

Mr. STANISLAUS. I don’t have that information in front of me, but 

I can see what I can pull together. 

Mr. HUDSON. OK. Thank you. 

What steps do the various Federal agencies routinely take to prevent and stop these types of discharges? 

Mr. STANISLAUS. Yes, I really can’t speak for the other agencies. 

When we get involved, we would do what are called removal actions, which are shorter-term actions, to abate some of the most 

immediate risks and, when there are longer-term risks, looking at 

listing on the National Priorities List for a more permanent solution. 

Mr. HUDSON. Gotcha. 

What are the impacts on stream water quality from these discharges? 

Mr. STANISLAUS. Well, tremendous. In the Gold King Mine, about 

330 million gallons were being emitted into the Animas River on 

a yearly basis. Basically, for a 10-mile distance on the Animas 

River, you basically have severely degraded water quality. Basically, fish survival was seriously compromised. 

Mr. HUDSON. So who is legally responsible for cleaning up when 

you have these discharges on these sites that you have the jurisdiction over? 

Mr. STANISLAUS. Well, when we have jurisdiction over that, we 

oversee the work. Sometimes it is by responsible parties, sometimes through Superfund resources. And the complexity of these 

sites makes it quite challenging. 

Mr. HUDSON. So who is legally responsible? 

Mr. STANISLAUS. Oh, who is legally responsible? I am sorry. If 

there is a responsible party, meaning the owner or operator, that 

party would be responsible for doing the cleanup. 

Mr. HUDSON. Great. Thank you. 

And, Mr. Chairman, I believe I have exceeded my time. 

Mr. SHIMKUS. Your time has expired. 

Just a point of clarification. This Executive Order 12580 is an 

answer to why we have—and Mathy is talking about items on the 

National Priorities List, but there are many that aren’t on there. 

And then the question is, who is responsible for those? That is part 

of the hearing. 

Now I recognize the gentleman from Texas, Mr. Green. 

Mr. GREEN. Thank you, Mr. Chairman and Ranking Member, for 

holding the hearing on Superfund today. 

I represent a district in Houston, and, up until recent redistricting, my district bordered in east Harris County one of the more 

84 

significant Superfund sites, on the San Jacinto waste pits bordering our district. At that time, Congressman Poe had the site, 

but I got the downstream. 

And EPA was very quick in putting it on the Superfund site. The 

site has been polluted since the mid-1960s. It was a dumping 

ground for paper mill waste, and it was left undetected for over 40 

years. The local community is very concerned about the fears it 

may negatively be impacting human health and the environment. 

My questions are, Mr. Stanislaus, what opportunities will communities in east Harris County have to give input on the proposed 

cleanup plans? 

Mr. STANISLAUS. Opportunity throughout the process. 

Mr. GREEN. OK. 

Dioxins are the primary hazard at the waste pits, which were 

used during the paper production process 50 years ago. Mr. 

Stanislaus, has the EPA taken any action to limit the use of 

dioxins and similar dangerous chemicals in paper production? 

Mr. STANISLAUS. Limit the use of dioxin in paper? 

Mr. GREEN. Yes. 

Mr. STANISLAUS. Well, that is outside of my office. I will get back 

to you on that. 

Mr. GREEN. OK. 

Does the EPA have a timetable for when the feasibility study report would be released? 

Mr. STANISLAUS. Yes, I don’t have that timetable, but I should 

note that we put in place certain measures to abate the release of 

dioxin from the site itself. 

Mr. GREEN. And I have been there; it is encapsulating. And what 

happened, because of subsidence in our area over the last 50 years, 

those containment facilities may have been great in 1965, but the 

subsidence, we actually have some of those containment facilities 

that are below water level in the San Jacinto River. And, so far, 

there is different evidence that the encapping of it is working. I 

think the last test I showed, it is doing well. 

What are the primary factors for EPA in its determination for 

the cleanup of waste? 

Mr. STANISLAUS. The exposure and the various options to address 

that exposure. In some cases, we would completely clean it up. In 

other cases, they put a barrier to prevent further—it all depends 

on the factors at the site. 

Mr. GREEN. Is the EPA taking under consideration the vulnerability? The site actually can be flooded because it is a tidal river, 

but, over my lifetime, we have also had floods coming down the 

river, and so it can dislodge it. Is that part of the EPA study also, 

the danger of a hurricane coming in or floodings upstream? 

Mr. STANISLAUS. Well, typically, we would look at all those factors, but let me get back to you specifically on how we would consider that at this site. 

Mr. GREEN. OK. I appreciate it. The site is now in Congressman 

Babin’s district. It is a neighbor of mine. And we are getting him 

the information that we have been working on for a number of 

years. 

These are questions for all the agencies on the panel. 

85 

How does your agency ensure that states and local communities 

are involved in every stage of the cleanup under your control? 

Mr. CONGER. I can start. 

We work closely with the state regulators. As Mathy had pointed 

out, a lot of our sites are overseen directly by the state regulators, 

so we work with them on remedies and on timetables. 

We also have restoration advisory boards that we set up with 

local communities to make sure that everything is transparent so 

that they know what is going on. 

It is very important for us to work with local and state stakeholders. 

Mr. WHITNEY. Yes, and we have a variety of avenues to achieve 

that type of involvement, as well, first and foremost, the states of 

course being regulators on the cleanup that we do at our sites. But 

that relationship with the local communities and other folks in the 

state is also very important to us, and we have site-specific advisory boards made up of citizens of the surrounding communities 

around our sites. 

We also provide grants to many organizations, such as ECOS, 

the Environmental Council of States, such as National Governors 

Association, the State and Tribal Government Working Group—— 

Mr. GREEN. I only have a few seconds. I need to get one more 

question in, though. 

If a state preferred one cleanup remedy over another, how would 

the preference influence the decision over the cleanups? Would the 

Federal Government defer to the state agency? 

Mr. WHITNEY. It truly is a tri-party. For us, it is tri-party. 

Mr. GREEN. So it is a cooperative issue? 

Mr. WHITNEY. Yes, sir. 

Mr. GREEN. OK. 

I appreciate it, Mr. Chairman. Thank you. 

Mr. SHIMKUS. Let me just chime in with your last 10 seconds. 

I think what we have heard is everyone views the States as a 

partner, but no one is required to treat the State as a partner. And 

that is part of what our hearing is trying to get to. 

So, with that, now we would like to welcome a member of the full 

committee, not on the subcommittee. We welcome here to the subcommittee Mr. Luj AE1an from New Mexico. 

And you are recognized for 5 minutes. 

Mr. LUJ AE1AN. Thank you, Mr. Chairman, and thank the ranking member for holding this important hearing today. 

As you all know, where this breach ran into was in the Third 

Congressional District of New Mexico, into San Juan County, into 

the Animas River, which flows from Colorado to New Mexico, as 

well as to the Navajo Nation and to our brothers and sisters out 

in Utah and Arizona, as well as Colorado, that were all impacted. 

One of the concerns that I had as we began to learn about this 

issue, it wasn’t through an alert from law enforcement officials, 

from officials that work for the Federal agencies; it was through a 

news feed, may have even been a Twitter feed, that our office was 

alerted to. 

And so we need to figure this out, to make sure that when there 

are disasters like this that are created, created by people as opVerDate Nov 24 2008 11:10 Jan 21, 2016 Jkt 037690 PO 00000 Frm 00089 Fmt 6633 Sfmt 6633 F:\MY DOCS\HEARINGS 114\114-73 CHRIS
86 

posed to a natural disaster, that everyone is alerted promptly and 

timely. 

Since this incident, it appears that the State of Colorado is working to improve their communication systems to local governments, 

but I am not certain that we have seen what we are going to do 

with the EPA and, for that matter, for every Federal agency that 

there could be a system like this that sadly could hurt communities 

with a mistake that is made. 

So, Mr. Stanislaus, according to an EPA memorandum, the release occurred on August 5 at 10:51 a.m. However, EPA headquarters, Region 6, and Region 9 were not notified until 11 a.m. 

The next morning. I just shared that my office found out through 

news accounts. San Juan County officials, Navajo Nation leaders, 

and the New Mexico Environment Department were not notified. 

They found out the same way that we did, is my understanding. 

So that is unacceptable, and we need to fix this and learn from 

this. So what are we doing to improve notification procedures down 

to downstream communities as well as impacted communities? 

One of the suggestions that I shared with Administrator McCarthy yesterday was looking to see what we could do to piggyback off 

of the AMBER Alert system for abducted children or to the national natural disaster alert system and weather disaster system, 

which notifies everyone with their mobile phones, on billboards, as 

everything happens. There is no reason that when something like 

this that tells people you can’t drink water, you can’t get in the 

water, you can’t water your animals, you can’t irrigate, that we 

can’t use something like this. 

So can you share a little bit with what we can do and how we 

might be able to work with you, with the committee, to see what 

we could do to work with a system like that for alerts in the future? 

Mr. STANISLAUS. Sure. Immediately after the event, I issued a directive to all the regions to work with states and local communities 

to make sure the notification is broad. 

So we currently have a notification system in place. And in the 

State of Colorado we had a plan in place where the State of Colorado took leadership of notifying. They in fact notified Durango and 

other folks, and those decisions were made to close off the water 

intakes. 

And you are entirely correct that the notification for New Mexico, 

for the Navajo Nation did not occur simultaneously, and we agree 

we need to do a better job of that. 

Mr. LUJ AE1AN. It didn’t occur for days. 

Mr. STANISLAUS. It occurred the next day. Yes. 

And just to be clear, all the notification occurred before the spill 

impacted any of those areas. In fact, we were able to do pre-incident sampling before any of the impact of the spill occurred in any 

of those areas. 

Mr. LUJ AE1AN. Ute Mountain tribal officials are the ones that 

reached out to their neighbors in San Juan County to say, this spill 

is passing us, you need to get ready for it, it is coming our way. 

That wasn’t on the alert system that was put in place. That was 

one group of neighbors caring about another group of neighbors 

and doing their due diligence. 

87 

This was a dismal failure from a communication perspective, and 

we have to fix it. I hope that the urgency for this—not just here 

but in any other part of the country. We need to just get this right 

so that people know what is coming their way. 

The other urgency that I would suggest is we need to make sure 

that we are working with all of the impacted communities to the 

utmost degree: both of the Ute tribes that were impacted, the Navajo Nation, the County of San Juan in New Mexico, the State of 

New Mexico, as well as our brothers and sisters in the other impacted States. 

There has been a frustration by the leadership of the Navajo Nation, and we need to make sure that we are working closely with 

them, that someone is appointed to work directly with them, 

whether it is from Region 9 or from headquarters, so we can make 

sure that all of their concerns are addressed. 

One of the other concerns that I have, Mr. Chairman, is, it is my 

understanding that the EPA’s work order at the Gold King Mine 

site called for the construction of a holding pond to capture and 

treat contaminated water but that the pond was not completed before the accident. In addition, EPA Deputy Administrator Meiburg 

said that provisions for a worst-case scenario were not included in 

the work plan. 

I think it is important that we understand that, that we make 

sure that anytime work will be done in the future that we get to 

the bottom of that. 

And then lastly, Mr. Chairman, as we get an assessment of all 

of the abandoned mines that we have in the United States and especially those that are in a condition like the Gold King Mine, 

where a breach or an accident can impact the water supply for millions of people in surrounding communities, we need to have a real 

conversation in the Congress to make sure that we are working to 

fix this. 

Because this devastated not just the irrigators and water users 

in the district that I represent and in Colorado but entire water 

drinking supplies in the States of Nevada and Arizona that could 

be impacted depending on the kind of a breach that we see. 

So just, Mr. Chairman, I look forward to working with you. 

Thank you for the time today. And I look forward to submitting 

some additional questions to the record and getting some responses. 

Thank you, sir. 

Mr. STANISLAUS. I would just add, I share those concerns. And 

we did an internal review, and the pond, in fact, was constructed, 

from my internal review team. But again, we were there because 

of the very risk that was identified in the work plan, that the State 

of Colorado and local stakeholders identified that risk. That is the 

reason that EPA was brought in to address that risk. 

Mr. LUJ AE1AN. But, Mr. Chairman, if I may just there, if the 

pond was built, why didn’t it work? Something didn’t work. With 

the amount of stuff that came out of that, which was originally estimated at 1 million gallons and then it turned out to be 3 million 

gallons, someone didn’t do their job. If something was built, then 

it wasn’t built the right way, because the breach still went and all 

this garbage still went into the river. 

88 

So those are questions that we do need to get to the bottom of. 

If something was constructed, clearly it did not meet the means of 

what should have been done with an assessment of what was being 

held behind there. It didn’t work. So, according to that mitigation 

plan, something needs to get better here, and that is what we are 

just trying to get to the bottom of. 

Thank you, Mr. Chairman. 

Mr. SHIMKUS. The gentleman’s time has expired. And we thank 

him for his attendance, look forward to working with him. 

Again, the open question submissions for the record for about 10 

business days, if you could get back to us. And I think there will 

probably be some followups. 

We appreciate it. We have a ways to go. And I do want to encourage you to stay tuned for the second panel, because I do think 

there is a—states are, in many cases, good partners and work well, 

but there are some concerns, as I think we will hear in the next 

panel. 

So I appreciate it. And, with that, we will recess this hearing for 

the second panel next week. 

[Whereupon, at 10:42 a.m., the subcommittee was adjourned.] 

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(149) 

OVERSIGHT OF FEDERAL FACILITY CLEANUP 

UNDER CERCLA, DAY 2 

WEDNESDAY, SEPTEMBER 16, 2015 

HOUSE OF REPRESENTATIVES, 

SUBCOMMITTEE ON ENVIRONMENT AND THE ECONOMY, 

COMMITTEE ON ENERGY AND COMMERCE

Washington, DC. 

The subcommittee met, pursuant to call, at 4:04 p.m., in room 

2322, Rayburn House Office Building, Hon. John Shimkus, (chairman of the subcommittee) presiding. 

Present: Representatives Shimkus, Harper, Pitts, Murphy, Latta, 

McKinley, Bucshon, Tonko, and Pallone (ex officio). 

Staff Present: Will Batson, Legislative Clerk; David McCarthy, 

Chief Counsel, Environment and Economy; Tina Richards, Counsel, 

Environment; Chris Santini, Policy Coordinator, O&I; Chris Sarley, 

Policy Coordinator, Environment and Economy; Dan Schneider, 

Press Secretary; Dylan Vorbach, Staff Assistant; Jacqueline Cohen, 

Minority Senior Counsel; and Alexander Ratner, Minority Policy 

Analyst. 

Mr. SHIMKUS. We are going to call the hearing back to order. 

This is the second day and the second panel of a hearing that we 

started on Friday. 

We are glad to have you here. So all the opening statements 

have been done, so you don’t have to listen to that. 

I will introduce you individually. You will have 5 minutes for 

your opening statement, and then your official statement is filed in 

the record already. And then we will go to questions. So thanks for 

coming. 

OK. So first we have Ms. Elizabeth Dieck, director of environmental affairs for the South Carolina Department of Health and 

Environmental Control, on behalf of ECOS, Environmental Council 

of the States, who have become good friends of mine. 

And we are glad that you are here. Welcome. You are recognized 

for 5 minutes. 

150 

STATEMENTS OF ELIZABETH DIECK, DIRECTOR OF ENVIRONMENTAL AFFAIRS, SOUTH CAROLINA DEPARTMENT OF 

HEALTH AND ENVIRONMENTAL CONTROL, ON BEHALF OF 

THE ENVIRONMENTAL COUNCIL OF THE STATES; BONNIE 

BUTHKER, CHIEF SOUTHWEST DISTRICT OFFICE, OHIO EPA, 

ON BEHALF OF THE ASSOCIATION OF STATE AND TERRITORIAL SOLID WASTE MANAGEMENT OFFICIALS; AND MICHAEL HOULEMARD, JR., EXECUTIVE OFFICER, FORT ORD 

REUSE AUTHORITY 

STATEMENT OF ELIZABETH DIECK 

Ms. DIECK. Thank you. 

Chairman Shimkus, Ranking Member Tonko, and members of 

the subcommittee, good afternoon. My name is Elizabeth Dieck, 

and I am here today in my capacity as secretary/treasurer of 

ECOS, whose members are the leaders of the state and territorial 

environmental protection agencies. I serve as the director of environmental affairs for the South Carolina Department of Health and 

Environmental Control. 

I appreciate the opportunity to share with you the states’ views 

on the progress of cleanup of contaminated Federal facilities and 

what solutions may help address the related challenges. 

ECOS commends the subcommittee for holding these hearings on 

the state of Federal facility cleanups in our Nation. Your attention 

to these sites is relevant to nearly every state and territory in our 

Nation where contaminated sites exist on lands managed by Federal agencies such as the U.S. Department of Defense, Department 

of Energy, Department of Agriculture, and the Department of the 

Interior. 

Your oversight of these cleanups, the resources being devoted to 

them, and the legislative actions that can be taken to advance 

cleanup progress is critical, as all Americans have a collective interest in seeing the hundreds of millions of dollars we allocate to 

these sites annually yield the most effective results. 

State environmental regulators are involved in every stage of the 

cleanup process, from identifying and reporting sites to staffing and 

overseeing cleanup efforts. We are on the front lines of answering 

questions from our citizens about the risks these sites may pose to 

their health and welfare, the scope of the contamination, the status 

of the cleanup progress, and the management of waste streams 

from building debris to more hazardous waste. 

We share with you and our Federal partners a priority interest 

in responding to these complex sites as expeditiously as possible 

and, when we can, returning them to productive use. 

I would first like to highlight for you where states have seen an 

improvement by Federal agencies in site remediation progress and 

in maintaining communication with us during the remediation 

process. This progress is due not only to thoughtful process improvements within the agencies but also in response to your oversight and legislation which passed the House last Congress and a 

series of GAO reports calling into question whether the Federal 

Government is moving expeditiously and with sufficient resources 

to achieve the needed results at these sites. 

151 

It is important to know that the creation of state-Federal groups 

has allowed states and DOD to work towards mutually acceptable 

cleanup solutions. In addition to these DOD sites, states have 

played a major role, working with DOE, in the cleanup of heavily 

contaminated sites affected by the nuclear weapons complex. States 

work closely with DOE and U.S. EPA to eliminate risks posed by 

these sites and oversee the cleanup of sites within the complex 

through Federal facility agreements, permits, and consent orders. 

Collaboration between the states and Federal agencies has resulted in significant financial savings from reduced future maintenance costs that can be put towards further cleanup of sites within 

the complex. 

ECOS commends Federal agencies on progress. However, we are 

concerned that there are instances where the interests of the states 

are not being considered as thoughtfully as needed. We have three 

overarching concerns. 

First, the state voice in cleanup decision-making should be further strengthened. 

Where States have clear regulatory and enforcement authority 

under legislation, much progress has been made at DOD and DOE 

sites across the Nation, as Mr. Whitney and Mr. Conger have testified this past week. States are concerned, however, that assertions 

of sovereign immunity and CERCLA-led agency authority under 

Executive Order 12580 by Federal agencies have led to inappropriate or inconsistent interpretations of state law and have not 

supported cleanup to the same standards as private parties. This 

hampers states’ abilities to oversee effective cleanup efforts and be 

accountable to their citizens. 

We encourage Congress to implement legislation that will acknowledge state authority and regulatory responsibility for oversight of removal and cleanup actions at current and formerly 

owned or operated Federal facilities and fully recognize states’ regulatory roles at Federal facilities. There is no reason for Federal 

agency environmental cleanup activities to be subject to less oversight than private parties. 

Secondly, states frequently see the Federal agencies unilaterally 

changing site cleanup schedules and goals, pushing ultimate completion out by years and sometimes decades and compromising the 

sites’ ultimate usability. Federal agencies effectively change cleanup schedules by failing to seek or allocate sufficient funding for 

their cleanup commitments. 

When a Federal agency unilaterally changes the terms of a 

cleanup by extending a deadline or changing other goals, the trustbased relationship breaks down, and it can lead to tension, and 

then it can lead to costly litigation, and that takes away from 

cleanup efforts. Federal agencies should consult meaningfully with 

states before seeking to change schedules or cleanup goals. 

Third, we are concerned that the available budget determines the 

remedial approach at some sites, meaning we may not be implementing the most effective and appropriate cleanup approach at a 

given site. Due to the complexity of the contamination of these sites 

and the proximity of many of them to communities, states recommend that Federal agencies, in consultation with the states, determine the most appropriate remedy and then work together to 

152 

pursue sufficient and stable funding solutions to implement that 

remedy. Transparent statements about the actual funding necessary to achieve results are imperative. 

Mr. Chairman and members of the subcommittee, I hope that my 

testimony today sheds some light both on the progress that has 

been made as well as additional areas that are in need of attention 

in the area of Federal facilities. I look forward to answering any 

questions you may have. 

[The prepared statement of Ms. Dieck follows:] 

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Mr. SHIMKUS. Thank you very much. Great to have you. 

And now I would like to turn to Ms. Bonnie Buthker, chief of 

Southwest District Office for the Ohio Environmental Protection 

Agency, on behalf of ASTSWMO. 

You are recognized for 5 minutes. Welcome. 

STATEMENT OF BONNIE BUTHKER 

Ms. BUTHKER. Thank you. 

Good afternoon, Chairman Shimkus, Ranking Member Tonko, 

and members of the subcommittee. I thank you for the opportunity 

to be here today to represent the Association of State and Territorial Solid Waste Management Officials and provide testimony. 

Our membership includes managers from the state environmental protection programs, including those responsible for overseeing the restoration and reuse of current and former Federal facilities. While Ohio EPA is a member of ASTSWMO and I work for 

Ohio EPA, today I am here representing ASTSWMO. 

While states do not assume primary CERCLA authority, we do 

play a role in implementation. States share a common goal with 

the Federal Government in ensuring that risks to human health 

and the environment are appropriately addressed. Like U.S. EPA’s 

in NPL Federal facilities, the states’ role is to ensure that remedies 

implemented will be protective of human health and the environment and in compliance with Federal and state law. 

While states try to work in partnership with both the Federal 

agencies and U.S. EPA, there are times when we disagree on what 

cleanup standards should be used and what remedies should be implemented. For these partnerships to work, all parties must focus 

on the technical and practical issues rather than focusing on the 

legal authorities, including sovereign immunity. Discussions involving legal authorities lead to protracted posturing, no-win situations, and delayed investigation and cleanup of these facilities. 

ASTSWMO has consistently supported any mechanism that encourages greater state collaboration with our Federal partners 

while ensuring that our voice and opinions are not diminished. 

ASTSWMO and our members actively engage with representatives 

of the U.S. EPA, DOD, DOE, and Federal land management agencies on national policy issues. 

ASTSWMO has had a long history of working collaboratively 

with DOD that began in the 1990s. In recent years, DOD and the 

military components have worked closely with ASTSWMO and the 

states to effectively resolve issues concerning the investigation and 

remediation of their current and former facilities. 

Since 2008, DOD and the military components have formed three 

different committees with states and ASTSWMO to resolve difficult 

challenges that were ongoing problems for several years. All three 

committees provide for collaboration among States and Federal 

agencies on several challenging cleanup issues, including remediation technologies and interim risk management, which can be especially challenging on property no longer owned by DOD. 

ASTSWMO continues to support legislation that clarifies that 

Federal agencies, like private companies, are subject to appropriate 

state regulations. While ASTSWMO appreciates the leadership 

DOD has shown in recent years by focusing on resolving issues 

167 

with states versus their legal authorities, this has not always been 

the case. 

Throughout the years, states have had several experiences with 

Federal agencies being unwilling to ensure their investigation and 

cleanups were done in accordance with state regulations. When 

states tried to use their authorities to compel Federal agencies to 

comply with these laws, Federal agencies invoked sovereign immunity in an attempt to prevent state oversight. 

Because of this, ASTSWMO has had longstanding policy positions opposing the assertion of sovereign immunity by Federal 

agencies. These positions have not changed over time, because our 

members continue to have experiences where Federal agencies use 

sovereign immunity to avoid compliance with state requirements. 

These experiences involve all Federal agencies, including DOD, the 

Department of Interior, and the Department of Agriculture. 

For example, in 2013, ASTSWMO did a survey of state and Federal facility managers asking if they recently experienced Federal 

agencies’ invoking sovereign immunity during the application, implementation, and enforcement of CERCLA or state regulations. Of 

the 19 states that responded, the states listed 12 cases where they 

had had such experiences. 

And though Federal agencies have accomplished a great deal of 

cleanup at their facilities over the last 20 years, there are still difficult issues left to address, including complicated groundwater contamination, emerging contaminants unique to Federal facilities, 

and sites contaminated with munitions. Sovereign immunity could 

still be a barrier to states in ensuring compliance with state requirements and Federal agency decisions concerning such issues. 

States need funding so that they can provide necessary resources 

to be engaged in Federal facility investigations and cleanups. Both 

DOD and DOE have programs that provide funding to states for 

their involvement in the investigation and cleanup of their facilities. These programs have provided numerous benefits to both 

these agencies and the states, including cost savings, reduced litigation, expedited cleanup, and increased public trust in their investigations and cleanups. ASTSWMO, therefore, supports legislation 

that requires Federal agencies to reimburse states for costs associated with state involvement and oversight. 

Thank you for this opportunity to offer testimony, and I would 

be pleased to answer any questions you may have. 

[The prepared statement of Ms. Buthker follows:] 

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Mr. SHIMKUS. Thank you very much. 

And, finally, I will turn to Mr. Michael Houlemard, executive officer of Fort Ord Reuse Authority. 

And before I ask him to begin, I think the minority staff is pretty 

smart or they got lucky. The Monterey area and Fort Ord is my 

last duty station. So I served there when it was a jewel. And there 

are great locations there—beautiful golf course, new housing. I was 

just there a couple years ago—and University of California Monterey, which is very exciting. But obviously, there is a lot of the 

post that still has issues and challenges. 

So we are happy to have you here. Monterey is the second-mostbeautiful spot on the face of the Earth, right behind the 15th District of Illinois. And so we are glad to have you here. 

STATEMENT OF MICHAEL HOULEMARD, JR. 

Mr. HOULEMARD. Chairman Shimkus, Ranking Member Tonko, 

all distinguished members of the subcommittee, I want to just 

thank you for that acknowledgement of how great Monterey is, but 

it is no better than Rantoul in Illinois. 

I would also like to note that, as the executive officer at the Fort 

Ord Reuse Authority, I have spent quite a bit of my last 20 years 

spending many hours back here in Washington, D.C., representing 

communities across the Nation. So I want to thank the committee 

for its decision that it would include communities as part of the 

testimony on this very important committee. 

I am honored to have spent those last 25 years of my career serving military communities. I served some of that time working with 

the Association of Defense Communities that has a Defense Communities Caucus support effort. And I know that it is important for 

all of you to recognize that the communities that have served this 

Nation by supporting military services have done it in a way that 

helps the Department of Defense increase its mission-effectiveness. 

I also want to take the time to acknowledge our colleagues in 

U.S. EPA that are tasked with the regulatory oversight that is required to address the many environmental conditions between military communities and their adjacent communities, whether they be 

active installations or closing or closed installations. 

Today I want to focus my comments on the Superfund relationship with military services and defense communities, which is at 

least an uphill battle given the limited resources and the potential 

for hazards, both recognized and emerging, to be present. 

I also, Mr. Chairman and members of the committee, assert that 

our defense in part relies on how DOD addresses the sensitive mix 

of downsizing and the burden of excess infrastructure in the future 

and its relationship to the ongoing environmental hazards that remain in many of our military installations. Our communities suffer 

from the many technical, regulatory, processing, resource, and 

other delays that affect our ability to have access to property in a 

safe and reliable way. 

And many communities across this Nation are provided partial 

or inadequate information about Federal or other agency contamination that will affect their exposure to potential catastrophic hazards. This is particularly acute with recent past property transfers 

from the Department of Defense to local communities after 

175 

downsizing and closing former properties and then abandoning 

them to local jurisdictions. 

Remedial actions are often governed under the resource application decisions by and within the primary polluter’s oversight. Those 

decisions are often determined to be under the regulatory control 

of the Antideficiency Act, even when DOD has determined them to 

be exempt from such limitations. In those cases, communities have 

to wait for the annual funding process, which often causes significant delays in mobilizing and demobilizing. In our case, we are 

looking at the possibility of another 7 to 10 years before getting full 

access to the Fort Ord National Monument for an installation that 

was announced for closure 25 years ago. 

Another item is, as a Superfund site due to subsurface remediation, we at the former Fort Ord are ineligible for funding resources and other support under brownfields that would greatly assist us in addressing these aboveground issues. We think that 

there is a conflict of the regulatory controls here and that Congress 

should look at that and understand the potential for helping communities. We now have projects that cannot survive even in the 

great Monterey Bay, with our underlying land value, because we 

are left with the burden of buildings that are contaminated, with 

considerable cost putting them under water economically. 

Another critical item—and this is not brand-new; I guess you 

have heard this repeatedly—but the long-term stewardship of properties that is being transferred from Federal hands to local communities is critical. In many, if not nearly every case nationwide, Federal agencies are motivated to complete cleanups that enable property transfers in a way that reduces long-term Federal obligations. 

And while that may be a great goal for the Federal agencies, it is 

real important for the communities to be able to have an economic 

recovery, which demands access to property and ability to manage 

the long-term stewardship. 

This is especially important that that long-term burden be provided in a way that is a part of a remedial action and assessed economically in the remedial action what is being left to local communities. 

How such responsibility transference is assessed is crucial under 

CERCLA. This is especially key as the EPA addresses emerging 

contaminants such as PFCs that may exist on properties already 

transferred but yet there is no current way for the Federal agency 

to return to take care of those problems. 

Five on my item list—I just finished the fourth—community 

voices are often not heard. It is my assertion that communities are 

often only provided the minimum opportunity to participate in the 

process, including CERCLA. Superfund regulatory requirements 

read like a checkoff list to meet certain public comment requirements, but those regulations fall woefully short of meeting the intent for engaging the community in the process. 

A true engagement process goes well beyond these citizen participation minimums, community involvement review timelines, or 

news publication requirements to encourage—that would allow for 

encouraging active engagement in communities in the forms and 

methods that solicit input in the way that communities interact. 

176 

These technical assistance programs that are currently being 

funded must be proactive and not responsive to just those few communities that respond. Further, the EPA and other agencies need 

to help communities build capacity so that they strengthen their 

local knowledge base and that their comments are of value. 

I assert that the community engagement process is a full-contact 

sport, and it has to be done in the full spectrum of what 21st-century communications are all about. 

Ultimately, I would like to add that this is a resource issue, as 

well. And given the limits of certain Federal support, U.S. EPA 

must be given the combination of decisionmaking power that allows 

flexibility between programs and supplemental authority that allows for an increase in the interface with states and local communities. 

This collaborative effort would greatly enhance our interactions 

over the serial reviews that we have today. In fact, we are under 

a process of collaboration that has been extremely effective at Fort 

Ord that brings all the parties to the table in a concurrent manner 

rather than in a serial fashion. 

So I assert that we have learned quite a few things: that it is 

difficult for citizenry to get up to speed with this complex, sophisticated effort; and it is important that we have property transfer and 

project delivery delays that are collaborative and use 21st-century 

communications. I ask that we eliminate contravening regulatory 

issues through focused oversight. And that is essential to community understanding. That also leads to community voices being 

heard that may not be heard today. 

And, finally, we must move to address the long-term stewardship 

issues that are current a major potential unfunded mandate to 

local communities and states. 

Chairman Shimkus, thank you for the communities’ having a 

voice here at the table. 

[The prepared statement of Mr. Houlemard follows:] 

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Mr. SHIMKUS. You are welcome, and it is great to have you. 

So I will now open it up for the line of questions, and I will recognize myself, 5 minutes for the first round. 

And I asked this line of questions to our Federal witnesses last 

week, but I am guessing that I will hear different responses from 

the witnesses on the panel. I did talk to them and say please tune 

in to hear your voices when I spoke to them a couple times on Friday. 

My question stems from the issue of the delegation of the present 

CERCLA authority under Executive Order 12580 to other Federal 

agencies who are also potential responsible parties. And it is really 

the same question to all of you, and we will just go first to Ms. 

Dieck. 

Is there a conflict when a Federal agency is a potential responsible party because it caused the contamination or owns the contaminated property but the same agency is also the lead agency responsible for making cleanup decisions? Why or why not? 

Ms. DIECK. I would have to say there is a conflict. If you have 

the Federal agency that has created the contamination is responsible for the cleanup and is also responsible for selecting the remedial action, that is an inherent conflict. 

It has to be something that is coordinated clearly with the states 

so that our voice is heard and so that there is an understanding 

of what the appropriate remedial action would be so that the land 

can be protected and the proper protective measures are in place. 

Mr. SHIMKUS. Ms. Buthker, same question. And I can restate it 

if you need it, but—— 

Ms. BUTHKER. No. I would say there is definitely a conflict. Because the Federal agencies, they are trying to look at the funding 

that they have and trying to do as much as they possibly can, and 

if they can put in a cheaper remedy at a facility than what maybe 

the state wants or the community wants, then they can use that 

money somewhere else. And so, definitely, there is a conflict. 

Mr. SHIMKUS. Mr. Houlemard? 

Mr. HOULEMARD. Thank you, Chair. I concur with my colleagues. 

I would add a quick note that the former Fort Ord, we had an 

experience that the United States Army, which serves as the president for the cleanup at the former Fort Ord—we elected to do our 

own cleanup under contract. And during the course of that process, 

we have attempted to be collaborative, but it breaks down at certain points. 

The United States Army had a certain concern about what the 

language was going to look like that directly related to the return 

of the United States Army to cover under 120(h). EPA had a difficult language issue. It took over 18 months to get that resolved, 

and we wound up with delays. Similar things have happened in 

Kansas and in Texas on similar kind of, but different, issues that 

create the delays. 

So I concur with my colleagues. 

Mr. SHIMKUS. Thank you very much. 

And a followup to Ms. Dieck: Your written testimony acknowledges that States are concerned that when Federal agencies assert 

sovereign immunity and when they assert a CERCLA lead agency 

authority under Executive Order 12580 that this has led to, in 

186 

quotations here, ‘‘inappropriate or inconsistent interpretations of 

state law that have not supported cleanup to the same standards 

as private parties,’’ close quote. 

Can you explain what you mean by this? 

Ms. DIECK. Sure. 

Assertion of sovereign immunity or lead agency authority enables 

Federal agencies to bypass or partially meet state requirements 

that normally would apply to private parties. For example, if the 

lead agency does not deem that a state requirement is applicable, 

relevant, or appropriate, then that agency does not have to meet 

that particular requirement. So that is problematic. 

Mr. SHIMKUS. And, in my final time, in this debate of cleanup, 

the cost, the agency that could have created the problem is directed 

to clean up, but of course they do it based upon the money available. 

If you were to object—first of all, do you have a right to object? 

And then is that where the claim of sovereign immunity comes in, 

saying, well, thank you, but we can do whatever we want anyway? 

Ms. DIECK. Certainly that would be the case for sites on the NPL 

list. And, generally, the way they are reading it with the Executive 

Order 12580 and the language in CERCLA, that is the way that 

it is being applied, and that is problematic. 

Mr. SHIMKUS. Anyone else have—— 

Ms. BUTHKER. I would say, definitely what you see happening is, 

because of the cost issue, a lot of times Federal facilities will look 

at the state requirements and say, well, if I can whittle down these 

state requirements that I have to meet, then I might be able to implement a cheaper remedy. 

So that definitely has that impact where you see that, and because they are lead agency and they are the final say on how that 

remedy is going to be implemented and what happens, then yes, 

the state can try to challenge that, but then that is when you have 

a situation with sovereign immunity. If the state says, well, I am 

going to sue you because you are not doing something consistent 

with what we would want you to do in this particular instance, 

they are like, OK, fine, sue me, but we have sovereign immunity. 

Mr. SHIMKUS. And you would agree, Mr. Houlemard? 

Mr. HOULEMARD. Yes, I would. I think the collaborative process 

is going to serve us all a lot better. In the case where we have— 

our experiences, the collaborative process treats the remediation as 

what is most effective rather than what is most cost-effective. 

Mr. SHIMKUS. Thank you. And I apologize for going over. 

Now the chair recognizes the ranking member of the subcommittee, Mr. Tonko, for 5 minutes. 

Mr. TONKO. Thank you, Mr. Chair. And thank you for convening 

this panel today so that we can hear from states and communities 

affected by the Superfund cleanups. 

At last week’s panel, we heard that a lot of progress has been 

made to address dangerous contamination at Federal facilities 

owned by the Department of Defense and Department of Energy. 

So I would like to start by asking the panel, have you seen that 

progress in your states and communities? And what do these cleanups mean for communities around those sites? 

Ms. Dieck, if you want to start. 

187 

Ms. DIECK. Sure. 

I would start by saying we do have a collaborative—a strong 

working relationship with DOE, and we have seen some tremendous successes at SRS. I think that the problems arise when, as 

I think I mentioned earlier in my testimony, there can be unilateral decisions that are made with regard to milestones, with regard 

to funding, that create a tension and make it difficult for the states 

to have that trust relationship. 

And so, while good things are happening, we have been able to 

achieve a lot, specifically at SRS, I think that we could do better. 

Mr. TONKO. Ms. Buthker? 

Ms. BUTHKER. There has been a lot of progress made in Federal 

facility cleanups, not just in Ohio, but throughout all our member 

states have said that. And a good deal of it has to deal with the 

fact that we have been able to collaborate with DOD and DOE on 

the cleanups and work through these issues. 

The problem, where it breaks down is when, whatever the Federal agency is all of a sudden decides that they don’t want to collaborate anymore and they want it their way or the highway. And 

when that situation happens, then that is when we start having 

less progress. That is when we start getting into a lot more of these 

battles over jurisdiction. 

But there has been a great deal of cleanup that has been done 

because states have been working collaboratively. Most Federal facilities are not on the NPL, so the state is the only regulatory agency involved. 

Mr. TONKO. Thank you. 

And Mr. Houlemard? 

Mr. HOULEMARD. Well, yes, Ranking Member Tonko, I would 

agree that there has been a lot of progress made, but then there 

is still so much more to do. We still have 8,000 acres of property 

that we are seeking access at the former Fort Ord, and I could describe another dozen cases where access to property is crucial to 

their economic recovery. 

Mr. TONKO. Thank you. 

And it seems that some cleanups have progressed more smoothly 

than others and can offer best practices for how to work with states 

and engage communities. So can you cite for us observations of best 

practices to foster community involvement and strong cooperation 

amongst the stakeholders? 

Mr. Houlemard? 

Mr. HOULEMARD. Yes, I would give as examples McClellan Air 

Force Base in California; McClellan Army in Anniston, Alabama; 

and the Fort Ord Reuse Authority, where we as communities chose 

to collaborate with military services and the regulatory agencies to 

undertake a portion of our own cleanup and to make sure that we 

understood how it was happening, under effective cost working relationships, using private-sector companies to make sure that happened, with an insurance company that would assist us, and using 

collaborative processes. That worked for us, and we suggest that 

that is a formula that works many other places. 

Mr. TONKO. Thank you. 

Ms. Buthker? 

188 

Ms. BUTHKER. I would say that some of the successes that I have 

experienced—Wright-Patterson Air Force Base. And it was very 

much that collaboration of working with the Air Force, the state, 

and U.S. EPA together, focused on how do we do the cleanup 

quicker, easier, more efficient. And we did a lot of things there. 

Several of our base closure sites in Ohio—Defense Electronic 

Supply Center, again, where we were working with not just U.S. 

EPA and the Air Force, but we were also working with the local 

community to ensure that, when that facility was cleaned up and 

transferred to them, that they could use it how they wanted to us 

it. 

So, yes, there definitely are those experiences. 

Mr. TONKO. Thank you. 

And Ms. Dieck? 

Ms. DIECK. I would echo what these folks have said. It is critical 

to have significant communication outreach efforts in place when 

you are dealing with contaminated sites in any area of your state. 

To have the education, the outreach, the understanding of what the 

contamination is, the status of the cleanup, what the implications 

are is critical. And you find that, with that collaborative approach, 

you can really see tremendous benefit. 

Mr. TONKO. Thank you very much. 

I think my time is exhausted. I was going to sneak one more 

question in, but thank you very much. I yield back. 

Mr. SHIMKUS. The gentleman yields back his time, and we thank 

him. 

The chair now recognizes the vice chair of the committee, Congressman Harper, from Mississippi, 5 minutes. 

Mr. HARPER. Thank you, Mr. Chairman. Appreciate it very much. 

And thanks to each of you for being here to shed some light on 

a very important issue. 

I will start with you, Ms. Buthker. Your written testimony gives 

an example of DOD historically asserting sovereign immunity in 

order to unilaterally decide issues such as what constitutes a state 

applicable or relevant and appropriate requirement. And we also 

understand that Federal agencies assert or threaten to assert sovereign immunity and thereby discourage states from enforcing otherwise applicable state laws. 

Obviously, this is a problem for states, but can you please explain the issue? 

Ms. BUTHKER. Well, the biggest problem with it for states is that, 

when states inconsistently apply their cleanup regulations from 

private parties to Federal facilities, then the private parties can 

raise the issue about, why are you picking on me? We hear a lot 

about Federal agencies wanting to be treated by private parties, 

but when it really comes down to it, they don’t necessarily want to 

do that. 

How that also creates problems with us is that, if ARAR is not 

consistent—applicable or relevant and appropriate regulation isn’t 

consistently applied, then U.S. EPA can come in and say, well, 

since you are not consistently applying that on both your privateparty cleanups and your Federal facility cleanups, we can waive 

that ARAR on our future cleanups because you are not consistently 

doing it. 

189 

So both of those ways can impact the state. 

Mr. HARPER. OK. 

You also mentioned that DOD previously took the position that 

enforcement actions taken by the state could constitute a breach of 

the Defense-State Memorandum of Agreement. Could you first explain what the Defense-State MOA is and then tell us why this is 

problem for states? 

Ms. BUTHKER. The Defense-State Memorandum of Agreement is 

the mechanism by which DOD and a state would come to agreement on how states would be reimbursed for their costs. It outlines 

what particular services the state provides. It doesn’t say state 

oversight; it says the state will provide these services to DOD. But 

it also outlines the agreement that the state would agree to a 

prioritization system for funding, making sure that the most funding goes to the worst sites. 

But then it also had a provision in most DSMOAs that before the 

state could take an enforcement action on a facility that was listed 

under the DSMOA, then they were supposed to go through the dispute resolution process; it also had a dispute resolution process in 

it. And, initially, what states thought that that meant was that, for 

the cleanup part of the—because the DSMOA only covers cleanup—that that was where States needed to go through dispute resolution if they had a disagreement. Like, for number of monitoring 

wells or number of soil samples being collected, that is when they 

would use dispute resolution. But if there was something that was 

a violation of state law and it was even outside of the cleanup program, we felt that was off limits; we could still use our regulatory 

authority. 

And, before 2008, where the DSMOA program really started to 

have problems was that DOD started to any interpret that any regulatory program that the State was involved in that dealt with 

those facilities under our DSMOA, that would apply. 

And I can give you an example. If a base had their own drinking 

water system and they exceeded a contaminant level and were 

issued an NOV, there were concerns that states would end up jeopardizing their funding under the DSMOA and actually be a breach 

of DSMOA if they sent a violation letter to the facility for that. 

So that was pre-2008 when that was happening. 

Mr. HARPER. Does DOD ever—do they ever currently assert this 

position? 

Ms. BUTHKER. In 2008, where the big shift in all this was, we 

actually formed—ASTSWMO states and DOD formed the DSMOA 

Steering Committee, where we worked through all these issues. 

And they clarified that that was not their intent, that the leadership at the time had misinterpreted what that clause was in the 

state’s DSMOA. And it doesn’t apply to any violation. It only applies to disagreements about the cleanup program itself. And they 

actually modified their guidance in 2011 in order to address that 

specific issue. 

But, again, that is guidance and policy statement that is in place 

now. If the leadership at DOD would change, we could have something that would happen again back to that same situation. 

Mr. HARPER. I know we don’t have time for you to answer and 

explain, but are there other agencies besides DOD that are doing 

190 

the same thing in asserting sovereign immunity in order to decide 

what constitutes an ARAR? 

Ms. BUTHKER. Yes, there are other agencies. When we—— 

Mr. HARPER. Just tell me which agencies they are, and maybe 

somebody else will follow up. 

Ms. BUTHKER. Department of Interior and Department of Agriculture are two that specifically our members have cited. 

Mr. HARPER. Thank you very much. 

Mr. SHIMKUS. The gentleman yields back his time members. 

And, for us members, DSMOA is Defense-State Memorandum of 

Agreement. So I am watching acronyms here. 

So the chair now recognizes the ranking member of the full committee, Mr. Pallone, for 5 minutes. 

Mr. PALLONE. Thank you. 

I am trying to get through these questions because I wanted to 

get through a bunch of them. So, first of all, I wanted to ask about 

the funding limitations that can delay and complicate cleanups. 

Mr. Houlemard, can you describe some of the economic impacts 

cleanup delays have on communities around Federal facilities. And 

then, secondly, what about the economic impacts of successful 

cleanups? How do they help local communities? 

Mr. HOULEMARD. Thank you, sir. 

I would like to first address the second one. As we have been 

able to get access to the property at the former Fort Ord and the 

economics in our region have changed in the last several years, we 

have seen a boost in our activities, including the fact that, at the 

current time, we have about a billion dollars of construction underway, with new hotels, new residential, and many other activities. 

Getting access to the property is crucial. We had funding early that 

enabled us to get access to those properties. 

On the other side, we have not been able to get access fully to 

all of the properties on the former Fort Ord because of annual 

funding restrictions under the Antideficiency Act. While that 

means annually Congress has to approve, I know that DOD sometimes is able to overcome that because there is a DOD allowance 

that requires or allows multiyear funding. When you can use that 

kind of funding, you don’t have to lose the time in mobilization and 

demobilization that we have lost every single year in creating new 

contracts, going through the USACE, United States Army Corps of 

Engineers, to be able to do that oversight. 

That saves time in processing, it saves time in mobilization and 

demobilization, and gets the properties cleaned quicker. 

Mr. PALLONE. OK. 

Let me move to the second question. When Congress fails to fund 

agencies consistently because of sequestration, shutdown, or just 

short-term extensions that unfortunately become the norm, it can 

have a significant impact on cleanup schedules. 

So let me ask Ms. Buthker and Ms. Dieck: From the state perspective, are these budget fluctuations and schedule changes disruptive? Quickly, if you can. 

Ms. BUTHKER. Speaking on behalf of the members of ASTSWMO, 

having a stable level of funding for the cleanups so that can ask 

plan and prioritize definitely makes things work a lot easier. States 

191 

can meet with DOD and say, these are the things we want to try 

to accomplish. 

In addition, because our funding that we receive from DOD is 

based on a set work plan, the activities under that work plan, if 

those things do not happen, then states don’t get money. So they 

also have the issue about potentially having to pull off staff that 

were assigned to work with DOD on those particular Federal facility cleanups. So it could definitely cause some disruption there. 

Mr. PALLONE. And let me ask Ms. Dieck quickly, because then 

I have a third question. 

Ms. DIECK. Well, very briefly, when Federal agencies—they don’t 

always ask for the money that they need to meet the commitments 

that have been made to the states. And that becomes very problematic. That is why transparency is critical. 

We work with Federal agencies to come up with a plan that has 

certain goals and milestones put in place, and when we miss those 

goals, it can have economic impacts. If we don’t have the land returned to productive use, it is problematic. 

So it is critical that we have reliable funding that we can count 

on. 

Mr. PALLONE. All right. Thank you. 

Let me go back to Mr. Houlemard about the brownfields program. I was one of the—myself and Congressman Gillmor put together the first brownfields authorization years ago, and I am very 

interested in ways to strengthen the program and make it more effective. 

Could you just elaborate briefly on your suggestion that a flaw 

in the brownfields legislation must be fixed to allow unique sites 

like Fort Ord to qualify for the program? 

Mr. HOULEMARD. Yes. In the case of the former Fort Ord, fence 

line to fence line, we are Superfund under CERCLA for reasons 

having to do with groundwater contamination. The United States 

Army has a process that they are undertaking to remove the 

groundwater problem. It still has 15 years to go before it is going 

to be complete, maybe more. As a consequence, brownfields funding 

to support our efforts above ground are—we are not eligible because we are fence-line-to-fence-line Superfund. 

And so that is the way that the legislationhas been written. We 

have asked U.S. EPA about this issue in the past. They themselves 

recognize that there is a little bit of a conflict because our other 

environmental concerns of asbestos, lead, PCBs, and other things 

that are left to us by the United States Army cost significant 

amounts of dollars to remove. 

In fact, California State University, Monterey Bay, is spending 

$30 million just to remove buildings over the coming years. We 

have already spent $45 million just to remove buildings, and we 

don’t have any kind of assistance or brownfields program that can 

help us with that kind of problem. 

Mr. PALLONE. All right. 

Let me just say to the chairman and to the ranking member of 

the subcommittee, I hope we have an opportunity to work on potential improvements to brownfields in the coming months. When I 

worked with Congressman Gillmor years ago and President Bush 

192 

signed the bill, we did it in a very bipartisan way, and I would like 

to see if we could do that again in terms of a reauthorization. 

Mr. SHIMKUS. The gentleman yields back his time. 

We thank you for that suggestion. And we all mourn the passing 

of Paul, and that is a good memory of Paul, of successful legislation, bipartisan, that was moved and passed. 

So now I would like to recognize, looks like, obviously, the member who took the seat of Paul Gillmor, Bob Latta, for 5 minutes. 

Mr. LATTA. Well, thanks very much, Mr. Chairman. 

And thank you very much for our witnesses for being here. I 

really appreciate it. 

And if I could start with you, Ms. Buthker, I am going to assume 

from your testimony that you believe that current and formerly 

owned Federal facilities should have to comply with the same state 

requirements as a private entity conducting a cleanup under 

CERCLA? 

Ms. BUTHKER. Yes. 

Mr. LATTA. OK. 

And let me ask this: With your leadership at—and I hope I am 

pronouncing this right—at ASTSWMO, how often do Federal facilities comply with state requirements? 

Ms. BUTHKER. How often? 

Mr. LATTA. How often, in your experience, at ASTSWMO do you 

see that the Federal Government, Federal agencies are complying 

with state requirements? 

Ms. BUTHKER. This issue of Federal agencies complying with 

state requirements and not saying that—or waiving them has pretty much been a constant issue for the 20 years I have been involved at ASTSWMO. 

Mr. LATTA. OK. 

And do you believe that section 120 of CERCLA is evidence that 

Congress intended to waive sovereign immunity? 

Ms. BUTHKER. I believe that it is. But I am not an attorney, so 

I am saying that. But I would believe it is because they were—the 

way that I read it when I read it is that they are supposed to, especially the non-NPL facilities, they are supposed to be meeting state 

requirements. 

Mr. LATTA. And does the current waiver of sovereign immunity 

in CERCLA result in less oversight of Federal agency cleanups 

than in cleanups by private parties? 

Ms. BUTHKER. I would say for the non-NPL sites that are under 

state oversight, yes, because you always have that specter of sovereign immunity in the picture. 

If you have good collaboration with DOD, DOE, or the other Federal agencies, then you can work through these issues and these 

problems and these disagreements as you have them. But if you 

have a Federal facility project manager who doesn’t want to listen 

to the state or the community, then they can basically shut down 

the program because they are lead agency, and if the state tries to 

sue, then sovereign immunity raises its head. 

Mr. LATTA. OK. 

One last question, with my remaining time here. Last Congress, 

I introduced and the House passed H.R. 2318, which was the Federal Facility Accountability Act—and kind of following up with 

193 

what you were talking about—which ensures that current and formerly owned Federal facilities will have to comply with the same 

State requirements as a private entity doing a cleanup under 

CERCLA. 

And then, in your testimony, you discuss the need for this type 

of legislation and how your association’s positions have not changed 

over time because your members continue to have experiences 

where Federal agencies use sovereign immunity to avoid compliance with state requirements during investigation and cleanup of 

Federal facilities. 

And can you describe some of the state requirements that the 

Federal agencies are trying to avoid? 

Ms. BUTHKER. Probably the biggest one or one of the biggest ones 

is land use control, state regulations that implement restrictions on 

property. A lot of states have developed their own environmental 

covenant programs, and Federal agencies do not like to use that 

format for restricting property. They want to use their own mechanism. 

How that causes problems for the states is, when there isn’t a 

consistent means to restrict property, there is the potential that 

those restrictions can fail over time. And that is a very big issue 

for states. That is one. 

Cleanup standards. Some states have set generic standards for 

cleanup, and DOD may or may not or the Federal agencies may or 

may not want to clean up to those levels. 

There is also things such as how landfills should be capped. A 

lot of states have their own regulations for those, and there are 

times when DOD says, no, those—or I shouldn’t say just DOD—all 

the Federal agencies will say those shouldn’t apply. 

Mr. LATTA. Thank you. 

And, Mr. Chairman, in the interest of time, I am going to yield 

back my time and also say it is a privilege to hold the seat that 

Paul held. 

Mr. SHIMKUS. Yes. Thank you. 

The gentleman yields back his time. 

The chair now recognizes the gentleman from West Virginia, Mr. 

McKinley, for 5 minutes. 

Mr. MCKINLEY. Thank you, Mr. Chairman. 

I missed the first portion last week when we began, so perhaps 

this question has come up, but I am just curious on your perspective, because you are coming at, it looks like, from a different panel 

than we had before. But I am curious about some of the discussion 

about the Animus River out in Colorado. And I know it is about 

126 miles long, and the EPA caused some problem there. They 

caused the issue to occur at the Gold King Mine. 

Now, two things here with that is, are you hearing, from your 

perspective, did they solve it in a quick way? Do you think that— 

again, because we were talking earlier about if it is federally—if 

the Federal Government caused the problem, they can take a long 

time to get it resolved, or not, or they can find ways to cut corners, 

perhaps. I have heard some of this. 

Do you think they did a pretty good job out there? Have you 

heard anything from the states, from other people talking about 

how they cleaned up the river? Let me just start with that. Any 

194 

comments about the—you haven’t heard? You don’t know anything 

about it? 

Ms. DIECK. I have to say, I know some things about it, but I 

would like to refrain from commenting on that. 

Mr. MCKINLEY. OK. I am just thinking, since it touched several 

states and it had some impact on—again, it goes back to what you 

were saying, sir, about individual input. With 126 miles long, there 

were a lot of people that were affected by that. Their farms were 

affected by it. I don’t know whether or not they had a chance to 

participate in a solution of how—I know it is going to clear up 

themselves naturally, I understand that, but the damage has been 

done. 

So part of my point would be—or the second question would be, 

who should pay for the cleanup? The taxpayers? Or should the government pay for that out of their current funding? Who would you 

think? It is kind of input. We are sitting around a table now where 

maybe you don’t have an official position, but who do you think 

should pay for the damage the government caused by what they 

did? Is that something we are going to ask the taxpayers to come 

up with the money, or do you think maybe it should come out of 

their budget? 

Does anyone have the courage to speak on this? 

Ms. BUTHKER. I really don’t know enough about the situation. It 

hasn’t—— 

Mr. MCKINLEY. But just in general, if a government causes a 

problem, should the government clean it up on their dime, or 

should they pass that on to the taxpayers of the country? 

Ms. BUTHKER. Well, I would say, when you are looking at Federal agencies and Federal agency cleanup and those Federal agencies caused the contamination, some of it were from practices that 

they didn’t know were bad things to do at the time. And, in that 

case, the Federal agencies are cleaning it up, but that is also taxpayer money that is funding that. 

Mr. MCKINLEY. Yes. 

Ms. BUTHKER. So I don’t know if that answers your question or 

not, but—— 

Mr. MCKINLEY. It doesn’t. It doesn’t. Because this one is something—they directed the work to be done; it caused a problem. And 

I am just questioning—if they were a private person in the mining 

industry—I come from the coalfields of West Virginia. When they 

cause a problem, the mines are fined immediately, and they have 

to come up with the money. 

I am just curious on this, whether or not this is something that 

fits into some of this discussion about responsibility, where the 

Federal Government should be. So it is more of just a general discussion. It may be very generic rather than specific to the Gold 

King Mine, whether or not they should pay for it out of their budget rather than a separate appropriation to clean it up. Because it 

is going to be millions of dollars in damages to the farmers and the 

fisheries and all that are affected by that. 

So I go back to your point again, do the people have a chance 

to speak? Because from what I can understand from reading the 

newspapers out there, there are a lot of people who have been damaged out there, and I am just wondering whois going to compensate 

195 

them. Is it going to be the taxpayers, or is it going to be the EPA 

for calling the wrong shot? 

Mr. HOULEMARD. I am not aware of the circumstances, sir, but 

I would always encourage the EPA and all Federal agencies to engage in a very active way with the local community, and the same 

would be for this case. 

Mr. MCKINLEY. Thank you very much. 

I yield back my time. 

Mr. SHIMKUS. The gentleman yields back his time. 

That is all the members seeking time to ask questions. We appreciate you all being here. I think there is—with the comments 

from the ranking member of the full committee, there may be some 

issues that we can talk—on brownfields, and we will see where we 

go from here. 

That is why we have hearings, to identify problems and maybe 

address solutions. And I look forward to working with my ranking 

member, Mr. Tonko, as we have successfully in the past, and 

maybe there is something we can do. 

With that, I will adjourn the hearing. Thank you for coming. 

[Whereupon, at 4:59 p.m., the subcommittee was adjourned.] 

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