U.S. GOVERNMENT PRINTING OFFICE

55–642CC WASHINGTON : 1999

THE STATUS OF THE FEDERAL SUPERFUND

PROGRAM

HEARING

BEFORE THE

SUBCOMMITTEE ON

FINANCE AND HAZARDOUS MATERIALS

OF THE

COMMITTEE ON COMMERCE

HOUSE OF REPRESENTATIVES

ONE HUNDRED SIXTH CONGRESS

FIRST SESSION

MARCH 23, 1999

Serial No. 106–44

Printed for the use of the Committee on Commerce

(

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COMMITTEE ON COMMERCE

TOM BLILEY, Virginia, Chairman

W.J. ‘‘BILLY’’ TAUZIN, Louisiana

MICHAEL G. OXLEY, Ohio

MICHAEL BILIRAKIS, Florida

JOE BARTON, Texas

FRED UPTON, Michigan

CLIFF STEARNS, Florida

PAUL E. GILLMOR, Ohio

Vice Chairman

JAMES C. GREENWOOD, Pennsylvania

CHRISTOPHER COX, California

NATHAN DEAL, Georgia

STEVE LARGENT, Oklahoma

RICHARD BURR, North Carolina

BRIAN P. BILBRAY, California

ED WHITFIELD, Kentucky

GREG GANSKE, Iowa

CHARLIE NORWOOD, Georgia

TOM A. COBURN, Oklahoma

RICK LAZIO, New York

BARBARA CUBIN, Wyoming

JAMES E. ROGAN, California

JOHN SHIMKUS, Illinois

HEATHER WILSON, New Mexico

JOHN B. SHADEGG, Arizona

CHARLES W. ‘‘CHIP’’ PICKERING,

Mississippi

VITO FOSSELLA, New York

ROY BLUNT, Missouri

ED BRYANT, Tennessee

ROBERT L. EHRLICH, Jr., Maryland

JOHN D. DINGELL, Michigan

HENRY A. WAXMAN, California

EDWARD J. MARKEY, Massachusetts

RALPH M. HALL, Texas

RICK BOUCHER, Virginia

EDOLPHUS TOWNS, New York

FRANK PALLONE, Jr., New Jersey

SHERROD BROWN, Ohio

BART GORDON, Tennessee

PETER DEUTSCH, Florida

BOBBY L. RUSH, Illinois

ANNA G. ESHOO, California

RON KLINK, Pennsylvania

BART STUPAK, Michigan

ELIOT L. ENGEL, New York

THOMAS C. SAWYER, Ohio

ALBERT R. WYNN, Maryland

GENE GREEN, Texas

KAREN MCCARTHY, Missouri

TED STRICKLAND, Ohio

DIANA DEGETTE, Colorado

THOMAS M. BARRETT, Wisconsin

BILL LUTHER, Minnesota

LOIS CAPPS, California

JAMES E. DERDERIAN, Chief of Staff

JAMES D. BARNETTE, General Counsel

REID P.F. STUNTZ, Minority Staff Director and Chief Counsel

SUBCOMMITTEE ON FINANCE AND HAZARDOUS MATERIALS

MICHAEL G. OXLEY, Ohio, Chairman

W.J. ‘‘BILLY’’ TAUZIN, Louisiana

Vice Chairman

PAUL E. GILLMOR, Ohio

JAMES C. GREENWOOD, Pennsylvania

CHRISTOPHER COX, California

STEVE LARGENT, Oklahoma

BRIAN P. BILBRAY, California

GREG GANSKE, Iowa

RICK LAZIO, New York

JOHN SHIMKUS, Illinois

HEATHER WILSON, New Mexico

JOHN B. SHADEGG, Arizona

VITO FOSSELLA, New York

ROY BLUNT, Missouri

ROBERT L. EHRLICH, Jr., Maryland

TOM BLILEY, Virginia,

(Ex Officio)

EDOLPHUS TOWNS, New York

PETER DEUTSCH, Florida

BART STUPAK, Michigan

ELIOT L. ENGEL, New York

DIANA DEGETTE, Colorado

THOMAS M. BARRETT, Wisconsin

BILL LUTHER, Minnesota

LOIS CAPPS, California

EDWARD J. MARKEY, Massachusetts

RALPH M. HALL, Texas

FRANK PALLONE, Jr., New Jersey

BOBBY L. RUSH, Illinois

JOHN D. DINGELL, Michigan,

(Ex Officio)

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C O N T E N T S

Page

Testimony of:

Fields, Hon. Timothy, Jr., Assistant Administrator, Office of Solid Waste

and Emergency Response, Environmental Protection Agency .................. 13

Guerrero, Peter F., Director, Environmental Protection Issues, General

Accounting Office .......................................................................................... 132

Kerbawy, Claudia, Chair, Federal Superfund Focus Group, Association

of State and Territorial Solid Waste Management Officials ..................... 142

Material submitted for the record by:

Dingell, Hon. John D., a Representative in Congress from the State

of Michigan, letter dated April 12, 1999, to Timothy Fields, Acting

Assistant Administrator for Solid Waste and Emergency Response, Environmental Protection Agency, enclosing questions for the record, and

responses to same ......................................................................................... 157

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THE STATUS OF THE FEDERAL SUPERFUND

PROGRAM

TUESDAY, MARCH 23, 1999

HOUSE OF REPRESENTATIVES, COMMITTEE ON COMMERCE, SUBCOMMITTEE ON FINANCE AND HAZARDOUS MATERIALS, Washington, DC.

The subcommittee met, pursuant to notice, at 2:05 p.m., in room

2123, Rayburn House Office Building, Hon. Michael G. Oxley

(chairman) presiding.

Members present: Representatives Oxley, Tauzin, Greenwood,

Largent, Ganske, Shimkus, Wilson, Fossella, Blunt, Ehrlich, Bliley

(ex officio), Towns, Engle, DeGette, Barrett, Luther, Capps,

Pallone, and Rush.

Staff present: Nandan Kenkeremath, majority counsel; Amit

Sachdeb, majority counsel; Anthony Habib, legislative clerk; Richard Frandsen, minority counsel; Alison Berkes, minority counsel,

and Anne Zorc, minority legislative intern.

Mr. OXLEY. The subcommittee will come to order.

The Chair will recognize himself for an opening statement and

then recognize members in order of appearance.

Our topic today is the Superfund Program, but it is not like we

haven’t been here before. This subcommittee has held over 25 hearings on Superfund over the past 6 years, both here in Washington

and on the road. I am pretty sure I have been at all of them. Just

call me the Cal Ripken of Superfund Reform.

The message we are likely to hear today is sites are finally starting to work their way through the pipelines. Given that a lot of

those sites have been on the NPL since the 1980’s, I would certainly hope that we would be seeing remedies finally being selected. Close to half are finally in a phase called ‘‘construction complete.’’ Final cleanup remains in the distance, and the litigation

pipeline in steering thousands of parties will remain for years and

years.

The sad truth is that, during the nearly 20 years of CERCLA,

we could have been cleaning up sites with greater speed and less

waste while protecting people’s health and the environment. Despite several rounds of administrative reforms, the Superfund statute itself remains fundamentally flawed. The liability scheme is

unfair and is better suited to courtroom fights than cleanup sites.

The remedy selection process is often unrealistic, and Superfund

creates disincentives and uncertainty for State and voluntary

cleanups for a lot of the work that is getting done these days. The

quality of our Nation’s most prominent cleanup program does matVerDate 27-JAN-2000 09:15 Feb 03, 2000 Jkt 010199 PO 00000 Frm 00004 Fmt 6633 Sfmt 6633 E:\HEARINGS\55642 txed02 PsN: txed02
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ter. When sites stay abandoned because of Superfund’s vagaries,

people suffer; neighborhoods suffer; cities and towns suffer.

I still believe that there is a bipartisan majority in the House

and a broad number of stakeholders for significant changes in the

Superfund statute. The litigation pipeline is still causing injustice.

According to States, cleanup contractors, and realtors, Superfund is

still creating a disincentive for thousands of brownfields sites. If we

don’t take the recommendations of the States and cleanup contractors to fix Superfund, cleanups will continue to languish and development will continue to push out into the pristine rural countryside.

Many Members of Congress have worked on a bipartisan basis

over the last 6 years with State cleanup agencies, cleanup engineers, and dozens of experts to develop statutory changes that

would make a real difference. Many of those proposals have lasting

value and are worth exploring. We also have to realize that, for reforms to move forward, they need bipartisan support.

Today, we welcome Mr. Tim Fields in what I believe is his first

appearance in front of the subcommittee since he was formally

named as Assistant Administrator. We welcome back Peter Guerrero with the GAO, which has compiled an impressive body of work

critiquing the Superfund Program. I also think it will behoove all

of us to listen closely to the State perspective that will be presented

by Ms. Claudia Kerbawy, who has traveled here from Michigan on

behalf of ASTSWMO.

State agencies are cleaning up many more sites than the Federal

Government at this time. States are closer to the problem, closer

to local governments, and have less bureaucracy. Their efforts point

to the way of the future. I will be turning to all of today’s witnesses, other stakeholders, and members on both sides of the Chair

for more information, the right formula, and the right opportunity

for positive results.

Yogi Berra once observed it is all deja vu all over again. I hope

that those in this room don’t feel that way. Maybe it is because the

optimist in me comes out during spring training, when all teams

are equal and the Tigers have as good a shot at the World Series

as anybody else, but I certainly think we can definitely improve on

a status quo that has been unsatisfactory. I’m ready to play ball,

if others are.

The Chair now recognizes the gentleman from New York, the

ranking member of this subcommittee, Mr. Towns.

Mr. TOWNS. Thank you very much, Mr. Chairman. First of all,

let me thank you for holding this hearing, and I would like to welcome our witnesses today to our oversight hearing on the current

status of the Superfund Program.

In the last year, 31 additional non-Federal sites have been listed

on NPL, as physical cleanup actions to mitigate threats to human

health and the environment have taken more than 50 percent of

the these newly listed sites. These statistics reflect tremendous

progress on the ground in our neighborhoods, protecting the health

of our citizens from toxic waste.

Mr. Chairman, it would be unwise and counterproductive to

make comprehensive changes to the program at this point. Such

changes would also likely lead to a slowdown in Superfund cleanVerDate 27-JAN-2000 09:15 Feb 03, 2000 Jkt 010199 PO 00000 Frm 00005 Fmt 6633 Sfmt 6633 E:\HEARINGS\55642 txed02 PsN: txed02
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ups. This is a result I hope none of us wish for, even though delay

may be a strategy employed by some of those responsible for contamination at certain sites.

Let us focus on brownfields and areas where we essentially agree

on liability clarification for the prospective bona fide purchases and

developers, innocent landowners, and contiguous property owners. The President’s budget invests approximately $92 million in the

cleanup and redevelopment of abandoned industrial sites through

EPA’s Brownfields Program, including $35 million for the

brownfields revolving loan fund, which helps communities leverage

funds for the actual cleanup of brownfields sites.

We should ensure the successful program which has assisted 350

communities continues, with the full support of this Congress, by

recognizing that over the last 4 years EPA has listed on the Superfund National Priorities List only those sites that the States are

unwilling or unable to handle. It is important to acknowledge that

the Federal Superfund statute has played a strong and important

role in assisting State cleanups. Many State officials have informed

Congress that the Federal liability scheme and the threat of NPL

listing are important incentives to private parties to voluntarily

clean up State sites. The General Accounting Office has recently reported similar findings to Congress.

Mr. Chairman, I look forward to hearing from the witnesses. I

think this is a very important hearing and thank you very much

for calling it.

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

from Ohio, Dr. Ganske.

Mr. GANSKE. Thank you, Mr. Chairman. Well, you are absolutely

right, Mr. Chairman; we have held a lot of hearings in the last few

years on comprehensive Superfund reform. And, you know, Mr.

Chairman, when you have got the votes, you move comprehensive

legislation, and after a while, when you don’t, you start looking at

fixing part of the problem. And so I’m in agreement with the ranking member, and in our conversations, I think that it is fair to say

there is sentiment on the Republican side to look at a brownfields

piece of legislation.

In Des Moines, Iowa, my home, there are brownfields. I see thousands and thousands of acres of the best farmland in the world,

Grade A Iowa farmland being eaten up by a peripheral development around the cities every year, when those prior industrial sites

in the center of our Iowa cities are going unused because of the

brownfields problem.

And so, as we’ve discussed, Mr. Chairman, a number of us will

be working on trying to craft a bipartisan piece of brownfields legislation this year that can pass and become law, and I look forward

to working with you and the members on the other side on this

issue.

I yield back.

Mr. OXLEY. The gentleman yields back. The gentleman from New

Jersey, Mr. Pallone.

Mr. PALLONE. Thank you, Mr. Chairman, and as you said, we are

here again, and although the members of this subcommittee may

have changed somewhat, the topic really hasn’t changed much and

my attitude about Superfund hasn’t changed. I personally remain

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pleased with the direction of progress that EPA is making in the

Superfund Program, particularly, in New Jersey and in my district.

I want to say that, as of December 1998, New Jersey has or has

had 123 sites on the National Priorities List—more than any other

State in the country—and 2 proposed NPL sites. In my district

alone, there are nine sites. EPA’s Region 2, which encompasses

New York and New Jersey, contains 223 Superfund sites and 9 proposed sites. Of these, 75 sites, or 33 percent, have been cleaned up

and deleted from the NPL or have all their construction completed

and are undergoing long-term remediation.

Cleanup progress is evident, considering that at the end of fiscal

year 1996 there were 42 sites completed and 60 complete sites by

the end of fiscal year 1997. In addition, over 247 tons and 3.9 million gallons of products from abandoned sites were removed or

treated. And in New Jersey alone, approximately 76 percent of our

sites are either being cleaned up or are cleaned up, and mitigation

work has been conducted at more than 10 percent of the sites,

bringing the total percentage of sites in New Jersey at which physical work has been done to more than 85 percent.

All nine sites in my district have experienced some level of cleanup. They are either undergoing cleanup construction or have had

threats mitigated by physical work, and in fiscal year 1998, three

sites in New Jersey were deleted from the NPL.

I mention this because, obviously, I think that the EPA is doing

a good job in terms of overall cleanup. A large number of the sites

in New Jersey at which work has been completed have not been

deleted from the NPL only because long-term monitoring is still

going on or because long-term treatment of groundwater is still underway. And these monitoring effects may have been, or could continue to be, underway for many years. Nevertheless, such efforts

are critical to protect human health and resources for current and

future generations, and I believe that remedial measures undertaken now will minimize the extent and costs of future remedial actions.

Today, I know we are discussing the same issues surrounding

the Superfund Program that we have discussed for years, and let’s

face it, cleaning up hazardous waste sites is not a simple task. We

here in Congress need to decide what about the Superfund Program is more important—how long it takes to cleanup the site or

whether that site gets cleaned up safely and to a level that protects

kids and the environment. Obviously, I feel that the latter is more

important and that’s why I think it’s important that, even though

we have done a lot of cleanup, we have to still go at it with the

remediation, the groundwater, and the other things to make sure

that public safety and health are protected.

Now, I say that by way of background, because, I just want to

say, in conclusion, that I believe this is not the time to roll back

or significantly alter our Superfund Program. Substantial changes

would only cause more unnecessary delays in cleaning up our Nation’s Superfund sites. If anything, we need to ensure that our Federal program remains strong, is well funded, that the burden of site

cleanups remains with the polluter—the potentially responsible

party—and that we avoid any corporate carveouts.

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So, at this point, I know this is an oversight hearing. Let me say

that I think that we are moving forward in a substantial way, and

that I would be fearful that any substantial changes to the Superfund Program, instead of going in a more progressive way, might

actually do harm to the program. And for that reason, I am very

suspect of any effort to make significant changes at this time.

Thank you, Mr. Chairman.

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

from Pennsylvania, Mr. Greenwood.

Mr. GREENWOOD. Thank you, Mr. Chairman. I also want to

thank you for holding these hearings.

It is vital that we continue to work toward reform of the Comprehensive Environmental Response, Compensation, and Liability

Act, better known as Superfund. Like many other members of the

committee, my district has been directly impacted by the act. My

suburban Philadelphia district of Bucks and Montgomery counties

has eight National Priorities List sites alone, not to mention that

we have four square miles of brownfield sites located in the southern portion of Buck County.

I am in full support of comprehensive Superfund reform. I think

it is amazing to hear that some are not. I think the program has

been a disaster, not only in what it has done wrong in the lives of

innocent American citizens, but what it has failed to do at great

expense. But I would like to direct my comments to once specific

area of Superfund reform.

Of personal interest to me is the title in Superfund dealing with

brownfields. My interest in this area is not driven just because of

my intimate knowledge of the large area of abandoned or underutilized, once-prime commercial real estate in my district, and I thank

the chairman for having brought this committee to my district to

look at that problem, but also because returning America’s original

fields of dreams to active use is key to economic development. And

as we all know, economic development leads to job creation, a drop

in welfare rolls, a reduction in crime, and safer, healthier neighborhoods. In fact, economic development is a vital component of the

fulfillment of the American dream, self-sufficiency, and opportunity. As long as these properties lie vacant, the dream will remain unfulfilled for many Americans who live and struggle to survive in these areas.

The brownfields program has many sources. Foremost among

them is the Federal law itself. Under Superfund, the parties who

currently own or operate a facility can be held 100 percent liable

for any cleanup costs, regardless of whether they contributed to the

environmental contamination and regardless of whether they were

in any way at fault.

The imposition of this liability has led to tragic consequences, including the potential developers who recoil from any site with a

history of industrial activity. It is simply not worth it for them to

deal with the environmental exposure, when they have the alternative of developing in rural areas with no potential for liability.

In stark contrast to the Federal program, 32 States have

launched so-called voluntary cleanup programs. Under these initiatives, property owners comply with State cleanup plans and are

then are released from further environmental liability under State

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law at the site. In fact, in the first year the Commonwealth of

Pennsylvania enacted its brownfields program, it succeeded in

cleaning 35 sites, again, in the first year.

Although many of these State laws have proven successful,

States, businesses, and other experts have testified before this subcommittee that they could be far more effective if participation in

a State voluntary cleanup program also included a release from

Federal environmental liability. Therefore, it is imperative that any

initiative to reform Superfund include a strong brownfields provision.

Once again, Mr. Chairman, thank you for holding this hearing

today. I look forward to working with the committee in crafting legislation that will ensure a clean and safe environment for ourselves, for our children, and for generations to come.

Mr. OXLEY. The gentleman’s time has expired. The gentlelady

from Colorado, Ms. DeGette.

Ms. DEGETTE. Thank you, Mr. Chairman, and thank you for having this hearing on the Superfund site.

Today, I am pleased to say the program is running more efficiently and effectively than at any time in its history. In fact, by

the end of the 106th Congress, it is projected that 90 percent of the

non-Federal Superfund site listed as of September 30, 1997 will either have all construction completed or remedial construction underway. In addition, 3,800 emergency removal actions have been

taken at sites not on the National Priorities List.

Responsible parties who perform the vast majority of long-term

cleanups are saving the taxpayers billions of dollars, and by the

end of fiscal year 2000, four times as many sites will have finished

construction compared to the first 12 years of the program.

In Colorado, my home State, the pace of cleanup has accelerated

in the last 6 years as well. Clearly, the success of this program has

turned around during this administration, and improved human

health and the environment at the vast majority of sites through

the country. These tangible and significant results, they demonstrate the increase and effectiveness of the Superfund Program.

And I would like to talk for a minute about a site in Colorado.

In the last year alone, the EPA has listed 31 additional sites, and

17 cleanup actions have been initiated to mitigate threats to

human health and the environment. Recently, the EPA listed the

I-70 and Vasquez site in Denver. I know that the EPA will work

with the State of Colorado, the city of Denver, and especially the

neighborhood, to ensure that remedy selected gives the highest

level of protection to human health and the environment and takes

into account how the remedy will affect property values in the

years to come.

I remain concerned, however, Mr. Chairman, that the Federal

Government hides behind the shield of sovereign immunity to protect itself from State enforcement of most environmental laws, and

to that end, Mr. Chairman, I have today an article from the March

1999 National Environmental Enforcement Journal, published by

the National Association of Attorneys General. I’d like to ask unanimous consent to insert that into the record, if I may.

Mr. OXLEY. Without objection.

[The article is retained in subcommittee files:]

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Ms. DEGETTE. Thank you.

Federal facilities which aren’t cleaned up to the same standards

as other privately owned properties create a heightened risk for redevelopment and allow the Federal Government to shirk its responsibilities to communities across the country. Given the Federal

Government’s continued downsizing, sites which once housed Federal facilities are being transferred to the private sector, creating

new opportunities, but also, frankly, new uncertainties.

Finally, I can’t resist commenting on the brownfields discussion

that we are having today, because that has been one of my main

focuses in my career in Congress. I am encouraged to hear on both

sides of the aisle that people want to pass brownfields legislation,

and, in fact, had a conversation myself with the chairman of the

full committee about this issue the other day. I understand, although I disagree, with some members’ of this committee desire to

attach brownfields to some kind of Superfund reauthorization. I

have been here now 2 years and I haven’t seen that reauthorization

occur. I’m not optimistic that it will occur any time soon, but, yet,

meaningful brownfields legislation continues to languish.

This would help all of us in our districts, rural and urban,

throughout the country, and it would also help with some of the

sprawl that we are seeing in areas like mine in Colorado. It would

help stop greenfields from being developed at the expense of redevelopment of places like several I can think of in Denver.

And so I would urge you, Mr. Chairman, and this whole committee, to consider strongly working on bipartisan brownfields legislation and to move that ahead this Congress, irrespective of whatever action we may decide on Superfund reauthorization. I think

the time is ripe. I think our constituents want it, and I think our

businesses would welcome it. I think it is a win-win situation for

everyone.

Thank you, Mr. Chairman. I yield back the balance of my time.

Mr. OXLEY. The gentlelady yields back. The gentleman from Missouri, Mr. Blunt.

Mr. BLUNT. Thank you, Mr. Chairman, and thank you for having

this hearing on this topic.

Like many other Members of Congress, I have a number of sites

in my district in southwest Missouri, and, of course, there is a

number of sites in our State. I will say that generally our contacts

with the agencies, the oversight agencies, are positive, and more

positive than they may have been in the past, but I still think that

our oversight responsibility is significant here. I think looking at

the law to make the law better is an important goal for this committee and for this Congress to have.

We need an effective cleanup program. To have that kind of program is critical. To have a program that actually moves toward

final cleanup is very important, and I think, Mr. Chairman, that

we need more results rather than more verdicts. Maybe we need

more mitigation and less litigation, as we try to solve this problem.

In oversight, our goals should not be to defend everything the

government does. Our goal should be to make everything the government does better; that this program can be improved. Nobody

on this committee, or in the Congress, or who works with the proVerDate 27-JAN-2000 09:15 Feb 03, 2000 Jkt 010199 PO 00000 Frm 00010 Fmt 6633 Sfmt 6633 E:\HEARINGS\55642 txed02 PsN: txed02
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gram every day would begin to defend everything that happens in

the program or everything in the law.

We need to take our oversight responsibility seriously. I’m

pleased that you do that and glad that you’re leading the committee in doing that, Mr. Chairman.

Mr. OXLEY. I thank the gentleman and recognize the gentlelady

from California, Ms. Capps.

Ms. CAPPS. Thank you, Mr. Chairman, for holding this important

hearing today.

I think it is useful to look back 20 years ago to when the Superfund was established to identify and clean up hazardous waste

sites. Prior to Superfund, across the Nation were hundreds of toxic

waste sites that threatened the environment and public health, and

weakened the long-term health of local economies. While the cleanup process has been arduous, significant progress has been made

in identifying and cleaning up many of our Nation’s most hazardous waste sites.

As we approach a new millennium, it is estimated that 90 percent of the listed Superfund sites will have either construction completed or remedial construction underway. Over the last decade,

the pace of cleanup has also increased significantly. In 1992, only

12 percent of listed non-Federal Superfund sites had completed

construction. By the end of year 2000, 61 percent of these sites are

expected to have all construction completed, a fourfold increase.

EPA, particularly under the current administration, has made

considerable strides in improving the program with its administrative reforms. Furthermore, innovative programs such as EPA’s

Brownfields Initiative have proven successful in empowering

States, communities, and other stakeholders through public-private

partnerships to restore contaminated lands and spur economic development, greatly benefiting our local economies.

In my own district, Santa Barbara County is participating in a

brownfields pilot program to restore the old town of Goleta as an

economically vital, social, and cultural focus of the community.

While great advances have been made under the Superfund Program, there may be ways in which Congress might work with EPA

to further improve upon this effort. For example, while cleanup is

proceeding at the majority of Superfund sites, a great deal of litigation is also ongoing. This specter of litigation can be particularly

burdensome to smaller parties, municipalities, and businesses.

However, any effort to improve upon Superfund must not weaken

cleanup standards established to protect human health and the environment.

I believe that it is worth exploring ways in which we can try to

reduce the amount of litigation to achieve what I think is the

shared goal of everyone, to clean up as many sites as we can as

quickly as possible to protect public health, the environment, and

local economies. I look forward to working with my colleagues as

we address this most important issue.

I yield back the balance of my time.

Mr. OXLEY. The gentlelady yields back. Thank you very much.

The gentleman from Maryland, Mr. Ehrlich.

Mr. EHRLICH. I have no prepared statement, Mr. Chairman,

other than to say I look forward to this hearing an awful lot. There

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is an awful lot to say. Many members of this subcommittee are interested in moving one or more bills, as we have discussed, and I

congratulate you with respect to your leadership on this issue. I

hope we can work in a bipartisan way, and I trust that we can, to

really, at the very least, move the brownfields bill out of this subcommittee and the full committee over the next couple of months.

I appreciate the time.

Mr. OXLEY. The gentleman yields back, and we now——

Mr. TOWNS. Mr. Chairman, may I ask unanimous consent that

we leave the record open for additional statements for members?

Mr. OXLEY. Without objection, it would be the desire of the Chair

to have any opening statements be made part of the record.

[Additional statements submitted for the record follow:]

PREPARED STATEMENT OF HON. PAUL GILLMOR, A REPRESENTATIVE IN CONGRESS

FROM THE STATE OF OHIO

Mr. Chairman, I want to thank you for calling this hearing. Comprehensive

Superfund reform is just as important today as it was when this panel first tried

to accomplish it in the 103rd Congress. We both have sat on the hazardous materials panel of this committee for several Congresses and know just how broken a

program that Superfund reform is.

Superfund is the quintessential government program that spends way too much

as its accomplishes far too little. In the meantime, the agency that administers it

has resisted even modest proposals for change on political grounds. This is the worst

possible scenario for the taxpayers, hazardous waste rots in the ground while lawyers and bureaucrats quibble over how to divide the spoils.

We need a Superfund program that recognizes its faults and works to correct

them. Whatever has happened in the past needs to be understood, honestly evaluated, and changed. Back when Superfund was first created, the Federal government

was asked to respond to an emergent local concern. Today, Superfund has grown

into a program that often responds without asking, cleans out without cleaning up,

and begins without ending. We need a hazardous waste program that works for us

and meaningful reform is the only way to make that a reality.

I am very interested to hear from the Clinton Administration’s witness on how

we no longer need to comprehensively reform this program. It has been my experience, and that of the Government Accounting Office and EPA’s own Inspector General that EPA is spending less than 50 cents on the dollar on actual dirt moving,

Superfund cleanup. This is bad enough, but when you combine this fact with acknowledged slowness in cleaning up sites, a nightmare of a liability system, and

clean up standards that defy logic, Superfund reform becomes more of an imperative

than a slogan. I think that if the Administration is willing to walk away from correcting this mammoth program, this committee and the American public deserve a

good explanation as to why.

I am also looking forward to hearing from the Government Accounting Office on

the Superfund program. In the last Congress, GAO provided some of the most

damning evidence as to what Superfund was not doing and why Congress needed

to step in and make it better. It is important that our discussion on Superfund be

current and extensive. This committee should be fully aware of all the things that

Superfund is doing, both good and bad, so a reformed program will encourage more

cleanups, not prohibit them.

Again, Mr. Chairman, thank you for calling this important hearing. Major, structural reforms to Superfund remain a concern today and should be for all those who

care about the environment.

PREPARED STATEMENT OF HON. STEVE LARGENT, A REPRESENTATIVE IN CONGRESS

FROM THE STATE OF OKLAHOMA

Mr. Chairman, today’s hearing reminds me of Yogi Berra’s famous line, ‘‘It’s deja

vu all over again.’’ Over the past six years, in an attempt to reform the current

Superfund program, the House and Senate committees with jurisdictional authority

over Superfund have held over sixty hearings on this issue. Clearly, these hearings

have borne out one unquestionable fact—Superfund is not working. Despite expendiVerDate 27-JAN-2000 09:15 Feb 03, 2000 Jkt 010199 PO 00000 Frm 00012 Fmt 6633 Sfmt 6621 E:\HEARINGS\55642 txed02 PsN: txed02
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tures in the billions of dollars, Superfund has failed to clean up more than a small

fraction of the nation’s worst hazardous waste sites.

This Subcommittee has heard testimony from numerous Members, on both sides

of the aisle, chronicling the bureaucratic nightmare that states, localities, and businesses face when ensnared in the Superfund web.

One of most troubling aspects of the current Superfund program is its liability

system. A system which promotes litigation rather than remediation of hazardous

waste sites. Before the enactment of Superfund in 1980, only 2000 lawyers specialized in environmental law. Today, this number has grown to 18,000. A boom to the

legal profession, but a boondoggle to those who actually want to clean up toxic waste

sites. Under the present system of strict, joint and several, and retroactive liability,

the EPA is provided with a multitude of Potentially Responsible Parties or PRPs

who have a strong incentive to sue each other to minimize their own liability—rather than pay for actual cleanup. In addition, lender liability has contributed to the

‘‘brownfields’’ problem which plagues many of our cities and communities across the

country. Fear of being identified as a PRP has created a situation where banks and

other lending institutions are unwilling to loan resources to the redevelopment of

many urban industrial areas.

It is obvious that Superfund in its current form does not bear any resemblance

to a ‘‘polluter pays’’ approach, but instead places fault on a vast array of individuals,

including those who were acting in an environmentally responsible manner. To me

it defies common sense to impose penalties on a company which was acting legally

at the time, but because of a subsequent change in law, is now held liable for millions of dollars. It is this type of heavy-handed behavior that restricts economic

growth and greatly diminishes employment opportunities.

Going hand-in-hand with liability reform is the need for improved remedy selection and the use of risk assessment based on sound science. Any Superfund reform

must provide for the prioritization of sites based on an actual threat to human

health and the environment, rather than exaggerating the risk based on some hypothetical model that if a child eats a handful of dirt each day for a year, there then

is the possibility of contracting cancer.

It is also essential that we give states a greater role in the Superfund program.

By nature, hazardous waste sites are local problems that, in most cases should be

addressed at the state and local levels. Reassessing the role of the federal and state

governments would allow an opportunity to provide more accountability of government expenditures on the Superfund program. In this respect, a shift in responsibility of the Superfund program does not equate to transferring the existing program to the state level. States would be better served to develop their own systems

to address hazardous waste, including the use of better risk assessments, as well

as ways to reduce transaction costs and inefficiencies of the federal program.

Finally, as someone who represents a district that is heavily reliant on the oil and

gas industry, I am extremely concerned about the possibility of reauthorizing the

Superfund taxes without Superfund reform. It is estimated that the petroleum industry is responsible for less than 10 percent of the contamination at Superfund

sites; yet the industry has historically paid over 50 percent of the taxes that support

the Trust Fund. Considering the current state of the domestic oil and gas industry,

it is patently unfair for an already beleaguered industry to pay a disproportionate

share of the costs without corresponding reform.

Mr. Chairman, I sincerely hope that we do not have to wait another six years and

hold another sixty hearings before we move forward with Superfund reform. Mr.

Chairman, I commend you on your diligence with this issue, and I look forward to

hearing from our witnesses.

PREPARED STATEMENT OF HON. JOHN SHIMKUS, A REPRESENTATIVE IN CONGRESS

FROM THE STATE OF ILLINOIS

Mr. Chairman, I want to thank you for holding this hearing on the Superfund program. As a relatively new Member of Congress, I have often heard horror stories

from other Members about how the Superfund program turns communities upside

down.

Although I know that this will sound all too familiar to the Committee, I wanted

to share with everyone how the Superfund horror story has played out in Quincy,

a small Mississippi River town in the western part of my district in Illinois.

This past February, the Environmental Protection Agency came to Quincy, Illinois

and levied a proposed order seeking $3 million from 165 local businesses. The order

alleged that these businesses contributed small (de minimis) amounts of waste to

the Adams/Quincy Landfill in the late 1960’s and 1970’s. In fact, none of the parties

11

violated any laws doing so. In many instances, these businesses paid municipal

waste management companies to dispose of this waste.

Nearly eight years after the landfill closed, EPA began working with the city and

several of the larger waste contributors to clean up the site. In 1990, EPA placed

the site on the Superfund National Priorities List (NPL), These groups have already

paid in about $6 million, and EPA estimates it will cost about $10 million to finish

the job.

This is where the proposed order comes into play. Superfund allows EPA and the

other potential responsible parties (PRPs) to seek contributions from other PRPs,

even innocent small businesses, to pay for this cleanup. The Agency has asked

Quincy’s small business owners, including such family-run businesses as bowling

alleys, dairy farms and family restaurants, to pay as much as $150,000 per company, despite the fact that these businesses did nothing wrong.

For some of these businesses, the amounts they are being asked to pay will mean

the difference between being in the black or in the red for the year—and that means

this law is costing people their jobs and their livelihood. Even worse is that even

if these parties consent to EPA’s demands, they still risk the possibility of further

lawsuits in state courts, and/or being pursued by the Illinois EPA.

Mr. Chairman, as a result of the Quincy Superfund nightmare, I was forced to

call all of the groups together, including the EPA, the city of Quincy and the small

businesses, to try to get appropriate answers from the EPA. However, I remain very

concerned about several aspects of the Superfund program:

1. The powers granted to the EPA to essentially pursue action against small businesses who have broken no laws, and who were given no fair warning of the

Superfund action;

2. Next is the process by which EPA collects Superfund information. In Quincy, the

EPA pursued only those businesses who had kept good records on waste management. This haphazard method of information gathering is very suspect;

3. Finally, and most importantly, the Superfund program has become a litigation

nightmare. Many small businesses in Quincy are feeling the squeeze of the proverbial Superfund vice, and it is costing jobs and killing small businesses, which

are the lifeblood of small towns like Quincy, Illinois.

Mr. Chairman, I want to thank you for your guidance and leadership on this important effort, and I look forward to working with you in any way possible to make

Superfund reform a reality.

To my colleagues, I want to say that it is often the struggling small businesses

like those in Quincy who have the least time and the most difficulty paying for what

the EPA judges as their share of Superfund cleanup. While it may be too late to

rescue many of the small businesses in Quincy from the Superfund nightmare, we

must act soon, as your district may be the next stop in the Superfund road show.

PREPARED STATEMENT OF HON. TOM BLILEY, CHAIRMAN, COMMITTEE ON COMMERCE

Thank you Mr. Chairman. We’re here to find out where we are with the Superfund program. I have to admit I have some strong ideas about that.

What I think is that Superfund is a statute with fundamental flaws. Its liability

scheme has created 20 years of litigation which has hurt people, particularly small

businesses, and delayed cleanup of toxic waste sites. Superfund also creates barriers

and disincentives to voluntary cleanups, State cleanups, and community redevelopment. The program’s unrealistic cleanup requirements not only create unnecessary

burdens and waste for sites on the National Priorities List, but also for other cleanups across the country. States and clean-up contractors themselves have made these

points very clear to us.

Mr. Chairman, one has only to review the extensive record that your Subcommittee has compiled to know that Superfund has been a public policy embarrassment for 20 years. The questions are: where are we now, and where should we

put our energy for change? These are not issues we can avoid.

It is time to get on with the business of cleaning up America’s toxic waste sites.

Over the next few years, the Trust Fund will run out of money. We must work with

all parties to develop a viable plan to replenish this fund. The Subcommittee should

listen carefully to today’s witnesses and to other interests.

We must focus on ways to enact meaningful reforms that make the federal program more fair, effective and efficient, that help States, and that eliminate barriers

to redevelopment and cleanup.

We may not be able to fix all of the problems with Superfund in our current political climate, but I believe strongly that we can do a better job with the program,

and that a bipartisan majority wants to fix what we can in the 106th Congress.

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PREPARED STATEMENT OF HON. JOHN D. DINGELL, A REPRESENTATIVE IN CONGRESS

FROM THE STATE OF MICHIGAN

Over the past 18 months, the General Accounting Office (GAO) has surveyed

3,036 potential National Priorities List (NPL) caliber toxic waste sites. Representative Manton and I requested this survey to determine the status of cleanups at

these state sites and to answer the important question of whether it is likely that

the site will need to be cleaned up by the federal Superfund program. This is the

most comprehensive study conducted to date that helps inform Congress about the

future size of the Superfund National Priorities List.

The GAO findings mean that there will likely be far fewer sites that will need

to be addressed in the future by the federal Superfund program than was previously

estimated.

The next Congress will need to look at the Superfund program in light of these

findings, the significant progress in cleanups completed or underway, and the extensive number of sites with all final cleanup remedies selected as reported by the GAO

recently.

Assuming adequate funding, the approximately 1,200 non-federal existing sites

are expected to have all construction activities largely completed within the next

five years. As of September 30, 1998, 585 sites had completed all construction activities. In August of this year, the GAO reported that all final cleanup remedies will

have been selected for about 95 percent of the non-federal sites and for about 67

percent of the federal sites as of September 30, 1999.

These findings suggest that comprehensive and radical reform at this point would

be unwise, counter-productive, and likely lead to a slowdown in Superfund cleanups.

While pointing to far fewer NPL sites, the GAO report does identify a significant

number of sites needing to be addressed or further evaluated by state cleanup programs. The Federal Superfund statute has played a strong and important role in

assisting state cleanups. Many state officials have informed Congress that the Federal liability scheme and the threat of NPL listing are important incentives for private parties to voluntarily clean up state sites.

This report also provides valuable information to assist the EPA in prioritizing

site evaluations and in planning for the future personnel and contracting adjustments that will be necessary.

The GAO survey provides information that bears directly on the question of how

many of the 3,036 sites are anticipated to be listed on the NPL and thus be addressed by the federal Superfund program:

• 41 percent or 1,234 sites should be deleted from EPA’s database immediately because final cleanup actions are completed or underway, no cleanup is needed,

or they have already been screened out by the EPA ranking criteria.

• Of the remainder, 232 sites (or less than 8 percent of the total) were identified

by either a state or EPA as likely to need cleanup as a Superfund NPL site.

Eight of the 232 sites are federal facilities. The 232 sites are listed in Appendix

III (pp. 320-349) of the report.

• However, of the 232 sites only 26 sites had agreement between the state and EPA

that the site was a likely candidate for listing on the Superfund NPL. Under

EPA’s current policy, the Governor of the state must generally concur in the

listing.

• In addition to the 26 sites where there was agreement, EPA officials identified

106 other sites they believed were likely candidates for the Superfund NPL.

However, for 38 percent of these sites, the state directly disagreed with EPA.

For the remainder of these sites the state did not respond or its position was

unknown.

• In addition to the 26 sites where there was agreement, state officials identified

100 other sites they believed were likely candidates for the Superfund NPL.

Over half of these sites are located in only two states—Florida and Illinois.

• Of the 232 sites cited as possible NPL candidates, 78 sites (34 percent) were identified as low, average, or unknown risk which makes their candidacy as NPL

sites less likely than if they present high health or environmental risk.

• Of the 232 sites cited as possible NPL candidates, 154 sites (66 percent) have no

identified responsible party or no responsible party whom officials believe is

able and willing to conduct cleanup activities.

• In a November 1997 press release the Association of State and Territorial Solid

Waste Management Officials stated that ‘‘the vast majority (95.6%) of sites listed on the Comprehensive Environmental Response Compensation and Liability

Act Information System (CERCLIS) do not warrant listing on the National Priorities List’’.

13

The GAO solicited information from both the states and the relevant Environmental Protection Agency (EPA) Region using detailed written questionnaires for

each of the more than 3,000 sites.

Mr. OXLEY. Mr. Fields, come on up.

Mr. FIELDS. Thank you, Mr. Chairman.

Mr. OXLEY. The Chair is now pleased to recognize our first witness, Mr. Tim Fields, Assistant Administrator of the Office of Solid

Waste and Emergency Response at U.S. EPA—and I think, as I indicated in my opening statement, your first appearance in your

new capacity before the subcommittee. So, welcome back Mr.

Fields.

STATEMENT OF HON. TIMOTHY FIELDS, JR., ASSISTANT ADMINISTRATOR, OFFICE OF SOLID WASTE AND EMERGENCY

RESPONSE, ENVIRONMENTAL PROTECTION AGENCY

Mr. FIELDS. Thank you, Mr. Chairman. It is truly a pleasure to

be here, and also, I welcome Mr. Towns as the ranking Democratic

member and the other members of the subcommittee today.

I am pleased to discuss the current status of the Superfund Program and highlight the significant progress we believe has been

made in cleaning up toxic waste sites in this country. First, we believe that we have fundamentally changed how the Superfund Program operates through three rounds of administrative reforms we

began in 1993. We have increased the pace of cleanup from 65 sites

a year to 85 construction completions a year. Ninety percent of the

Superfund sites are either construction-complete or have construction underway. Today, Superfund has 592 sites that are construction-complete, an additional 461 sites where construction is underway, and 213 sites where an emergency response or removal action

has been taken to deal with response.

We plan to have, as this chart indicates, 670 cleanups completed

at the end of fiscal year 1999, the year we are in right now. EPA

expects that more than 85 percent of the current NPL will have

been completed by the year 2005. That’s more than 1,180 sites

where construction is complete.

The construction-completion measure was adopted by the Bush

administration and continued by the Clinton administration. Three

Assistant Administrators have agreed that it is the best indicator

of Superfund Program performance. This remarkable progress that

has been documented is not relegated to a few States, but has been

done across the country.

Mr. Chairman, I am told that in Ohio we have had tremendous

success. Eighty percent of the Superfund sites have cleanup construction completed or underway in Ohio. Out of 35 Ohio NPL

sites, we intend to have 33 of 35 sites with construction completed

or underway at the end of this Congress. Not only has EPA been

able to significantly increase the number of Superfund sites

cleaned up through the administrative reform agenda, but we have

reduced the time it takes to go through the process by 20 percent—

ten years, 6 years ago; 8 years now from the time we list the site

until we get construction completion. One-hundred eleven sites that

we listed in the 1990’s are now construction-complete, having been

done in 8 years or less. Completion of these sites reflects the improved pace of cleanup in the Superfund Program.

14

Not only have we reduced time, but we have reduced costs. The

cost of cleanup has been reduced by 20 percent. Over the last 3

years alone, at more than 200 Superfund sites we have achieved

projected cost savings of more than a billion dollars in 3 years

alone. This tremendous progress has been achieved without sacrificing and providing added expense to the American taxpayer. We

have continued our Enforcement First Strategy. It has produced remarkable results over the last many years. We have achieved more

than $15.5 billion in responsible-party settlements for cleanup and

cost-recovery settlements. That is $15.5 billion that the American

taxpayer does not have to spend or does not have to be appropriated from Congress.

While EPA has been successful in implementing that reform

agenda, we have not ignored the effects Superfund liability may

have on some small parties. We have aggressively worked to

achieve 400 settlements over primarily the last 4 years, 65 percent

of those being in the last 4 years. Eighteen thousand small-volume

contributors have been settled out. We have offered $145 million in

orphan share funding to forgive past costs and oversight costs at

72 sites. So we’ve been real fair with all parties involved in the

process.

Given this remarkable turnaround, we believe that the administrative reform agenda should continue and it is currently not necessary to have comprehensive Superfund legislative reform. Comprehensive Superfund legislative reform, even if well-intentioned,

we believe would halt or delay the cleanup progress we see today.

The result is simply unacceptable to the American people and to

those in Congress, we know, as well as the administration.

We believe that Superfund legislation, if enacted, should be limited to targeted liability relief with provisions that address prospective purchasers of contaminated property, liability relief for innocent landowners, liability relief for contiguous property owners, and

liability relief for small municipal waste generators and transporters.

These liability provisions could be enacted and still allow us to

continue the pace of cleanup, provide the fairness we want, and

help in effectuating redevelopment. We believe these provisions

have achieved consistent, bipartisan support and have appeared in

the Superfund legislation that has been introduced in the last three

Congresses. These provisions would buildupon the success of the

Superfund administrative reforms without halting or delaying

cleanup.

Of equal importance is the need, we believe, to reinstate the expired Superfund taxes, which expired December 31, 1995. The

Superfund Program should have a reliable source of funding for the

cleanup of toxic waste sites in this country without shifting these

costs to the general taxpaying public.

Mr. Chairman and members of the subcommittee, we are proud

of the progress the Superfund Program has been able to achieve

over the last 6 years. We look forward to working with Congress

to buildupon that reform agenda, and in the context of the program

as we see it today, we believe that narrowly targeted Superfund

legislation is the best way to continue that agenda and protect the

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American people, and finish the job of cleaning up toxic waste sites

in this country.

Mr. Chairman, I thank you for the time and look forward to responding to questions.

[The prepared statement of Hon. Timothy Fields. Jr., follows:]

PREPARED STATEMENT OF TIMOTHY FIELDS, JR., ACTING ASSISTANT ADMINISTRATOR, OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE, ENVIRONMENTAL PROTEC- TION AGENCY

Introduction

Good afternoon, Mr. Chairman, and Members of the Subcommittee. I am pleased

to have this opportunity to appear before you to discuss the Agency’s record of accomplishments over the past several years in fundamentally improving the Superfund program.

Before addressing the successes of the current Superfund program, I believe it is

important to recognize, from the outset, Superfund’s mission. Superfund is an important, and above all, necessary program, dedicated to cleaning up our nation’s

hazardous waste sites, including those caused by the Federal government, and protecting public health and the environment. EPA has worked closely with the Agency

for Toxic Substances and Disease Registry (ATSDR) in evaluating the impacts of

these sites on public health. Superfund site impacts are real. ATSDR studies show

a variety of health effects that are associated with some Superfund sites, including

birth defects, cardiac disorders, changes in pulmonary function, impacts on the immune system (the body’s natural defense system from disease and sickness), infertility, and increases in chronic lymphocytic leukemia. EPA also works with other

federal agencies to assess the significant adverse impacts Superfund sites have had

on natural resources and the environment. Together, the efforts of these agencies,

working with EPA, provide the basis for targeting cleanups to protect public health

and the environment, and show the need for Superfund.

SUPERFUND PROGRESS

The Superfund program is making significant progress in cleaning up hazardous

waste sites and protecting public health and the environment. EPA has significantly

changed how the Superfund program operates through three rounds of administrative reforms which have made Superfund a fairer, more effective, and more efficient

program. EPA has made considerable progress in cleaning up sites on the National

Priorities List (NPL). The Agency has gone from cleaning up 65 sites per year to

cleaning up 85 sites per year. As of March 17, 1999 more than 89% of the sites on

the final NPL are either undergoing cleanup construction (remedial or removal) or

are completed:

• 592 Superfund sites have reached construction completion.

• 461 Superfund sites have cleanup construction underway;

• An additional 213 sites have had or are undergoing a removal cleanup action.

By the end of the 106th Congress EPA will have completed construction of all

cleanup remedies at approximately 61% of all non-Federal sites currently on the

NPL.

In addition, approximately 990 NPL sites have final cleanup plans approved, and

approximately 5,600 removal actions have been taken at hazardous waste sites to

stabilize dangerous situations and immediately reduce the threat to public health

and the environment. More than 30,900 sites have been removed from the Superfund inventory of potentially hazardous waste sites to help promote the economic

redevelopment of these properties.

Increasing the Pace of Cleanups

The Superfund program is making significant progress in accelerating the pace

of clean up while ensuring protection of public health and the environment. Our

analyses clearly show that Superfund cleanup durations have been reduced approximately 20%, or two years on the average. Almost three times as many Superfund

sites have had construction completed in the past six years than in all of the prior

years of the program combined. In fact, in large part because of our administrative

reforms, EPA will have completed construction at more than 85% of the sites on the

current NPL by 2005.

The accelerated pace of cleanup is demonstrable. In only two years, FY 1997 and

FY 1998, EPA completed construction at 175 sites—more than during the entire

first 12 years of the program (149 sites).

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• Seventy-two percent (128) of the sites are designated enforcement lead, demonstrating the success of both the ‘‘enforcement first’’ policy and the numerous

enforcement reforms.

• One hundred and eleven of these sites were added to the NPL during the 1990s.

Completion of these sites in less than eight years reflects improvements in the

pace of Superfund cleanups.

Private Party Funding

EPA’s ‘‘Enforcement First’’ strategy has resulted in responsible parties performing

or paying for approximately 70% of long-term cleanups, thereby conserving the

Superfund Trust Fund for sites for which there are no viable or liable responsible

parties. This approach has saved taxpayers more than $15.5 billion to date—more

than $13 billion in response settlements, and nearly $2.5 billion in cost recovery settlements.

Protecting Human Health and the Environment

The accomplishments in protecting human health and the environment are significant. Environmental indicators show that the Superfund program continues

making progress in hazardous waste cleanup, reducing both ecological and human

health risks posed by dangerous chemicals in the air, soil, and water. The Superfund program has cleaned over 132 million cubic yards of hazardous soil, solid waste

and sediment and over 341 billion gallons of hazardous liquid-based waste, groundwater, and surface water. In addition, the program has supplied over 350,000 people

at NPL and non-NPL sites with alternative water supplies in order to protect them

from contaminated groundwater and surface water.

ADNMSTRATIVE REFORMS

Through the commitment of EPA, State, and Tribal site managers, other Federal

agencies, private sector representatives, and involved communities, EPA has made

Superfund faster, fairer, and more efficient through three rounds of administrative

reforms. Several years of stakeholder response indicates that EPA’s Superfund Reforms have already addressed the primary areas of the program that they believe

needed improvement. EPA remains committed to fully implementing the administrative reforms and refining or improving them where necessary. EPA will be releasing its Annual Report on the status of Administrative Reforms for fiscal year (FY)

1998 within the next several weeks. Below are some of the highlights from the 1998

Annual Report.

Remedy Review Board

EPA’s National Remedy Review Board (the Board) is continuing its targeted review of complex and high-cost cleanup plans, prior to final remedy selection, without

delaying the overall pace of cleanup. Since the Board’s inception in October 1995,

it has reviewed a total of 33 site cleanup decisions, resulting in estimated cost savings of approximately $43 million.

Updating Remedy Decisions

In addition to the work of the Board, EPA has achieved great success in updating

cleanup decisions made in the early years of the Superfund program to accommodate changing science and technology. In fact, the Updating Remedy Decisions reform is one of EPA’s most successful reforms, based on its frequent use and the

amount of money saved. After three years of implementation, more than $1 billion

in future cost reductions are estimated as a result of the Agency’s review and update of remedies at more than 200 sites. It is important to stress that the future

cost reductions described above can be achieved without sacrificing the protection

of public health, and the current pace of the program.

Remedy Selection

The Superfund program is selecting remedies that require treatment in fewer instances, focusing on treatment of toxic hot spots. Treatment remedies were included

in less than 50% of the Records of Decision completed in fiscal year 1997. Even

within the current statutory framework providing for a preference for treatment of

waste and permanent solutions to the maximum extent practicable, costs of cleanups are decreasing dramatically because of a number of factors, including: the use

of presumptive remedies; the use of reasonably anticipated future land use determinations, which allow cleanups to be tailored to specific sites; the use of a phased

approach to defining objectives and methods for ground water cleanups. As a result

of these factors, EPA has reduced the cost of cleanup by approximately 20 percent.

17

Promoting Fairness Through Settlements

EPA has addressed the concerns of stakeholders regarding the fairness of the liability system by increasing the use of the Agency’s settlement authorities. EPA has

negotiated more than 400 de minimis settlements with over 18,000 small volume

contributors (66% of these in the last four years), protecting these parties from expensive private contribution suits. EPA continues to use its settlement authority to

remove small volume waste contributors from the liability system, responding to the

burden third-party litigation can place on parties that made a very limited contribution to the pollution at a site. EPA continues to step in to prevent the big polluters

from dragging untold numbers of the smallest ‘‘de micromis’’ contributors of waste

into contribution litigation by publicly offering to any de micromis party $0 (i.e., nocost) settlements that would provide protection from lawsuits by other PRPs. The

real success of this approach is to be measured by the untold number of potential

lawsuits that have been discouraged.

Orphan Share Compensation

Since fiscal year 1996, EPA has offered orphan share compensation of over $145

million at 72 sites to responsible parties willing to negotiate long-term cleanup settlements. EPA will continue the process at every eligible site. Through 1998, EPA

has collected and placed $399 million in 115 interest bearing special accounts for

site specific future work. In addition, over $69 million in interest has accrued in

these accounts. This reform ensures that monies recovered in certain settlements

are directed to work at a particular site. At a number of sites, this money can make

a great difference in making settlements work. In FY98, EPA set aside and then

spent more than $40 million of Superfund response money in new settlements for

mixed work or mixed funding.

REAUTHORIZATION

The success of EPA’s administrative reforms and the resulting improvements in

the Superfund program have fundamentally altered the need for Superfund reauthorization legislation. In the 103rd Congress, the Clinton Administration proposed

a five-year reauthorization of Superfund that reflected program needs at that point

in time. When Congress did not pass Superfund legislation, EPA implemented a series of reforms administratively. Accordingly, the legislative provisions proposed by

the Administration in the 103rd Congress are now very out of date, and the fiveyear authorization period that would have been provided in that bill has now ended.

Many of the provisions in the bill, and in other Superfund reform bills, were designed to fix problems that have been addressed through the Superfund Administrative Reforms. As the result of the progress made in cleaning up NPL sites in recent

years, and the program improvements resulting from administrative reforms, there

is no longer a need for comprehensive legislation. Comprehensive legislation could

actually delay clean ups, create uncertainty and litigation, and undermine the current progress of cleaning up Superfund sites.

Legislation to support the President’s Budget is needed to reinstate the Superfund

taxes, and provide EPA with access to mandatory spending. As part of Superfund

reauthorization, the Administration would support targeted liability relief for qualified parties that builds upon the current success of the Superfund program. The Administration would support provisions that address:

• prospective purchasers of contaminated property

• innocent landowners

• contiguous property owners, and

• small municipal waste generators and transporters

OTHER SUPERFUND PROGRAM ACCOMPLISHMENTS

States

EPA continues to work with States and Indian tribes as key partners in the cleanup of Superfund hazardous waste sites. EPA is continuing to increase the number

of sites where States and Tribes are taking a lead role in assessment and cleanup

using the appropriate mechanisms under the current law. With the May 1998 release of the ‘‘Plan to Enhance the Role of States and Tribes in the Superfund Program,’’ the Superfund program is expanding opportunities for increased State and

tribal involvement in the program. Fourteen pilot projects with States and Tribes

have been initiated through this plan.

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Community Involvement

The Superfund program is committed to involving citizens in the site cleanup

process. EPA strives to create an open decision-making process to clean up sites

that fully involves the communities, provides the community timely information,

and improves the community’s understanding of the potential health risks at hazardous waste sites. This is accomplished through outreach efforts, such as holding

public meetings and distributing site-specific fact sheets. It has been enhanced

through the successful implementation of reforms such as our EPA Regional Ombudsmen who continue to serve as a direct point of contact for stakeholders to address their concerns at Superfund sites, our Internet pages which continue to provide information to our varied stakeholders on issues related to both cleanup and

enforcement, as well as our Technical Assistance Grants (TAGs), Community Advisory Groups (CAGs), Restoration Advisory Boards (RABs) and Site-specific Advisory

Boards (SSABs).

The TAG program provides eligible community groups with financial assistance

to hire technical consultants to assist them in understanding the problems and potential solutions to the contamination problems. EPA has awarded 202 TAGs to various groups since the program’s inception in 1988. The Agency plans to publish revisions to the TAG regulation in the Spring of 1999 intended to further simplify the

TAG program.

The CAG serves as a public forum for representatives of diverse community interests to present and discuss their needs and concerns related to the Superfund site

with Federal, State, Tribal and local government officials. The number of sites with

CAGs increased by over 50 percent before the CAG program was officially taken out

of the pilot stage. In FY98, 14 new CAGs were created at non-federal facility sites,

bringing the total to 47.

Community Involvement at Federal Facilities

The Superfund Federal facilities response program recognizes that meaningful

public participation is dependent on the various stakeholder groups having the capacity to participate effectively. The program has entered into partnerships and

awarded cooperative agreement grants to State, local, tribal associations, and community based organizations. The grants focus on training for impacted communities,

participation of citizens on advisory boards, access to information and implementation of the Federal Facility Environmental Restoration Dialogue Committee

(FFERDC) principles. These grants offer the opportunity to leverage precious resources, build trust and reach a wider audience.

The Superfund Federal facilities response program is a strong proponent of involving communities in the restoration decision-making process and recognizes that

input from Restoration Advisory Boards (RAB) and Site-Specific Advisory Boards

(SSAB) has been essential to making response decisions and, in some cases, reducing costs. Increasing community involvement, Restoration Advisory Board/Site-Specific Advisory Board support (RAB/SSAB) and partnering with states, tribes and

other stakeholders is a high priority activity for FFRRO. There are over 300 RABs

and 12 SSABs throughout the country.

REVITALIZING AMERICA’S LAND

Brownfields

EPA not only cleans up toxic waste sites through the Superfund program but also

helps communities clean up and develop less contaminated brownfields sites. The

Brownfields Initiative plays a key role in the Administration’s goal of building

strong and healthy communities for the 21st century. The Initiative represents a

comprehensive approach to empowering States, local governments, communities,

and other stakeholders interested in environmental cleanup and economic redevelopment to work together to prevent, assess, safely clean up, and sustainably reuse

brownfields. Brownfields are abandoned, idled, or under-used industrial and commercial properties where expansion or redevelopment is complicated by real or perceived contamination. Brownfields sites exist in this country, affecting virtually

every community in the nation.

The General Accounting Office has estimated that there are over 450,000

brownfields properties across America. The Administration believes strongly that

environmental protection and economic progress are inextricably linked. Rather

than separate the challenges facing these communities, our brownfields initiative

seeks to bring all parties to the table—and to provide a framework for them to seek

common ground on the whole range of challenges: environmental, economic, legal

and financial. The EPA brownfields pilot grants are forming the basis for new and

more effective partnerships. In many cases, city government environmental specialVerDate 27-JAN-2000 09:15 Feb 03, 2000 Jkt 010199 PO 00000 Frm 00021 Fmt 6633 Sfmt 6621 E:\HEARINGS\55642 txed02 PsN: txed02
19

ists are sitting down together with the city’s economic development experts for the

first time. Others are joining in—businesses, local residents, community activists.

Brownfields Assessment Pilots

The Brownfields Assessment Pilots form a major component of the Brownfields

Initiative since its announcement in a little more than 4 years ago. Since that time,

significant environmental results had already been achieved. The Agency has selected 250 assessment pilots funded at up to $200,000 to local communities across

the Nation to chart their own course towards revitalization. These pilots are seen

as catalysts for change in local communities, and often spur community involvement

in local land use decision-making. These pilots, along with targeted state and EPA

efforts, resulted in the assessment of 398 brownfields properties, cleanup of 71 properties, redevelopment of 38 properties, and a determination that 273 properties did

not need additional cleanup.

Revolving Loan Funds

We are also building on another aspect of our program which began in 1997. This

program will award a ‘‘second-stage’’ type of brownfields pilot. Those pilots known

as the Brownfields Cleanup Revolving Loan Fund (BCRLF) Pilots are designed to

enable eligible States, cities, towns and counties, Territories, and Indian Tribes to

capitalize revolving loan funds to safely cleanup and sustainably reuse brownfields.

EPA’s goal is to select BCRLF pilots that will serve as models for other communities

across the nation. In the 1997 fiscal year, EPA’s budget for brownfields included $10

million to capitalize BCRLFs. That early first round of BCRLF pilots is maturing.

Twenty-three (23) pilots are now in various stages of development. This year we are

planning to make a second round of BCRLF pilot awards. We have determined that

these new pilots would benefit from an increased capitalization and we are planning

to fund approximately 63 new pilots in fiscal year 1999 at up to $500,000 each. The

application deadline recently closed on March 8, 1999, and we will be considering

these applications in regional panel and Headquarters evaluations and reviews. The

Agency anticipates announcement of the award of these new pilots by June. Pilot

applicants are being asked to demonstrate evidence of a need for cleanup funds,

ability to manage a revolving loan fund, ability to ensure adequate cleanups, and

a commitment to creative leveraging of EPA funds with public-private partnerships

and matching funds/in-kind services.

Showcase Communities

The Brownfields Showcase Communities project is another component of the

Brownfields Initiative. It represents a multi-faceted partnership among federal

agencies to demonstrate the benefits of coordinated and collaborative activity on

brownfields in 16 Brownfields Showcase Communities. The designated Showcase

Communities are distributed across the country and vary in size, resources, and

community type.

Job Training

To help local citizens take advantage of the new jobs created by assessment and

cleanup of brownfields, EPA began another demonstration pilot program—the

Brownfields Job Training and Development Demonstration Pilot program in 1998.

Last year we awarded 11 pilots to applicants located within or near one of our assessment pilot communities. Colleges, universities, non-profit training centers, and

community job training organizations, as well as states, Tribes and communities

were eligible to apply. This year we are planning to award an additional 10 pilots.

The Brownfields Initiative has also generated significant economic benefit for

communities across America. By the end of fiscal year 1998, 410 cleanup jobs and

2,110 redevelopment jobs had been created as a result of the program. Pilot communities had already reported a leveraged economic impact of over $1.1 billion.

Recycling Superfund Sites

Contaminated sites may be an economic drain on local economies, can lower property values, and can act as a disincentive for new industries to move into communities. Once cleaned up, many Superfund sites have gone on to new, productive, and

economically beneficial reuse. We believe that there are opportunities for many such

sites. While some sites are not suitable for unrestricted reuse, many can be ‘‘recycled.’’ Many NPL sites are valuable properties—they reside near waterways, railroads or major transportation routes. They are in parts of town ready for redevelopment.

A logical outgrowth of the Brownfields redevelopment work is an increased emphasis on the reuse of Superfund sites. Recycled Superfund sites may be redeveloped for a variety of uses, including commercial/industrial, recreational, and ecologiVerDate 27-JAN-2000 09:15 Feb 03, 2000 Jkt 010199 PO 00000 Frm 00022 Fmt 6633 Sfmt 6621 E:\HEARINGS\55642 txed02 PsN: txed02
20

cal projects. Sites are being cleaned up across the Nation. Major redevelopment and

reuse is occurring.

Successful reuse is being demonstrated at the Industriplex site, in Woburn, Massachusetts. Through a private/public partnership this site will become a regional

transportation center with over 200,000 square feet of retail space and potentially

over 750,000 square feet of hotel and office space. An open land and wetlands preserve will also be created as a part of the ‘‘recycling’’ of this site. Another example

of reuse at Superfund sites is the Anaconda Smelter NPL site, in Anaconda, Montana, which has become the Old Works Golf Course, a world-class Jack Nicklaus golf

course. At other Superfund sites, major national corporations, including Netscape,

Target stores, Home Depot stores and McDonalds, have established businesses.

Sites have been redeveloped into athletic fields, community parks and wetland and

habitat preserves as well.

Preliminary analyses indicate that more than 150 sites are in actual or planned

reuse, supporting thousands of jobs and generating revenue for States and local

communities and creating thousands of acres of new recreational and ecological

green space. EPA continues to make strides in spurring the beneficial reuse of

Superfund sites.

Barriers to Reuse

At some sites, the potential threat of CERCLA liability may in some circumstances be a barrier to the reuse of contaminated sites. EPA is continuing its

efforts to negotiate prospective purchaser agreements and issue comfort/status letters in order to clarify CERCLA liability at sites and facilitate reuse of contaminated properties. Through FY98, EPA has entered into 85 Prospective Purchaser

Agreements (PPAs) to facilitate beneficial reuse and has also issued over 250 comfort/status letters in order to clarify Federal Superfund interest in sites.

In the summer and fall of 1998, EPA undertook a survey effort to gather information on the impacts of the PPA process. Preliminary survey data (for PPAs completed through June 1998) indicate that redevelopment projects cover over 1252

acres, or 80% of the property secured through PPAs. EPA regional personnel estimate that nearly 1600 short-term jobs (e.g., construction) and over 1700 permanent

jobs have resulted from redevelopment projects associated with PPAs. An estimated

$2.6 million in local tax revenue for communities nationwide have resulted from

these projects. In addition, EPA regional staff estimate that PPAs have resulted in

the purchase of over 1500 acres of contaminated property and have spurred redevelopment of hundreds of thousands of adjacent acres.

Federal Facility Redevelopment

Through EPA’s Base Realignment and Closure (BRAC) program over 850 base closure documents have been reviewed at 108 major closing military bases. These

BRAC documents articulate the environmental suitability of the property for lease

or transfer.

Wurtsmith Air Force Base, located on more than 5,000 acres in northeast Michigan, stood ready for more than 70 years to support strategic bombing operations

worldwide. In this capacity, the base managed supplies of aircraft fuel, mechanical

cleansers, solvents, and paints, some leaked into the soil and subsequently the

groundwater.

The decision to close the base was made in 1993. A Base Closure Team (BCT),

consisting of representatives from EPA, the Air Force, and the Michigan Department of Environmental Quality was formed to clean up the site. In an effort to expedite cleanup and minimize cost, an innovative technology, in situ enhanced bioremediation, was implemented to treat the contaminated groundwater. Using this

innovative technology, the BCT shaved more than $500,000 and four years off the

original cleanup estimate of $1.5 million and 10 years.

To enhance economic redevelopment, the BCT focused its attention on reuse options for the base. Working with the Northeast Michigan Community Service Agency, the BCT enabled approximately 150 low-income families to move into base structures, which replaced substandard housing in six counties. The BCT earned national

recognition for this unique reuse plan.

Additional reuse options for the base were determined and implemented. A portion of the base property was leased to companies that brought more than 1,000 jobs

to the area, helping to boost the community’s economy. Another reuse accomplishment that saved both time and money was the transfer of airport runways for immediate public use to the Oscoda-Wurtsmith Airport Authority.

21

FUTURE SCOPE OF SUPERFUND PROGRAM

EPA will continue to work with all stakeholders to leverage resources and to assure the successful cleanup of this nation’s hazardous waste sites. We will continue

to employ administrative reforms to ensure a fair, effective, and efficient Superfund

program. The Superfund program is cleaning up 85 sites per year and in fiscal year

1999 plans to exceed the Agency target of 650 construction completions—one year

earlier than originally expected. In addition, the Administration recently announced

our target of 925 sites ‘‘construction completed’’ by the end of 2002. By 2005, EPA

expects to complete construction at 1180—85% of the current NPL. At these construction completion sites, EPA still has the responsibility for post-construction activities such as 5-year reviews and groundwater pump and treat and oversight of

PRP long-term operations and maintenance.

State/Federal Partnership

EPA/State relationships in the Superfund program have evolved into flexible

working partnerships that assign sites responsibilities in a mutually supportive

way. EPA has provided the States with nearly $20 million annually for core program support. Where States are interested in taking the lead at NPL sites we provide the funding (roughly $100 million annually, in fiscal years 1997 and 1998) for

those activities. Another $30-$40 million annually is provided for site assessment,

voluntary cleanup program (VCP) support, and other program activities. Total funding provided to States typically exceeds $150 million per year. A recent GAO study

report supports the position that CERCLA and a strong Federal cleanup program

are important to the States—

‘‘. . . a number of stakeholders, including state officials, said that a lessening of

the Superfund program’s more rigorous cleanup requirements or liability standards could negatively affect the State programs.—‘‘State Cleanup Practices’’ report 99-39, December 1998—

States often and regularly ask for EPA assistance when their technical capabilities fall short, their funding is inadequate, enforcement cases too complex, or their

ability to respond with staff or contract support is insufficient.

The GAO estimates roughly 3000 sites pose risks serious enough, based on site

inspections to be potentially eligible for NPL inclusion and are classified as ‘‘awaiting a National Priorities List decisions.’’ Of these the GAO concluded 1,800 of these

sites still appear eligible for NPL while the remaining 1,234 are unlikely to become

eligible for various reasons.

We do not know now how many more sites will need to be listed on the NPL. We

will focus our listing activities on sites when states request a listing, when there

are recalcitrant PRPs or when cleanup is needed and its not occurring satisfactorily.

We have been using and will continue to use these factors to guide our listing decisions. Based on what we know at this time, we do not expect to list more than 40

sites this year.

Expiration of Tax

The Superfund tax authority expired December 31, 1995, discontinuing further

tax collections. The President’s fiscal year (FY) 2000 Budget requests reinstatement

of all Superfund taxes (including excise taxes on petroleum and chemicals, and a

corporate environmental tax). The Trust Fund balance (unappropriated balance)

was roughly $2.1 billion at the end of fiscal year 1998. The Trust Fund balance will

be approximately $1.3 billion at the end fiscal year 1999.

CONCLUSION

The Superfund program has been fundamentally improved through administrative

reforms and is faster, fairer, and more efficient. The significant progress the Clinton

Administration has achieved in protecting public health and the environment

through the cleanup of toxic waste sites must not be undermined by the passage

of Superfund legislation based upon outdated information and ideas. EPA’s administrative reforms, and the resulting Superfund cleanup progress, have eliminated the

need for comprehensive Superfund legislation. We look forward to working with

Congress to reinstate the Superfund taxes and enact the narrowly targeted Superfund legislation that I described in my testimony that builds upon the success of

administrative reforms.

Mr. Chairman, thank you for this opportunity to address the Subcommittee. I

would be pleased to answer any questions you or the other Members may have.

Mr. OXLEY. Thank you, Mr. Fields, again, for your testimony,

and let me begin with some questions.

22

What I want to make sure is that everyone understands the difference between the applicability of the Superfund statute and implementation of the Federal program by EPA. The States take on,

lead, new sites. That is probably a good idea. You do not need to

pour money into EPA for years when States are closer to the problem and fully capable.

Unfortunately, the Superfund statute does not just affect sites on

the Federal National Priorities List. So, Mr. Fields, what I want to

do is talk about various areas of the Superfund statute, whether

their application is limited to just the NPL. First, I want to cover

the liability provisions in relationship to voluntary cleanups and

brownfields sites which are not on the National Priorities List.

Robert Inghram, president of the National Conference of Black

Mayors, wrote in 1995, ‘‘Far too much money is being spent on lawyers and not nearly enough on cleanup. Our primary concern is

that tens of thousands of abandoned properties in urban areas lie

contaminated and unproductive because developers and local businesses, they are getting pulled into Superfund’s far-reaching liability system. Congress must act this year to fundamentally reform

the failed liability system. Without these changes, these properties

will lie dormant, and critical and economic revitalization opportunities will be lost for cities nationwide.’’

The General Accounting Office stated the same proposition in the

1996 report entitled, ‘‘Barriers to Brownfields Redevelopment.’’ Is

it not correct, Mr. Fields, that Superfund’s liability provisions have

broad sweep and can apply at tens of thousands of sites not on the

NPL?

Mr. FIELDS. Yes, that is correct. The Superfund liability provisions go beyond the 1,387 sites on the Superfund National Priorities List and do affect activities at voluntary cleanup sites,

brownfields sites, and other sites as well.

Mr. OXLEY. So, those folks who are interested in, the opening

statements talking about, brownfields redevelopment need to understand the applicability of the Superfund liability scheme to the

brownfields issue. Is that correct?

Mr. FIELDS. Yes, they do need to understand that, and we believe

that those liability provisions have been very effective in helping

put forth a great brownfields agenda over the last 4 years.

Mr. OXLEY. Is it also the case with the natural resources damages provision that they can apply at sites beyond the NPL? Can

NRD claims be brought after a construction-complete?

Mr. FIELDS. Natural resource damages claims can be brought

after construction-complete, yes, that is correct.

Mr. OXLEY. Ms. Kerbawy, representing ASTSWMO, in her testimony on behalf of the State cleanup officials, says that while ‘‘the

States are addressing the large universe of non-NPL sites, the statute still maintains a role for EPA in theory. Although the majority

of those sites, typically, brownfields sites, will never be placed on

the NPL, they are still subject to CERCLA liability, even after the

site has been cleaned up to State standards.’’ Is that correct, that

Superfund liability applies even after the site has been cleaned up

to State standards?

Mr. FIELDS. I want to be very clear about this. We, obviously,

think the States are doing a great job in implementing their volVerDate 27-JAN-2000 09:15 Feb 03, 2000 Jkt 010199 PO 00000 Frm 00025 Fmt 6633 Sfmt 6602 E:\HEARINGS\55642 txed02 PsN: txed02
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untary cleanup programs. Forty-four States have those programs.

We have been very supportive of those States. We have never intervened in a State cleanup to date, except when a State has requested that the Federal Government come in. We believe in and

we endorse those State programs. We have funded them for the

last 3 years at a tune of $10 million to $15 million a year. We want

to support them. We have entered into memoranda of agreement

with 11 States to date to agree on deferring to the States’ authority

in implementing effective, voluntary, cleanup programs. We’re discussing agreement with eight additional States.

So, we want to do all we can to assure the regulated community

and the States that we want to defer to them for the vast majority

of those sites that are not covered on the NPL, but are being covered by voluntary cleanup programs implemented at the State

level. We think that fear is there, but the reality is we have never

intervened. We don’t jump in when a State is providing oversight

for a cleanup in that State. The instance it has occurred is when

a State requested that we come in.

Mr. OXLEY. Let me quote from Ms. Kerbawy also in her testimony. She says, ‘‘The potential for EPA to overfile and for thirdparty lawsuits under CERCLA is beginning to cause many owners

of potential brownfields sites to simply mothball the properties, and

that States should be able to release sites from liability once a site

has been cleaned up to State standards.’’

Do you agree that the issue of release from Federal liabilities is

an issue that is not specifically related to the status of the NPL

sites?

Mr. FIELDS. I agree that some have fear about having complete

finality on releases from liability for sites that are not on the NPL.

We are trying to do all that we can to work to assure people that

that has not been our history. We do not get involved, and we want

to try to work through memorandum of agreements, comfort letters, and other mechanisms to provide assurance, to the regulated

community that we do not intend to overfile, or intervene in those

cases where we have effective State programs overseeing cleanup.

Mr. OXLEY. Thank you. My time has expired. Let me now recognize the gentleman from New York, the ranking member of the

subcommittee, Mr. Towns.

Mr. TOWNS. Thank you very much, Mr. Chairman.

Mr. Fields, you indicated that EPA has worked with the Agency

for Toxic Substances and Disease Registry to evaluate health impacts of Superfund sites. If you don’t have information with you

today, could you provide this committee with a summary of those

studies?

Mr. FIELDS. Yes, we will be happy to provide that documentation

for the record, Mr. Towns. We do have data on the health effects

studies that have been done by ATSDR at Superfund sites. They

have evaluated a lot of our sites on the current National Priorities

List. The ATSDR in their studies indicate that 80 percent of those

Superfund sites have public health exposures. That means that

people and children who live around 80 percent of those sites have

been exposed to contamination from one or more media—air, water,

or toxic waste. They have done health assessments at those sites

to have documented instances of leukemia, and low-birth weight,

24

and asthma that they believe could be attributed to contamination

around these Superfund sites.

We will be happy to provide more detail for the record, but we

believe that Superfund sites do, in fact, pose a significant public

health threat that needs to be addressed, and that is why the

Superfund Program is around. EPA also conducts emergency actions. We have done 5,600 plus emergency response actions since

the program began because of significant, immediate, public health

threats that need to be addressed in these communities.

[The information referred to follows:]

25

26

ATSDR PUBLIC HEALTH ASSESSMENTS

FOREWORD

The Agency for Toxic Substances and Disease Registry, ATSDR, is an agency of

the U.S. Public Health Service. It was established by Congress in 1980 under the

Comprehensive Environmental Response, Compensation, and Liability Act, also

known as the Superfund law. This law set up a fund to identify and clean up our

country’s hazardous waste sites. The Environmental Protection Agency. EPA, and

the individual states regulate the investigation and clean up of the sites.

Since 1986, ATSDR has been required by law to conduct a public health assessment at each of the sites on the EPA National Priorities List. The aim of these evaluations is to find out if people are being exposed to hazardous substances and, if

so, whether that exposure is harmful and should be stopped or reduced. (The legal

definition of a health assessment is included on the inside front cover.) If appropriate, ATSDR also conducts public health assessments when petitioned by concerned individuals. Public health assessments are carried out by environmental and

health scientists from ATSDR and from the states with which ATSDR has cooperative agreements.

Exposure: As the first step in the evaluation. ATSDR scientists review environmental data to see how much contamination is at a site, where it is, and how people

might come into contact with it. Generally, ATSDR does not collect its own environmental sampling data but reviews information provided by EPA, other government

agencies, businesses, and the public. When there is not enough environmental information available, the report will indicate what further sampling data is needed.

Health Effects: If the review of the environmental data shows that people have

or could come into contact with hazardous substances, ATSDR scientists then evaluate whether or not there will be any harmful effects from these exposures. The report focuses on public health, or the health impact on the community as a whole,

rather than on individual risks. Again, ATSDR generally makes use of existing scientific information, which can include the results of medical, toxicologic and epidemiologic studies and the data collected in disease registries. The science of environmental health is still developing, and sometimes scientific information on the

health effects of certain substances is not available. When this is so, the report will

suggest what further research studies are needed.

Conclusions: The report presents conclusions about the level of health threat, if

any, posed by a site and recommends ways to stop or reduce exposure in its public

health action plan. ATSDR is primarily an advisory agency, so usually these reports

identify what actions are appropriate to be undertaken by EPA, other responsible

parties, or the research or education divisions of ATSDR. However, if there is an

urgent health threat, ATSDR can issue a public health advisory, warning people of

the danger. ATSDR can also authorize health education or pilot studies of health

effects, full-scale epidemiology studies, disease registries, surveillance studies or research on specific hazardous substances.

Interactive Process: The health assessment is an interactive process. ATSDR solicits and evaluates information from numerous city, state and federal agencies, the

companies responsible for cleaning up the site, and the community. It then shares

its conclusions with them. Agencies are asked to respond to an early version of the

report to make sure that the data they have provided is accurate and current. When

informed of ATSDR’s conclusions and recommendations, sometimes the agencies will

begin to act on them before the final release of the report.

Community: ATSDR also needs to learn what people in the area know about the

site and what concerns they may have about its impact on their health. Consequently, throughout the evaluation process, ATSDR actively gathers information

and comments from the people who live or work near a site, including residents of

the area, civic leaders, health professionals and community groups. To ensure that

the report responds to the community’s health concerns, an early version is also distributed to the public for their comments. All the comments received from the public

are responded to in the final version of the report.

Comments: If, after reading this report, you have questions or comments, we encourage you to send them to us.

Letters should be addressed as follows:

Attention: Chief, Program Evaluation, Records, and Information Services Branch,

Agency for Toxic Substances and Disease Registry, 1600 Clifton Road (E-56), Atlanta. GA 30333.

Region 1

CONNECTICUT

Barkhamsted-New Hartford Landfill, Barkhainsted, Litchfield County

27

Connecticut Correctional Institution (a/k/a Somers Correctional Facility), Somers,

New Haven County

Linemaster Switch Corporation, Woodstock, Windhain County

Old Southington Landfill, Southington, Hartford County

Raymark Industries, Stratford, Fairfield County

Revere Textile Prints Corporation, Sterling, Windham County

Starr Property, Enfield, Hartford County

U.S. Naval Submarine Base New London, Groton, New London County

MAINE

West Site Hows Corner, Plymouth, Penobscot County

MASSACHUSETTS

Blackburn and Union Privileges, Walpole, Norfolk County

Groveland Wells, Groveland, Essex County

Hocomonco Pond, Westborough, Worcester County

Industri-Plex, Wobum, Middlesex County

Iron Horse Park, Billerica, Middlesex County

New Bedford Site, New Bedford, Bristol County

Nyanza Chemical Waste Dump, Ashland, Ashland County

PSC Resources, Palmer, Hampden County

Silresim Chemical Corporation, Lowell, Middlesex County

Sullivan’s Ledge, New Bedford, Bristol County

U.S. Army Materials Technology Laboratory, Watertown, Middlesex County

Wells G and H, Wobum, Middlesex County

NEW HAMPSHIRE

Beede Waste Oil, Plaistow Rockingham County

Dover Municipal Landfill, Dover, Stratford County

New Hampshire Plating Company, Merrimack, Hillsborough County

Savage Municipal Water supply (Interim), Milford, Hillsborough County

Somersworth, Municipal Landfill, Somersworth, Stratford County

Tibbetts Road, Barrington, Strafford County

RHODE ISLAND

West Kingston Town Dump and University of Rhode Island (Plains Rd) Disposal

Area (URI), South Kingston, Washington County

VERMONT

None available currently.

Region 2

NEW JERSEY

A.O. Polymer, Sparta Township, Sussex County

Bridgeport Rental and Oil Service, Logan Township, Gloucester County

CPS Chemical/Madison Industries, Old Bridge Township, Middlesex County

Curcio Scrap Metal, Saddle Brook Township, Bergen County

Delilah Road, Egg Harbor Township, Atlantic County

Garden State Cleaners and South Jersey Clothing Company, Minotola, Atlantic

County

Global Landfill, Old Bridge, Middlesex County

Horseshoe Road, Sayreville, Middlesex County

Jackson Township Landfill, Jackson Township, Ocean County

M&T DeLisa Landfill, Ocean Township, Monmouth County

Mannheim Avenue Dump Site, Gallowav Township, Atlantic County

Montclair/West Orange Radium, Montclair/West Orange, Essex County

Pomona Oaks Well Contamination, Galloway Township, Atlantic County

Sayreville Landfill, Sayreville, Middlesex County

Tabernacle Drum Dump, Tabernacle Township, Burlington County

NEW YORK

Batavia Landfill, Batavia, Genessee County

C&J Disposal, Town of Eaton, Madison County

Carroll and Dubies Sewage Disposal, Port Jervis, Orange County

Circuitron Corporation, Fanningdale, Nassau County

Colesville Municipal Landfill, Colesville, Broome County

Endicott Village Wellfield (a/k/a Ranny Well), Endicott, Broome County

Facet Enterprises, Elmira, Chemung County

Genzale Plating Company, Franklin, Nassau County

28

Griffiss Air Force Base, Rome, Oneida County

Hertel Landfill, Plattekill, Ulster County

Hooker Chemical/Ruco Polymer, Hicksville, Nassau County

Hooker-102nd Street, Niagara Falls, Niagara County

Islip Municipal Sanitary Landfill (a/k/a Blvdenburgh Road Landfill), Hauppauge,

Suffolk County

Johnstown City Landfill, Johnstown, Fulton County

Jones Chemical, Inc., Caledonia, Livingston County

Li Tungsten Corporation, Glen Cove, Nassau County

Mattiace Petrochemical, City of Glen Cove, Nassau County

Niagara County Refuse, Town of Wheatfield, Niagara County

Onondaga Lake, Syracuse, Onondaga County

Pasley Solvents & Chemicals Inc., Garden City, Nassau County

Pfohl Brothers Landfill, Cheektowaga, Erie County

Pollution Abatement Services (PAS), City of Oswego, Oswego County

Port Washington Landfill, North Hempstead, Nassau County

Preferred Plating Corporation, East Fanningdale, Suffolk County

Ramapo Landfill, Ramapo, Rockland County

Robintech Inc./ National PiDe Co., Vestal, Broome County

Rosen Site (a/k/a Rosen Brothers Site), Cortland, Cortland County

Rowe Industries Groundwater Contamination, Sag Harbor, Suffolk County

Rowe Industries Groundwater Contamination, Sag Harbor, Suffolk County

Sarney Farm, Amenia, Duchess County

Sealand Restoration, Lisbon, St. Lawrence County

Sinclair Refinery, Town of Wellsville, Allegany County

Solvent Savers, Lincklaen, Chenango County

Syosset Landfill, Oyster Bay, Nassau County

Tri-Cities Barrel Company, Inc., Fenton, Broome County

PUERTO RICO

Fibers Public Supply Wells, Jabos, Guayama County

Frontera Creek, Rio Abajo, Humacao County

V&M/Albaladejo Norte Ward, Vega Baja, Vega Baja County

Vega Baja Solid Waste Disposal, Rio Abajo Ward/La Trocha, Vega Baja County

VIRGIN ISLANDS

Bovoni Dump, St. Thomas, St. Thomas County

Tutu Wellfield, St. Thomas, St. Thomas County

Region 3

DELAWARE

Koppers Company Facilities Site, Newport, New Castle County

MARYLAND

Limestone Road Site, Cumberland, Allegany County

Mid-Atlantic Wood Preservers, Harmans, Anne Arundel County

Naval Air Station Patuxent River, St. Mary’s County

Naval Surface Warfare Center, Indian Head Division (NSWC-IHDIV), (a/k/a Indian

Head Naval Surface Warfare Center), Indian Head, Charles County

Ordnance Products, Incorporated, Northeast, Cecil County

Sand Gravel and Stone, Elkton

Southern Maryland Wood Treating National Priorities List (NPL) Site, Hollywood,

St. Mary’s County

Spectron Incorporated (a/k/a Galaxy Incorporated), Elkton, Cecil County

PENNSYLVANIA

Avco Lycoming-Williamsport Division, Williamsport, Lycoming County

Bell Landfill, Wyalusing-Terry Township, Bradford County

BresLube-Penn Inc. Superfund Site, Moon Township. Allegheny County

Butz Landfill, Jackson Township, Monroe County

C&D Recycling, Freeland, Luzerne County

Cabot-Wrought Products, Muhlenberg, Berks County

Crater Resources, King of Prussia, Montgomery County

Cryo-Chem Inc., Worman Township, Bovertown, Berks County

Dublin Water Supply, Dublin, Bucks County

Falls Township Groundwater Contamination (a/k/a CORCO Chemical, Parascientific, Meenan Oil), Falls Township, Bucks County

Foote Mineral Company, Frazer, Chester County

Hebelka Auto Salvage Yard, Weisenburg Township, Lehigh County

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Letterkenny Army DeRot, USA Letterkenny Southeast Area, and USA LetterkennyProperty, Disposal Office Area, Chambersburg, Franklin County

Malvern TCE Site, Malvern, Chester County

McAdoo Associates, McAdoo, Schuylkill County

Metropolitan Mirror and Glass Company, Incorporated, Frackville, Schuylkill

County

Modern Sanitation Landfill, York, York County

North Penn-Area 1, Souderton, Montgomery County

Palmerton Zinc Pile, Palmerton, Carbon County

Resin Disposal Site, Jefferson Borough, Allegheny County

Revere Chemical Company, Nockamixon, Bucks County

Rodale Manufacturing Company, Inc., Emmaus, Lehigh County

Salford Quarry, Township Montgomery County

Strasburg Landfill, Newlin Township, Chester County

Tobyhanna Army Depot, Coolbaugh Township, Monroe County

UGI Columbia Gas Plant, Columbia, Lancaster County

VIRGINIA

Sites in Bluefield and Vicinity, Tazewell County

C&R Battery Company, Inc., Richmond, Chesterfield County

Fort Eustis (US Army), Newport News, Newport News County

First Piedmont Rock Quarry, Beaver Park

USAF Langley Air Force Base/Nasa-Langley Research Center, Hampton, York

County

U.S. Defense General Supply Center, Richmond, Chesterfield County

WASHINGTON, D.C.

None available currently.

WEST VIRGINIA

Sites in Bluefield and Vicinity, Mercer County

Hanlin-Allied-Olin, Moundsville, Marshall Couunty

Sharon Steel Corporation (Fairment Coke Works), Fairmont, Marion County

Region 4

ALABAMA

Alabama Army Ammunition Plant, Talladega County

Monarch Tile, Florence, Lauderdale County

T.H. Agriculture and Nutrition/Montgomery Plant Site, Montgomery, Montgomery

County

FLORIDA

Agrico Chemical Company, Pensacola, Escambia County

Broward County-21st Manor Dump, Ft. Lauderdale, Broward County

Chevron Chemical Company (Ortho Division), Orlando, Orange County

Escambia Wood-Pensacola, Pensacola, Escambia

Hipps Road Landfill, Jacksonville, Duval County

Homestead Air Force Base, Homestead AFB, Dade County

Loxahatchee Nursery, Palm City, Martin County

MRI Corporation, Tampa, Hillsborough County

Munisport Landfill, North Miami, Dade County

Plymouth Avenue Landfill, Deland, Volusia County

GEORGIA

Basket Creek Surface Impoundment and Basket Creek Drum Disposal, Douglasville,

Douglas County

Old Douglas County Landfill, Douglasville, Douglas County

Southern Wood Piedmont Company, Augusta, Richmond County

Southwire Company, Carrollton, Carroll County

KENTUCKY

National Electric Coil/Cooper Industries, Dayhoit, Harlan County

National Southwire Aluminum Company, Hawesville, Hancock County

Rubbertown, Louisville, Jefferson County

MISSISSIPPI

Chemfax, Inc., Gulfport, Harrison County

Country Club Lake Estates, Hattiesburg, Forrest County

Potter Company, Wesson, Copiah County

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NORTH CAROLINA

Caldwell Systems Incorporated, Lenoir, Caldwell County

Cherry Point Marine Corps Air Station, Cherry Point, Craven County

U.S. Marine Corps Camp Lejeune, Camp Lejeune, Onslow County

SOUTH CAROLINA

Carolawn, Fort Lawn, Chester County

Geiger (C&M Oil) Site, Rantowles, Charleston County

Golden Strip Septic Tank, Simpsonville, Greenville County

GSX Landfill, Pinewood, Sumter County

Helena Chemical Company Landfill, Fairfax, Allendale County

Kalama Specialty, Burton, Beaufort County

Koppers Company Inc./Florence Plant, Florence, Florence County

Laidlaw Environmental Services Facility, Roebuck, Spartanburg County

Leonard Chemical Company, Inc., Catawba, York County

Medley Farms, Gaffney, Cherokee County

Palmetto Recycling, Incorporated, Columbia, Richland County

Palmetto Wood Preserving, Incorporated, Cayce, Lexington County

Para-Chem Southern, Inc., Simpsonville, Greenville County

Rochester Property, Traveler’s Rest, Greenville Report

Sangamo/Twelve-Mile Creek/Hartwell PCB, Pickens, Pickens County

USMC Marine Corps Recruit Depot (a/k/a Parris Island Marine Corps Recruit

Depot), Parris Island, Beaufort

TENNESSEE

ICG Iselin Railroad Yard, Jackson, Madison County

USA Defense Depot Memphis, Memphis, Shelby County

Region 5

ILLINOIS

A&F Materials Reclaiming, Inc., Greenup, Cumberland County

Acme Solvent Reclaiming, Winnebago, Winnebago County

Belvidere Municipal Landfill #1, Belvidere, Boone County

Cross Brothers Pail Recycling, Pembroke Township, Kankakee County

Danville H&L No. 1 Danville City Dump, Danville, Vermilion County

DuPage County Landfill (Blackwell Forest Preserve), Warrenville, DuPage County

H.O.D. Landfill, Antioch, Lake County

Ilada Energy Company, East Cape Girardeau, Alexander County

Jennison Wright Corporation, Granite City, Madison County

Kaney Transportation, Rockford, Winnebago County

Lenz Oil Service Incorporated, Lemont, Cook County

Ottawa Radiation Areas, Ottawa, LaSalle County

Outboard Marine Corporation, Waukegan, Lake County

Pagel’s Pit, Rockford, Winnebago County

Tri-County Landfill, South Elgin, Kane County

Velsicol Chemical, Marshall, Clark County

Wauconda Sand and Gravel, Wauconda, Lake County

Woodstock Municipal Landfill, Woodstock, McHenry County

Yeoman Creek and Edwards Field Landfills, Waukegan, Lake County

INDIANA

American Chemical Services Inc., Griffith, Lake County

Bloomington PCB Sites-Volume 1, Bloomington, Monroe County and Spencer, Owen

County

Bloomington PCB Sites-Volume 2, Bloomington, Monroe County and Spencer, Owen

County

Bloomington PCB Sites-Volume 3, Bloomington, Monroe County and Spencer, Owen

County

Carter-Lee Lumber Company, Indianapolis, Marion County

Enviro-Chem Corporation, Zionsville, Boone County

Fisher Calo, Kingsbury, La Porte County

Marion (Bragg)dump, Marion, Grant County

Northside Sanitary Landfill, Zionsville, Boone County

Reilly Tar and Chemical Corporation (Indianapolis Plant), Indianapolis, Marion

County

U.S. Smelter and Lead Refinery, Inc. (a/k/a USS Lead Refinery Inc.), East Chicago,

Lake County

Waste Inc. Landfill, Michigan City, La Porte County

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MICHIGAN

Albion-Sheridan Township Landfill, Sheridan Township, Calhoun County

Baycity Middlegrounds Landfill, Bay City, Bay County

Bofors-Nobel Incorporated, Egelston, Muskegon County

Duell and Gardner Landfill, Muskegon, Muskegon County

Ionia City Landfill, Ionia, Ionia County

Lower Ecorse Creek Dump, Wyandotte, Wayne County

Michigan Sites of Radium Dial Contamination:

Aircraft Components (Michigan Radiologic) (a/k/a D& L Sales), Benton Harbor,

Berrien County

H&K Sales (Michigan Radiologic), Belding, Ionia County

Organic Chemicals Incorporated, Grandville, Kent County

Ossineke Groundwater Contamination, Ossineke, Alpena County

Packaging Corporation of America, Filer City, Manistee County

South Macomb Disposal Authority #9. 9A, St. Clair Shores, Oakland County

Thermo Chem Incorporated, Muskegon, Muskegon County

Willow Run Sludge Lagoon, Ypsilanti, Washtenaw County

MINNESOTA

Reilly Tar and Chemical Corporation Site, St. Louis Park, Hennepin County

U.S. Air Force Twin Cities Reserve Small Arms Range, Minneapolis, Hennepin

County

OHIO

Air Force Plant 85, Columbus, Franklin County

Buckeye Reclamation Landfill, St. Clairsville, Belmont County

Chem-Dyne Corporation, Hamilton, Butler County

Dover Chemical Corporation, Dover, Tuscarawas County

Fields Brook NPL Site, Ashtabula, Ashtabula County

Fultz Landfill, Byesville, Guernsey County

Miami County Incinerator, Troy, Miami County

Nease Chemical, Salem, Columbiana County

North Sanitary Landfill-Dayton, Dayton, Montgomery County

Powell Road Landfill, Dayton, Montgomery County

WISCONSIN

Delavan Municipal Well #4, Delavan Walworth County

Kohler Company Landfill, Kohler, Sheboygan County

Madison Metropolitan Sewerage District Sludge Lagoons, Madison (Town of Blooming Grove), Dane County

Muskego Sanitary Landfill, Muskego, Waukesha County

Penta Wood Products, Town of Daniels, Burnett

Refuse Hideaway, Middleton, Dane County

Ripon City Landfill, Ripon, Fond du Lac County

Sauk County Landfill, Excelsior, Sauk County

Region 6

ARKANSAS

Popile, Incorporated, El Dorado Union County

South 8th Street Landfill, West Memphis, Crittenden County

LOUISIANA

American Creosote Works, Winnfield Winn Parish

Bayou Bonfouca, Slidell, St. Tammany Parish

Marine Shale Processors. Inc., Amelia, St. Mary Parish

Petro-Processors of Louisiana, Incorporated, Baton Rouge, East Baton Rouge Parish

NEW MEXICO

AT & SF (Albuquerque), Albuquerque, Bernalillo County

Cal West Metals (USSBA), Lemitar, Socorro County

OKLAHOMA

Kerr-McGee Refinery Site, Cushing, Payne County

National Zinc Company, Bartlesville, Washington County

Oklahoma Refining Company, Cyril, Caddo County

Tinker Air Force Base (Soldier CR/Building 3001), Midwest City, Oklahoma County

TEXAS

Air Force Plant #4 (General Dynamics), Fort Worth, Tarrant County

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Alcoa (Point Comfort)/ Lavaca Buy, Point Comfort, Calhoun County

Brio Refining Inc., Houston, Harris County

French Limited, Crosby, Harris County

Geneva Industries/Fuhrmann Energy, Houston, Harris County

Odessa Super Site, Ector, Ector County

Pantex Plant, Amarillo, Carson County

RSR Corporation, Dallas, Dallas County

United Creosoting Company, Conroe, Montgomery County

Region 7

IOWA

Fairfield Coal Gasification Plant, Fairfield, Jefferson County

Mason City Coal Gasification Plant, Mason City, Cerro Gordo County

KANSAS

Ace Services Incorporated, Colby, Thomas County

MISSOURI

Armour Road Site, North Kansas City, Clay County

Big River Mine Tailings Desloge (a/k/a St. Joe Minerals), Desloge, St. Francois

County

St. Louis Airport, St. Louis, St. Louis County

Weldon Spring Site Remediation Action Project (Chemical Plant, Raffinate Pits,

Quarry), St. Charles, St. Charles County

Weldon Spring Training Area, Weldon Spring, St. Charles County

NEBRASKA

American Shizuki Corporation, Ogallala, Keith County

Bruno Coop & Associated Properties, Bruno, Butler County

Cleburn Street Well Site, Grand Island, Hall County

Sherwood Medical Company, Norfolk, Madison County

Region 8

COLORADO

Asarco Incorporated (Globe Plant), Denver, Denver County

Hansen Containers, Grand Junction, Mesa County

Rocky Mountain Arsenal, Adams Counky

Smeltertown/Koppers, Salida, Chaffee County

Summitville Mine, Del Norte, Rio Grande County

MONTANA

None available currently.

NORTH DAKOTA

None available currently.

SOUTH DAKOTA

Annie Creek Mine Tailings, Leade, Lawrence County

Williams Pipe Line Company, Sioux Falls, Minnehaha County

UTAH

Kennecott (North Zone), Magna, Salt Lake County

Kennecott (South Zone), Copperton, Salt Lake County

Monticello Mill Tailings (DOE) and Monticello Radioactively Contaminated Properties (a/k/a) Monticello Vicinity Properties), Monticello, San Juan County

Murray Smelter, Murray, Salt Lake County

Ogden Defense Depot, Ogden, Weber County

Petrochem Recycling Corporation/Ekotek, Salt Lake City, Salt Lake County

WYOMING

None available currently.

Region 9

AMERICAN SAMOA

None available currently.

ARIZONA

Luke Air Force Base, Phoenix, Maricopa County

Phelps-Dodge Corp Douglas Reduction Works, Douglas, Cochise County

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Williams Air Force Base, Mesa, Maricopa County

Yuma Marine Corps Air Station, Yuma, Yuma County

CALIFORNIA

El Toro Marine Corps Air Station, Santa Ana, Orange County

Fort Ord, Marina, Monterey County

Frontier Fertilizer, Davis, Yolo County

Riverbank Army Ammunition Plant, Riverbank, Stanislaus County

Sacramento Army Depot, Sacramento, Sacramento County

Sola Optical USA, Inc., Petaluma, Sonoma County

Naval Station Treasure Island, Hunters Point Annex, San Francisco County

T.H. Agriculture and Nutrition Company, Fresno, Fresno County

Tracy Defense Depot, Tracy, San Joaquin County

Travis Air Force Base, Solano County

COMMONWEALTH OF THE NORTHERN MARIANAS ISLANDS

None available currently.

GUAM

None available currently.

HAWAII

Del Monte Corporation (Oahu Plantation), Kunia, Honolulu County

Naval Computer and Telecommunication Area, Wahiawa, Honolulu County

NEVADA

None available currently.

TRUSTED TERRITORIES

None available currently.

Region 10

ALASKA

Fort Richardson (U.S. Army), Fort Richardson, Anchorge County

IDAHO

Blackbird Mine, Cobalt, Lemhi County

Triumph Mine Tailings Piles, Halley, Blaine County

OREGON

East Multnomah, Gresham, Multnomah County

McCormick and Baxter Creosoting Company (Portland), Portland, Multnomah

County

Northwest Pine and Casing Company, Clackamas, Clackamas County

Reynolds Metal Company, Troutdale, Multnomah County

U.S. Army Umatilla Depot Activity, Hermiston, Umatilla County

WASHINGTON

American Crossarm and Conduit Company, Chehalis, Lewis County

Bonneville Power Administration Ross Complex (USDOE), Vancouver, County

Boomsnub/Airco, Vancouver, Clark County

Commencement Bay, South Tacoma Field (a/k/a Commencement Bay, South Tacoma

Channel), Tacoma, Pierce County

Fairchild Air Force Base, Spokane, Spokane County

McChord Air Force Base, Tacoma, Pierce County

Old Navy Dump/Manchester Laboratory (USEPA/NOAA), Manchester, Kitsap

County

Pacific Sound Resources, Seattle, King County

Seattle Municipal Landfill/Kent Highlands, Kent, King County

U.S. Navy Port Hadlock Detachment, Indian Island, Kitsap County

Mr. TOWNS. All right, thank you very much.

The majority staff circulated a memorandum to the subcommittee members for this hearing that EPA has completed remedial actions at slightly under 200 sites. First, is that an accurate

statement or is it misleading?

Mr. FIELDS. Well, from my perspective, it is a very misleading

statement. We, in fact, have completed cleanup at many more than

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200 sites. As I said in the very beginning, both Republican and

Democratic administrations have all agreed that the constructioncompletion indicator is the best indicator of Superfund Program

performance. We have, in fact, completed cleanup construction at

592 sites to date. We will completing cleanup construction at 670

by the end of this fiscal year. Almost half of the sites on the Superfund National Priorities List will have completed construction by

the end of this year. That is significant progress. It is the appropriate indicator, and not the information that has been provided in

the staff draft documents.

Mr. TOWNS. So, I can just assume that that is inaccurate?

Mr. FIELDS. We believe it is an inaccurate indicator and not the

correct indicator to document Superfund Program performance.

Mr. TOWNS. Mr. Fields, I have heard from many local government representatives that the reuse of contaminated properties is

of great concern to our cities. I believe that we must focus on this

concern, the cost to a community when a remedy is chosen that

does not render the property usable. Can you describe whether redevelopment of other beneficial activities has taken place at Superfund sites that are either construction-complete or still have remedial construction ongoing?

Mr. FIELDS. Yes, we definitely can document that at many of our

sites, where construction is complete or construction is underway,

major reuse is occurring, economic reuse, recreational reuse, those

reuses that are very beneficial to communities. For example, in the

industrial-plex site in Massachusetts, we have converted a Superfund site into a regional transportation center and a shopping complex. At the Anaconda site in Montana, we have converted a Superfund site that is still under construction into a world-class Jack

Nicklaus Golf Course. The Chisman Creek site in York County,

Pennsylvania, we converted that into a recreational area involving

ball fields.

We have documented more than 160 Superfund sites to date

where major reuse, redevelopment, recycling has occurred while

major construction activity is underway.

Mr. TOWNS. Mr. Chairman, may I ask unanimous consent that

Mr. Fields insert into the records other examples of redevelopment

and beneficial activities that are now taking place at the Superfund

sites?

Mr. OXLEY. Without objection.

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

from Ohio, Dr. Ganske.

Mr. GANSKE. Thank you, Mr. Chairman.

Mr. Fields, I know that Mr. Greenwood is going to be asking you

some questions about brownfields, and so I am going to move really

to this chart that you have shown. What bothers me about your

statement is—what bothers me is that your statement, the administration budget document, many of Administrator Browner’s statements repeat over and over an argument that to me doesn’t make

since mathematically or logically. The question I want to ask you

about is whether a given set of facts logically proves a given conclusion about the pace of cleanups. So, let me walk through this.

I want to refer to an enclosure to a letter the GAO wrote to Carol

Browner on January 28, 1998. The letter responds to EPA criticism

of a GAO report on the current times for listing and moving a site

through the cleanup process.

The enclosure states that site completions are not evidence of the

pace of cleanups. The GAO response to EPA states, ‘‘This is not evidence of decreasing processing times. Rather, it is an indication

that the program, now more than 15 years old, has been around

long enough for a substantial number of sites to have had remedies

constructed. Given the long cleanup times for many sites, it is not

surprising that more sites, most listed years ago, are now reaching

the end of the cleanup.’’

It seems to me the GAO report is correct. Do you agree?

Mr. FIELDS. We have discussed this with the GAO and Mr. Guerrero, who will be speaking right after me. We have some serious

disagreements about that study, and we have discussed this privately and publicly. Our disagreements with the GAO analysis of

the timeline that they have documented in their report—and I have

read that report several times—we, in fact, have documented, and

I will be happy to provide for the record documentation which says

the time it takes to go through the process has been reduced by 2

years. It now takes, on the average—and we can provide sites to

give you documentation for this—eight years from the time you finalize a site on the NPL until construction is complete.

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Mr. GANSKE. But, you would admit, then, that simply looking at

a chart where you list just the number of projects being brought

to completion in any given year is not an index of progress, in

terms of the length of time that it is taking to get it completed, because you may just have that many more projects in the pipeline?

So that, as you add more and more projects on, you can expect that

you are eventually going to get more and more of them completed.

Mr. FIELDS. You are right in the sense that there will be more

sites completed because of time in the process. But, it is very clear

that the progress you see on that chart could not have been

achieved as quickly as it is being done without the administrative

reforms. We were doing, if you look at that chart, 65 construction

completions a year in the early 1990’s. As you look at the data, we

are now up to 85 a year. In the last 2 years alone we have achieved

175 construction-completions. We were not operating at nearly that

pace in the early 1990’s.

Mr. GANSKE. Well, maybe you can explain to me—in 1992, the

last year of the Bush administration, there were 87 constructioncompletes. In the next 4 years, in the Clinton administration, there

were 68, 60, 62, and 62, respectively. What was the difference?

Mr. FIELDS. The difference was that we got an infusion of money

just prior to that year that we achieved 87 in the Bush administration. It was, actually, the year before we adopted construction-completion as being the indicator of Superfund Program progress. The

additional infusion of money, roughly, $400 million, was what allowed us to move faster toward getting more cleanups done that

particular year. But, the overall budget that we achieved, $1.5 billion a year, that budget, as you have seen during the 4 years 1993,

1994, 1995, and 1996, that budget allows you to achieve 65 cleanups a year. That is what we told Congress 6 years ago—by 2000,

we would have 650 construction completions.

Because of the administrative reform agenda we have been implementing, over the last 6 years, we are now going to achieve 650

construction-completions by this summer. That is about a year and

a half earlier than we told Congress. And, the real reason we are

getting there faster is because of the administrative reforms. We

have the same amount of money, but we are doing it faster.

Mr. GANSKE. But it’s your contention that you are getting the

sites cleaned up in a shorter timeframe. Now, does the GAO agree

with that?

Mr. FIELDS. I think, when you look at the GAO testimony, the

GAO testimony, as I read it last night, indicates that significant

progress has been made in this program and that Superfund has

been implementing its construction-completion initiative in a fair

and constructive way. The General Accounting Office actually did

a review. A document was prepared on our construction-completion

initiative. The General Accounting Office’s report was quite favorable about how we document and how we are completing many

more constructions at Superfund sites.

Mr. OXLEY. The gentleman’s time has expired. The gentlelady

from Colorado.

Ms. DEGETTE. Thank you, Mr. Chairman.

I bet you know what I want to talk about, Mr. Fields. And, I

want to clarify a few things with you. The reason I said, in my

86

opening statement, that with this new I-70 and Vasquez site in

Denver, that I think that the wishes of the neighborhood and the

property values should be taken into account, is because we have

this existing Superfund site in Denver, the Shattuck site, which we

have had a number of conversations about in the last year. In fairness to the EPA, this was a site that was closed before this administration came in.

However, in my opinion, in the bipartisan opinion of every elected official who deals with this site, and in the opinions of over 80

percent of the Denver voters, the ‘‘remedy,’’ which is containment

onsite in a residential neighborhood of uranium, was inappropriate

in this situation. And, I have been trying to get a sense from the

EPA now for about a year of what it is that you folks intend to do

about this.

Last fall, after the voters elected, by a referendum, that they

wanted this stuff moved out, the EPA announced that it would appoint a blue-ribbon panel to figure out what was going on. And, I

learned, a couple of weeks ago that nothing happened with the

blue-ribbon panel. Then, after I met with you, and some other officials from the EPA, I received a letter from you saying that perhaps we could have a meeting of interested parties that the Keystone group could facilitate, giving me the impression that you

folks wanted me to pay for, at least, part of that meeting.

Then, after that, you visited Denver and announced that you

were going to have an investigation whether lower standards were

applied in cleaning up the waste. At the request of Senator Allard,

you said you were going to appoint an EPA ombudsman; you said

you were going to have an analysis by a Boston consulting firm,

and, then, you also said you were going to have some meetings

with the neighborhood.

So, here is my question to you: Exactly what is it that the EPA

intends to do, and exactly what is the timeframe in which you intend to do it?

Mr. FIELDS. Thank you, Congressman. Again, we thank you for

your active involvement at the site. I assure you that that active

involvement has helped facilitate EPA’s involvement at that site.

In my meeting with you, I made a commitment that we would

play a more active role in headquarters in the review of activities

at that site, and we are doing so. We are going to do a full review

of activities at that site. The Administrator has asked me to personally oversee the review of the remedy.

We are doing four things: We are going to be doing a detailed scientific and technical review of the remedy, a contractor that we

will be hiring will be evaluating all the technical and scientific

issues raised by the community——

Ms. DEGETTE. And, what is the timeframe for that?

Mr. FIELDS. That will be done by September.

Second, we will be doing an ombudsman review. The National

Ombudsman for Superfund, who works for me, will be doing a review of some of the community concerns that have been raised at

the site, about environmental justice issues, about placement of

that site in the community, and about the impact on re-development, some of the non-technical types of issues that have been

raised about the Shattuck site.

87

Ms. DEGETTE. And when will that be done?

Mr. FIELDS. Everything is going to be done this summer. All four

of these pieces will be completed this summer.

Ms. DEGETTE. So the ombudsman review is not dependent on the

scientific data? It is a separate assessment?

Mr. FIELDS. No, all of these are being done on a parallel track

to help facilitate getting the job done.

Third, as you mention, we will be hiring the Keystone Center in

Keystone, Colorado, to facilitate several meetings that I will be

present at, with key stakeholders involved in the Shattuck site.

The mayor’s office, the Governor’s office, representatives of

Shattuck have agreed to participate, the responsible party, representatives of the community.

We are going to schedule that meeting at a time that you can be

there. We would like you to come and address that meeting

when——

Ms. DEGETTE. Thanks for letting me know.

Mr. FIELDS. We will not schedule it unless you are available, I

assure you of that. And, that meeting I expect to be sometime in

the April to early May timeframe.

We are going to hire the contractor by April. We will have the

contractor onboard at the Keystone Center. And then, that will be

done during the summer.

And then, last, I have agreed to, personally, meet with the parties—the meeting with you was one such meeting. I, subsequently,

met with the mayor a couple of weeks ago. We will be meeting with

Senator Allard. We will be meeting with the representatives of

Shattuck, and their views and comments will be considered.

Then, we have agreed, as an agency, to make our headquarters

determination by the fall as to what we are going to do at the

Shattuck site, based on the input from all four of those parallel efforts that will be underway.

Mr. OXLEY. The gentlelady’s time has expired. The gentleman

from Virginia, the chairman of the full committee.

Chairman BLILEY. Thank you, Mr. Chairman.

Mr. Fields, many of us are familiar with the waves of litigation

that the Superfund law causes, I want to go over them with you.

Typically, EPA will go after a certain number of larger, potentially responsible parties. Those PRP’s, in turn, can sue other small

PRP’s for contributions. The second group is allowed to sue even

more PRP’s. We have seen thousands brought into the mix, from

Barbara Williams with her mashed potatoes, to auto dealers who

recycle oil. In addition to these waves, PRP’s can also create separate litigation against their insurance carriers. All of these are parties who probably will at least hire a lawyer and many incur thousands in unnecessary expenses—all of this, often for insignificant

contributions of waste.

Many are liable for activities that occurred over 30 years ago.

Many are liable because they bought a company which was acting

in full accordance with the law. The system is a travesty.

The National Federation of Independent Businesses has testified,

‘‘There have been over 100,000 different potentially responsible

parties identified at Superfund sites.’’ The effect of the current liability system is permeating all segments of the small business

88

community. No issue, in this very complex public policy debate, will

have a more direct impact on the present and future economic viability of many small businesses. That is, in one segment, whether

it be a retail store, a professional service business, or a construction business that has not been touched. My question is: Why is the

administration not working with us on statutory reforms to these

problems?

Mr. FIELDS. We agree with you that the litigation impact needs

to be considered and addressed. We support getting Barbara Williams out of the system. That is why we support a legislative provision that would exempt and provide liability relief for small generators and transporters of municipal solid waste. Barbara Williams

would not be in our liability system if that kind of legislative provision were enacted.

Over the last 6 years, second, we have introduced an aggressive

reform agenda where we have settled, with 18,000 de minimis parties, with 400 settlements, to get them out of the Superfund liability system, to make sure they are not sought after by third-party

litigants and to cut down on litigation by that reform. We have implemented a de micromis enforcement policy that allows people to

settle out for a dollar out of the Superfund liability system. We

have offered $145 million in orphan share funding to help facilitate

settlements. And we have found that, in terms of larger parties, we

have seen more fairness being implemented as well. PRP’s, over

the last 3 years, have agreed to conduct cleanup under the settlement reform, agreements rather than through unilateral administrative orders. That is up from 50 percent more than 3 years ago.

So, we think that in all aspects of the program, we have tried

to be fair to the larger parties as well as the smaller parties. And

we support, as you do, liability reform to get Barbara Williams and

other small entities out of the Superfund liability system.

Chairman BLILEY. Thank you, Mr. Chairman. I have no further

questions.

Mr. OXLEY. I thank the gentleman. The gentleman from Wisconsin, Mr. Barrett.

Mr. BARRETT. Thank you, Mr. Chairman.

I apologize that I wasn’t here to hear your testimony, but looking

at your written submission, I note that you state that the agency

has gone from cleaning up 65 sites per year to cleaning up 85 sites

per year. And, obviously, that is something that I think that you

can be proud of, if you are working more efficiently and effectively.

What was the key that allowed you to get from 65 to 85?

Mr. FIELDS. Well, it was the set of administrative reforms we

have introduced over the last 3 years. We implemented three

rounds of administrative reforms, and those reforms include things

like presumptive remedies, where we don’t have to spend 2 years

studying how to clean up certain categories of sites like volatile organic chemicals or municipal landfills; that saved time. The fact

that we have reduced cost in the cleanup process by 20 percent,

that has allowed us to do more cleanups with the same amount of

money. So, it is this set of reforms that have allowed us to move

faster in this process.

We are now doing it faster and, because of that, we are now

cleaning up 85 sites a year as opposed to 65, one-third increase in

89

the number of cleanups that we are doing each year. So, we think

that the administrative reform agenda is what has allowed us to

address many more sites than we were formerly able to address

during the early 1990’s.

Mr. BARRETT. Have you found that, along with that increased

speed, that you have increased hostility toward the agency?

Mr. FIELDS. No, I don’t think that that has increased hostility at

all. We are finding that, you know, more than 70 percent of the

cleanups that we are effectuating are being done by responsible

parties. The sites that were cleaned up in, for example, the construction-completions in fiscal year 1998, 72 percent of those were

done by responsible parties. So, we are seeing that, over the last

5 years, roughly, 70 percent of the cleanups are being done by responsible parties.

We are thinking that the enforcement dollars we are putting into

this program have been tremendously leveraged. We have obligated

$2.3 billion over the last 18 years for enforcement and cost-recovery

activities in this program. That has resulted in more than $15.5

billion in responsible-party activity. In addition to what we are putting in the trust fund, the responsible parties are stepping up to

the plate and doing effective cleanup and helping us facilitate and

do a greater number of cleanups each year, because of the aggressive job we have in enforcement and the responsible-party activity

going on at many of these sites.

Mr. BARRETT. In my experience in Wisconsin, the State that I

come from, it appears that a strong Federal cleanup program, with

the Federal liability scheme and the threat of NPL listing, has, in

a way, benefited the State cleanup program because you are so

much the ‘‘gorilla in the closet,’’ if you will, that nobody wants to

have the EPA come in and a Superfund come in. Is that experience

similar in other States? Are you seeing more States becoming active, trying to avoid, at all costs——

Mr. FIELDS. That is definitely true. We have seen that in many

States, in implementing—as the chairman was indicating, it goes

much beyond Superfund, much beyond the NPL. State programs

are telling us that the fact that we have a joint and several liability

scheme, a strong liability provision in the Superfund law, actually

helps them in terms of getting more cleanup done. The regulated

community, and other parties, would rather do cleanup pursuant to

a State cleanup program than get involved in being on the Superfund List or have to get involved in being on the National Priorities

List. The State programs have told us that a powerful Federal statute allows them to get much more cleanup. This fact has been documented, in reports prepared by the U.S. General Accounting Office as well.

Mr. BARRETT. When you have a situation—again, I am thinking

of my own State—where you have got a cleanup site where the

State, and most of the local players, desperately don’t want to have

the Superfund involvement, what is the criteria you are using to

decide whether you are going to allow this State to move forward

on its own or whether you are going to step in?

Mr. FIELDS. Well, as we said earlier, we have been working closely with the States over the last 3 years, under our State Governor

concurrence policy. We consider the threat posed by a site; we conVerDate 27-JAN-2000 09:15 Feb 03, 2000 Jkt 010199 PO 00000 Frm 00092 Fmt 6633 Sfmt 6602 E:\HEARINGS\55642 txed02 PsN: txed02
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sider whether or not the State is willing to take that site on; we

consider whether or not that site is one where there are willing, or

unable or unwilling or incapable responsible parties to deal with

the site. If the State is willing to take the site, we are willing to

defer to a State voluntary cleanup program or to a State Superfund

program, or to voluntary PRP action. We only utilize the National

Priorities List, and make a site a Federal interest, if it cannot be

dealt with any other way.

Over the last 5 years, we have listed, roughly, 25, 26 sites on the

NPL each year. We don’t put sites on the NPL just because they

score above 28.5. We do it when we can’t find an alternative way

to deal with that site.

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

from Pennsylvania, Mr. Greenwood.

Mr. GREENWOOD. Thank you, Mr. Chairman.

I would like to place into the record, and provide to Mr. Fields,

a set of statements from parties who have been seeking statutory

reform to provide certainty and finality for State voluntary and

brownfields cleanups. These parties supported the language in H.R.

3000, Congressman Oxley’s bipartisan bill from last session, which

included my brownfield provisions. This group includes the State

waste management officials, the Governors, the State attorneys

general, cleanup engineers, and contractors, and realtors. Do you

have a copy of that yet, Mr. Fields?

[The information referred to follows:]

PARTIES SEEKING STATUTORY REFORM TO PROVIDE CERTAINTY AND FINALITY FOR

STATE, VOLUNTARY AND BROWNFIELDS CLEANUPS

EXCERPTS FROM TESTIMONY AND LETTERS FROM HEARINGS BEFORE THE SUBCOMMITTEE ON FINANCE AND HAZARDOUS MATERIALS IN THE 105TH CONGRESS ON

H.R. 3000

National Governors’ Association

‘‘The Governors believe that congressional direction is needed because the September 1997 EPA draft guidance on state voluntary clean-up programs would have

seriously eroded state authority at the expense of federal programs. Although the

draft guidance was withdrawn, the Governors is still prevalent. They support the

brownfields provisions in H.R. 3000 and believe that these changes would facilitate

cleanups across the nation and provide certainty for remediating parties.

States believe that voluntary cleanup programs and brownfields development are

being hindered by the pervasive fear of liability under CERCLA. The Governors

would strongly support provisions that encourage potentially responsible parties and

prospective purchasers to voluntarily clean up sites and reuse and develop contaminated property by precluding federal enforcement at sites where cleanup has occurred under state programs . . .’’

Association of State and Territorial Waste Management Officials

‘‘Our second goal will be met if title III of H.R. 3000 is enacted and States are

allowed to release sites from federal liability once a site has met State standards.

The reality is the CERCLA statute has become a primary impediment to remediating sites not listed on the NPL, yet they are still subject to CERCLA liability even

after the site has been listed on the NPL. The majority of sites classified as

Brownfields will never be placed on the NPL, yet they are still subject to State

standards. We can no longer afford to foster the illusion that State authorized cleanups may somehow not be adequate to satisfy federal requirements. The potential for

EPA overfile and for third party lawsuits under CERCLA is beginning to cause

many owners of Brownfields sites to simply ‘‘mothball’’ the properties . . . States

should be able to release sites from liability once a site has been cleaned up to State

standards . . .’’

91

The National Association of Attorney Generals

‘‘Federal statutory provisions should be flexible enough to accommodate different

state voluntary cleanup laws. States should be able to self-certify, subject to EPA’s

approval. After such approval, the state should be authorized to issue a release from

federal liability when a volunteer complies with a federally approved state

brownfields program. In this fashion state brownfields programs can operate to their

fullest potential.’’

Clean-up Engineers and Contractors

‘‘HWAC [Hazardous Waste Action Coalition] is our trade association representing

more than 60 of the country’s leading engineering, science and construction firms

practicing in multimedia environmental management and remediation. [H.R. 3000]

is badly needed. This bill IS protective of human health and environment; it Does

promote and enhance clean-up. This bill Will ensure that innovations are applied

to cleanups; it provides incentives for new technologies at hazardous waste sites.

And the bill WILL spur essential state and local voluntary cleanup programs that

sometimes languish due to the shadow of potential CERCLA liability that runs from

the Beltway to every Brownfield site in this country.’’

The National Association of Realtors

‘‘Uncertainty over potential liability associated with real estate which is an actual

or potential Superfund site has proven to be a significant deterrent in the purchase,

sale and development of commercial and residential properties. Properties that

could be positively contributing to local economies remain dilapidated, contributing

to nothing but economic ruin’’.

Mr. FIELDS. Not yet.

Mr. GREENWOOD. I think that it is coming at you here.

Let me read some quotes from these statements, first from the—

first, do you have one now, sir? Okay, very good. If you look at the

National Governors Association, the second paragraph—I am just

shortening it to get through this—states, ‘‘States believe that voluntary cleanup programs and brownfields development are being

hindered by the pervasive fear of liability under CERCLA. The

Governors would strongly support provisions that encourage potentially responsible parties and prospective purchasers to voluntarily

clean up sites and to reuse and develop contaminated property by

precluding Federal enforcement at sites where cleanup has occurred under State programs.’’ That is the National Governors Association.

If you look at the Association of State and Territorial Waste

Management Officials, it says, ‘‘The reality is that CERCLA statute

has become a primary impediment to remediating sites not listed

on the NPL. Yet, they are still subject to CERCLA liability, even

after the site has been listed on the NPL. We can no longer afford

to foster the illusion that State-authorized cleanups may somehow

not be adequate to satisfy Federal requirements. The potential for

EPA overfile and for third-party lawsuits under CERCLA is beginning to cause many owners of brownfield sites to simply ‘mothball’

the properties. States should be able to release sites from liability

once a site has been cleaned up to State standards.’’

National Association of Attorney Generals, about halfway down:

‘‘The States should be authorized to issue a release from Federal

liability when a volunteer complies with federally approved State

brownfields program, and in this fashion, State brownfields programs can operate to their fullest potential.’’

The cleanup engineers and contractors, the Hazardous Waste Action Coalition says: ‘‘The bill will spur essential State and local voluntary cleanup programs that sometimes languish due to the shadVerDate 27-JAN-2000 09:15 Feb 03, 2000 Jkt 010199 PO 00000 Frm 00094 Fmt 6633 Sfmt 6602 E:\HEARINGS\55642 txed02 PsN: txed02
92

ow of potential CERCLA liability that runs from the Beltway to

every brownfields site in this country.’’

And, finally, from the National Association of Realtors, quote,

‘‘Uncertainty over potential liability associated with real estate

which is an actual or potential Superfund site has proven to be a

significant deterrent to the purchase, sale, and development of

commercial and residential properties. Properties that could be

positively contributing to local economies remain dilapidated, contributing to nothing but economic ruin.’’

Now, Mr. Fields, briefly, these groups say that when a party

works with the State on a cleanup plan that should be final, there

should be a release from further liability and cleanup issues. This

would seem to require statutory change.

As I read your testimony, the administration’s answer to this

point is that EPA has entered into 85 prospective purchaser agreements and issued over 250 conferred-status letters. And, I am

aware that has happened in my district and it been helpful. But,

this would suggest that EPA has to get involved at every site, at

least in this manner, to get this kind of release.

I understand that there would be tens of thousands of

brownfields sites. The question is, do you really believe this administrative approach will solve the problem with so many sites involved?

Mr. FIELDS. Well, we think that, you know, prospective purchaser agreements and comfort letters are tools that have been utilized, but we think the real answer here is to have an effective

partnership between the Feds and the States. The General Accounting Office indicates that there are 450,000 brownfields sites

across the country. And, we, in the Federal Government, will not

ever be able to deal with all those sites. We have enough difficulties just being able to address the, roughly, 1,300 sites on the

Superfund National Priorities List. We believe the job, the answer

to the finality questions, is to have the States enter into memoranda of agreement with the Federal Government, to make clear

that there is a partnership where we are deferring to the State for

cleanups of voluntary cleanup of brownfields and VCP sites in that

State.

Mr. GREENWOOD. But, isn’t it the case of, if one PRP will not release another PRP from liability, that that is not going to solve the

problem?

Mr. FIELDS. Well, that is an issue that we have got to make sure

that we have to better communicate the fact that we have never

intervened. We have never intervened in an oversight of a cleanup

by a State unless that State specifically asked. We think we have

got to maintain a Federal safety net for those situations where a

State wants us to come in.

Mr. GREENWOOD. But, the problem is that a PRP can intervene—

I mean, you have got two levels here; you have got DC, Washington, the Federal Government. EPA looms over and can—you say

it hasn’t—but the problem is you can’t measure the invisible effect

of the fact that you can and haven’t. You can’t measure what that

does to property owners, potential buyers, and, also, potentially responsible parties can intervene, even if you don’t, after a State has

completed its work. Isn’t that right?

93

Mr. FIELDS. That is correct.

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

Mr. GREENWOOD. So, to fix that, we need a statutory change.

Okay.

Mr. OXLEY. The gentleman from Illinois, Mr. Rush.

Mr. RUSH. Thank you, Mr. Chairman. I don’t have a lot of questions. I just have 1 or 2.

Mr. Fields, can you go into more details about your cooperation

between EPA and local stakeholders, community organizations,

not-for-profits, universities? Exactly how is the EPA engaging the

local components, local stakeholders, in brownfields cleanups? And

can you explain, go into more detail, about how it actually works?

Mr. FIELDS. Sure. We have made very clear, since the beginning

of our brownfields initiative, in January 1995, that local stakeholder involvement is a critical component, as we cleanup

brownfields, and that has been very successful. In addition to the

grants we have given out to now 250 communities across America,

the private parties have now contributed more than a billion dollars toward cleanup. And that is part of the answer to Mr. Greenwood’s question. Private parties are actually finding that

brownfields are something they want to invest in; they are coming

to the table and are getting involved. More than 2,500 jobs have

been created.

And, we are making clear that, when we award a brownfields grant, roughly, $200,000 to one of these 250 communities, they

have to have involvement with the local community. We require,

before they can even get a grant, that there is clear demonstration

that the community is involved; the community supports this

grant; the State voluntary cleanup program is supportive of this

grant being applied for and being given by EPA. So we assure that

environmental justice and environmental and community concerns

are addressed prior to the award of a brownfields grant.

That is why we never had, in the 4-year history of this program,

we have never had a title VI complaint filed around a brownfields

site. It is because we have assured effective, coordinated community involvement upfront. So people are not filing civil rights complaints, because the communities are involved upfront, as we initiate brownfields activities in their communities. They are part of

the process. We are looking at how they can be involved in job creation, how the reuse options that are looked at in that community

are worked on with the community in mind and with community

involvement.

Mr. RUSH. Does the local, regional EPA administrator—are they

the first point of contact between the local stakeholders and the

EPA or—what functions do the regional offices, what functions do

they have in terms of this entire process?

Mr. FIELDS. Well, each regional administrator has appointed a

brownfields coordinator in their region. That brownfields coordinator works with the cities and the States who apply for a

brownfields grant, and that brownfields application, when it comes

into the regional office, that has been done with consultation by

EPA and other Federal and State staff. Therefore, the regions do

an initial screening, the brownfield coordinators, of those applications, and then the applications come to EPA headquarters, where

94

we pick the finalists and those grantees that would be selected to

be new brownfield pilots, either for assessment grants or, under the

new support of Congress, a revolving loan fund grant. But, the regions each have their brownfields coordinator that reviews them

before they come to Washington.

Mr. RUSH. Mr. Chairman, I am not sure if this should be transmitted through you, but I would like to have information regarding

my district, the first district of Illinois, the city of Chicago, and the

State of Illinois. I would like to know who has assessment grants,

who has been given loans, what organizations are involved in your

efforts there, because I am unaware of any entity, particularly in

my district.

Mr. FIELDS. We will be happy to provide that. We will be happy

to give you that. We have, by congressional district, the brownfields

grants that have been awarded and we will be happy to share that

with you, for the record.

[The information referred to follows:]

95

96

97

98

99

100

101

102

103

104

105

106

107

108

109

110

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

from Maryland, Mr. Ehrlich.

Mr. EHRLICH. I asked my colleague from Pennsylvania, Mr.

Greenwood—Jimmy, I will be glad to yield some of my time to you

because you are discussing an issue that is important to me, and

I think a lot of us here. I, certainly, want you to have your full time

because I think the question you asked was very relevant, sir, with

respect to these non-NPL sites and sites that have a State plan.

Obviously, I guess this is a philosophical view that you express,

in answer to my colleague from Pennsylvania, in the sense that he

asked you if it is possible for the Feds to sign off, and you discussed the context of various releases from liabilities, purchaser

agreements, status letters, whatever. The fact that it is your view

that you can engage in a variety of remedies, but it is your view

that you should have the final signoff, the ‘‘safety net,’’ I believe

is the phrase that you used—and, of course, as you know, it has

been asked in various ways; that is the focal point of some of our

problems. Because you have PRP’s out there who are scared; there

is a chilling effect, you know it and I know it.

But, could you further engage this area of questioning? I am just

interested in hearing, in the real world, how this plays out and

whether there is a regulatory fix or how you can better remedy this

particular situation which I know you know exists.

Mr. FIELDS. Right. I think, Congressman, one clear way is to try

to deal with the liability issue. We do not believe, however, that liability has prevented brownfields cleanup and redevelopment. A lot

is occurring. We see billions of dollars of work going on every year.

We see hundreds of sites being cleaned up across the country. We

think that what we ought to do—the brownfields bills have been

introduced, and Mr. Greenwood has been a real leader in the

brownfields agenda, and we support his work on the various bills

he has introduced.

We think that what we have for brownfields is a good mechanism

for funding. And, Congress has agreed that we should fund assessment grants and revolving loan fund grants, and some bills have

proposed that, but we really don’t think we need legislative authority for that because the authority is in the current Superfund law

to fund brownfields, to fund those activities.

Second, you need liability relief. We think, for brownfields we

need liability relief for prospective purchases; we need liability relief for innocent landowners, for contiguous property owners, who

had nothing to do with contamination that may be existing at their

properties. We believe that we ought to have liability relief for

small generators and transporters of municipal solid waste. You

know, liability relief like that is kind of——

Mr. EHRLICH. Truly innocent parties.

Mr. FIELDS. Right. We see that as part of the brownfields agenda. The types of revisions that the administration is supporting, as

part of targeted legislative reform, are the kinds of things, we believe that will help facilitate brownfields redevelopment.

Mr. Greenwood’s bills, that he has introduced—and I have reviewed those—those bills have included provisions along the lines

of what the administration is supporting. like the type of targeted

liability relief to get certain parties out of the system, so we don’t

112

have to worry about them getting entangled in transactions around

brownfields.

Mr. EHRLICH. Well, that is a mutually agreeable goal. I will be glad to yield to my colleague, Mr. Greenwood from

Pennsylvania. On the basis of that statement, Mr. Chairman, I look

forward to moving the bill out of this subcommittee shortly, but I

don’t know if Mr. Greenwood would like to follow up on that line

of questioning. I will be glad to yield. Mr. OXLEY. The gentleman from Pennsylvania. Mr. GREENWOOD. I thank the gentleman for yielding. I just want to be clear on—Mr. Fields, what is your view, ultimately, on release of Federal liability then? At what point are you

prepared to release a site from any Federal liability as a matter of

policy? Mr. FIELDS. As a matter of policy, Mr. Congressman, we believe

that the process we have outlined in our November 1996 guidance

about voluntary cleanup programs and memorandum of agreements, we believe that by signing a memorandum of agreement, as

we have done with 11 States, to date, and with other States under

negotiation, that is the best way policywise to send a signal to the

regulated community; that is an agreement between the Feds and

the States, within this particular State, whereby, we are deferring

to that State and are saying that a cleanup is being done by the

State of those that we will allow to be the appropriate cleanup for

the brownfields and the other contaminated properties in that

State. A VCP program, with an agreement signed between the Federal Government and the State, we believe policywise is the best

way to effectuate that finality. I assure you, we haven’t done it in

18 years; we do not intend now to intervene, when we have an

agreement with a State and we are deferring to them for a cleanup. I have had discussions with personnel in the Pennsylvania Environmental Department about entering into an agreement with

Pennsylvania. We want to do so. And, we think that is the best

way to assure the degree of finality we need for the regulated community. Mr. GREENWOOD. I thank the gentleman for yielding. Let me

just, if I may, 30 seconds—— Mr. OXLEY. The gentleman’s time has expired. Mr. GREENWOOD. The bottom line here is still, as a matter of policy, this administration doesn’t trust the States to—in the final

analysis, and that is a philosophical distinction that we have here,

and I can’t think of any reason why the Governors can’t be trusted

as well as the administration can’t take care of the real estate that

is in their own States.

And, I yield back.

Mr. OXLEY. The gentleman yields back. The gentleman from Minnesota, Mr. Luther. Mr. LUTHER. Thank you, Mr. Chairman. Nice to see you.

Mr. Fields, I believe that you have indicated some reasons, in

some of your prior testimony, as to why you oppose mandatary gubernatorial concurrence. And, I wonder if you could just amplify, or

expand, on that and give us your present thinking on that particular issue. Even though, as I understand it, you have concurred

with

113

States on these sites, nevertheless, you have opposed that. Seems

to me that there have been some persuasive arguments that have

been presented, and I just wonder if you could expand on that? Mr. FIELDS. We, obviously, over the last 3 years, more than 3

years now, have supported a policy of consulting with States on

listings on the NPL. We believe that, for those few sites we do list

on the NPL, it should be done in consultation with the State. We

believe that the State should be involved in the process when we

have made a determination that there are unwilling or incapable

parties who are unable to do the cleanup. And, we are all in agreement with that. We do not believe that it is necessary to be mandatory. We believe it should be a flexible process. There may be situations where the State wants us to get involved and we would not

want something that precludes that involvement. There are situations sometimes where there may be a severe public health threat,

where we may have to get involved even if a State may choose or

decide they don’t want us to be. There are situations—and we have

discovered those—where, in some cases, a State may be a responsible party. So, it will be a conflict of interest for a State, in that

instance, to say they do not want a site listed if they are, in fact,

a contributing party toward the contamination at that site. But, in general, our belief is that the current flexible policy process has worked quite well, and there is no need for a legislative

construct to mandate a Governor concurrence process in the law. Mr. OXLEY. The gentleman yields back. Mr. LUTHER. Thank you. I assume there could also be instances

where there would be more than one State involved?

Mr. FIELDS. Yes. That is a good point. There are some sites that

the impact—I know one instance where sites impact three States,

and we have seen differing views. One Governor of one State may

feel that the best approach for dealing with that site is through a

Superfund listing, and another Governor may feel that he or she

would want to address that site under a voluntary cleanup program. That is why we believe there needs to be a flexible process,

a partnership, that has gone on for more than 3 years now between

the States and the EPA in deciding how to divvy up and decide on

how to address sites within that State.

Mr. OXLEY. The gentleman yields back. The gentleman from Illinois, Mr. Shimkus.

Mr. SHIMKUS. Thank you, Mr. Chairman. Mr. Fields, could you give me the example of that one site that

has three Governors involved and where each of the three Governors may have a different view on that? Can you cite that particular specific—I mean, not now, but can you—— Mr. FIELDS. Right. Sure. I will be happy to provide. I can give

you one example. For example—— Mr. SHIMKUS. No, just give it to me in writing and the dates. Mr. FIELDS. Sure. I can do it. I will be happy to provide it for

the record.

[The following was received for the record:]

Leviathon Mine is a site that begins in the State of California, but contamination

has spread from the mine areas downstream to impact lands of the Washoe Tribe,

whose reservation straddles the California-Nevada border. The State of Nevada may

also be appropriate to consult with on this site. The Washoe tribe is extremely supportive of NPL listing, but the State of California, who is a PRP for the site, has

114

not supported listing in response to a letter requesting their support from EPA Region IX.

Mr. SHIMKUS. Because I believe that the Governors probably

could come to some type of agreement.

I am dealing with a site in Quincy, as many of you know, that

the municipal landfill was closed in 1978. It was on the ‘‘watch list’’

in 1984, NPL in 1990. The statute of limitations is quickly running

out. So, in February of this year, they sent letters to about 165

small businesses, you know, to settle versus the threat of suit to

buy the—I get the acronyms all messed up—the PRP’s; the Principal Responsible Parties.

So, this whole issue is near and dear, and I have been following it very closely for over 21 years. One settlement is $150,000, which

is the entire total revenue generated, gross, of that company in 1

year. So, it would put many of these businesses out of business just

to settle.

EPA Administrator Browner stated to this committee in the past

that innocent small -business owners were never meant to be

dragged into Superfund liability. In fact, Administrator Browner

stated that some kind of small business liability reform could be

worked out to relieve innocent small business owners of Superfund

liability.

I would like to ask for unanimous consent to submit the attached

quotes from Browner, for the record, Mr. Chairman.

Mr. OXLEY. Without objection.

Mr. SHIMKUS. And to the best of your knowledge, Mr. Fields, is

it still the position of the Administrator that small businesses, like

those in the Quincy area, are in need of relief from Superfund liability?

Mr. FIELDS. Well, we agree that there is a need to provide relief

for the particular parties around the Quincy landfill. We have

tried, as you know—we apologize for the late notification to your

office about that, but we have——

Mr. SHIMKUS. It wasn’t late notification to me. It was late notification to the businesses, and they are given 5 weeks to decide if

they are going to settle for $150,000, which wipes out their total

annual income.

Mr. FIELDS. And, as you know, it was because of a statute of limitations issue. And, we found out that the seven major responsible

parties were going to go after, in litigation, those small parties. We

want to try to protect them, and we try to provide litigation protection from the lawsuit by the major parties with these small parties,

if we can find a way to enact appropriate liability relief. We believe

that the small generator and transporter of the municipal solidwaste issue will address some of these parties——

Mr. SHIMKUS. Let me go on because I don’t have a lot of time.

Does it have to be done legislatively or can you do that administratively?

Mr. FIELDS. Well, we can do this administratively. What we are

proposing to do at Quincy can be done administratively. However,

we are concerned about, as you indicate, the issue of trying to

reach agreement on a small business exemption. That is something

we did discuss in the last two Congresses. We had difference of

opinion as to what the number of employees ought to be, what the

115

amount of money ought to be—should it be $3 million, $2 million?

Should it be 50 employees, 100 employees? We were not able to

reach an agreement or consensus among a variety of people——

Mr. SHIMKUS. Who is we?

Mr. FIELDS. I mean the House Commerce Committee, the Transportation and Infrastructure Committee——

Mr. SHIMKUS. And the administration?

Mr. FIELDS. [continuing] the Senate Environment Committee. We

had a lot of dialog on this issue, and there was not an agreement

on how we define a ‘‘small business.’’ What we have tried to offer

up and target at the reform are those things we think everybody

can quickly agree on.

Mr. SHIMKUS. Let me follow up with this question: Did the administration provide legislative language for a small business exemption in the last two Congresses?

Mr. FIELDS. No. We were specifically requested not to offer legislative language in the last two Congresses. We did——

Mr. SHIMKUS. By who?

Mr. FIELDS. Well, the authorizing committees made clear to

us——

Mr. SHIMKUS. By this committee?

Mr. FIELDS. I don’t recall. I know the Senate. I don’t know if the

chairman, specifically—we got that message from——

Mr. SHIMKUS. Let me ask the chairman; he is here. Mr. Chairman, would you accept a request, legislative language, for small

business exemption from the administration, if they were to propose some?

Mr. OXLEY. We would hope that they would add that. And, there

was never any discussion that I am aware of, to have the administration delete that language.

Mr. FIELDS. Well, we would be happy to have a dialog about that,

but we really believe that is going to be something difficult to agree

on, just because of our history in the last two Congresses about

what the definition of a small business is and who ought to be exempted. We will be happy to work with Congress. During the last

Congress, for example, as we had discussions on this topic, we

reached an agreement. We began at 25 and we arrived at a number

of 50——

Mr. SHIMKUS. Well, I think that is a hurdle that can be overcome; I really do. And, if we want some litigation relief for small

business, I think—we can start with any number—that can all be

a change. But, I would request the administration engage, if they

really believe that small business ought to have some liability protections and we ought to not close down businesses based upon

legal dumping 30 years ago.

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

Mr. SHIMKUS. I yield back my time.

Mr. FIELDS. Just a quick response, the de minimis settlements

policy we have had in place has eliminated a lot of small businesses liability. A lot of those de minimis parties are small businesses. And, second, we need to keep in mind this is something

that, you know, is going to require, we believe, some difficulty in

arriving at a definition. And, what we are proposing in legislative

relief is liability relief for small generators and transporters of muVerDate 27-JAN-2000 09:15 Feb 03, 2000 Jkt 010199 PO 00000 Frm 00118 Fmt 6633 Sfmt 6602 E:\HEARINGS\55642 txed02 PsN: txed02
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nicipal solid waste. That will get rid of a lot of small businesses liability, by that exemption that we are proposing. It is something

that we think everybody, generally, agrees on. That will help small

businesses as well.

Mr. OXLEY. The gentleman’s time has expired. The Chair would

note, just for housekeeping purposes, without objection, Mr. Greenwood’s submission also will be placed in the record, with his question, at the appropriate place.

The gentleman from New York.

Mr. ENGEL. Thank you. Thank you, Mr. Chairman.

Mr. Fields, throughout my tenure in Congress I have a high rating from environmental groups, and I pride myself in being an environmentalist. I think what you are hearing from some of my colleagues is frustration on the local level, and I want to just share

with you some of the frustration that I have as well—not in terms

of brownfields, but in terms of a water filtration plant that is being

forced down the throat of my community, despite the fact that we

feel there are alternatives, and that local people really know best

about what is best for our communities. I don’t in any way, shape,

or form, denigrate the good work that you or the Department does,

and it is work that is needed and work that is necessary.

But, one of the things that you mentioned in your testimony—

I was going over the testimony—in the brownfields section, you say

that the initiative represents a comprehensive approach to empowering States, local governments, communities, and other stakeholders interested in environmental cleanup and economic redevelopment to work together—and I think that is the keyword—to prevent, assess, safely clean up, and substantially reuse brownfields.

I think what you are hearing from my colleagues is a frustration

that, in the working together, it is not working as a partner, but

it is, sort of, ‘‘Big Brother knows best.’’ The Federal Government

knows better than you who are living in the community.

And, I would just like you to comment a little more on that, because I think it is a frustration we share across the aisle. And, it

doesn’t matter what your political philosophy is. We all represent

districts and communities of more than half a million people, and

we need to respond to our constituents. And, it is frustrating when

you are sort of being knocked over the head and told that, no matter what you do, you don’t know best; we know best.

Mr. FIELDS. I appreciate that concern. As Mr. Shimkus talked

about the Quincy situation, we recognize how sometimes we may

come across as being heavy-handed and sometimes not caring. But,

I assure you, the first reform agenda that the Administrator announced when she came onboard in February 1993, she said ‘‘I

want to do something about this fairness problem in the Superfund, where we need to be going after people who should not be

caught in the Superfund liability net.’’ That is why she announced

the de minimis and de micromis settlements initiative—to get

small parties, small businesses, and others, out of the Superfund

system. We did not want them to be there, and, oftentimes, we do

not intend for them to be caught up in Superfund. But, unfortunately, third-party litigation causes these parties to be there.

We want to try to do all we can to get those people who should

not be in Superfund out of this system. And we worked over the

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last 6 years, through our administrative reforms, to do so. The

brownfields initiative, where we are giving grants directly to local

governments, as opposed to a passthrough to the States, is one way

we have tried to do all we can over the last 6 years to try to reach

out to the communities directly, get involved with them, hear their

concerns, and come across as a more caring, more fair government

to our citizens. It does not always work. We recognize we still have

a lot of work to do, but we think we have demonstrated a willingness to deal with local governments, deal with local communities,

in a more effective and more useful way.

The Superfund program has given out more than 200 technical

assistance grants to local communities over the last 10 years. We

have established community advisory groups at more than 40

Superfund sites. These are all things we are doing to try to find

ways in which we can reach out to communities, reach out to local

governments, and deal with things in a community-based way. We

have not always been successful, but, I assure you, it is a major

priority for this administration.

Mr. ENGEL. I just want to also use some of your words in the testimony to just kind of make a point the other way. In your conclusion, you wrote that the administration has achieved, in protecting

public health, significant progress which must not be undermined

by the passage of Superfund legislation based upon outdated information and ideas. And, I would just say that the outdated information idea really cuts both ways. There are some things in law which

mandates things, and, again, it’s got nothing to do with you, but

I want to use it to make a point about the water filtration plant.

We are told that there is a cutoff in 1992 for alternatives to filtration and, once you reach 1992, beyond that, it is too bad; no

matter what the community comes up with, there can be no alternatives. And, I just have legislation which says that if a community

can come up with reason or new technology as to what can happen

as an alternative to filtration, we shouldn’t be constrained by an

artificial cutoff date in legislation that was passed several years

ago, but we should be utilizing new technology. So, I just want to

say, when we talk about outdated information ideas, it really cuts

both ways.

Mr. OXLEY. The gentleman’s time has expired. The gentlelady

from New Mexico.

Mrs. WILSON. Thank you, Mr. Chairman. Listening to some of

the questions on both sides of the aisle, and the responses, I now

understand why we need significant Superfund reform, if we can’t

achieve some of the things that need to be done administratively.

And, it seems to me, there is resistance in doing that, and I am

disappointed by that.

I would like to ask you some questions, both specific and general

ones. Last October, I asked the EPA about the Atcheson, Topeka,

and Santa Fe site that is in my district. On May 12, 1998, EPA

gave Chairman Bliley a list of sites that would be affected by fiscal

year 1999 funding. And then, 6 days later, it came out with a completely different list which added 111 different sites to that list.

When I asked, ‘‘Why the difference?’’, the answer I got was that

‘‘the list is a dynamic list which may change;’’ ‘‘there is new inforVerDate 27-JAN-2000 09:15 Feb 03, 2000 Jkt 010199 PO 00000 Frm 00120 Fmt 6633 Sfmt 6602 E:\HEARINGS\55642 txed02 PsN: txed02
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mation about physical site conditions or responsible-party involvement at a site changes.’’

I guess I have a couple of questions about that. First, since it

seems to change so rapidly, is the Atcheson, Topeka, and Santa Fe

site on the list today? What changed in 111 sites in 6 days to justify such a significant change in the site list? And, what are the

criteria used to determine how appropriations will be used to

prioritize cleanups?

Mr. FIELDS. Well, I don’t have a full response on the 111-site list,

but I can address the other two parts of your question now.

The Atcheson, Topeka, and Santa Fe site is one that, in hindsight, maybe we should have made another decision on how we proceeded with cleanup. We made a decision to give the responsible

party the lead on doing the remedial investigation feasibility study.

Sometimes we make a judgment that we want to do that ourselves

as a fund-lead action. We made a judgment here to let the PRP

take the lead. I am happy to say that it is near completion. They

are scheduled to have the remedial investigation report done by

April and the feasibility study done by June, and a proposed plan

issued by the summer.

It is unfortunate that this has taken almost 3 years. We would

have liked for it to have gone faster, but there were delays. We

have tried to work with the State of New Mexico and the responsible party. Sometimes we make the wrong judgment. Sometimes

we don’t allow the responsible party to do it and we go on and do

it ourselves. Maybe, in this case, we should have done that and

maybe this would have been done faster.

So, we apologize for the amount of time it has taken to do this

remedial investigation and feasibility study. It should not have

taken this long, and we regret that.

In terms of how we set priorities for cleanup, we do each year

rank sites and make decisions as to which ones get dealt with first.

We have adopted a risk-based priority system. We rank about 50

sites a year. Based on health risks, based on uses of innovative

technology, and other factors, we decide which sites get funded

first. We can’t always fund every site that is in the cue, but we try

to make sure that the sites that have the most significant priority—and that priority is established on a national basis by the

representatives of all 10 regions. We then decide which one gets

funded first in the cue, and we don’t deviate from that priority

order in deciding which ones get funded.

That is why, when responsible parties are willing to step forward, we are willing to let them take the lead, if we think they can

do a good job, because it allows us to get that job done and not be

contingent upon whether or not there is fund money available to

establish that priority.

Mrs. WILSON. Thank you, Mr. Fields. I wonder if you could be

just real clear and short and specific here. Is the AT&SF site in

the fiscal year 1999 funding stream?

Mr. FIELDS. Yes. The work will be completed in fiscal year 1999

for the AT&SF site, I assure you.

Mrs. WILSON. And, do you have any explanation for why it was

on one list and not on another list released by the EPA?

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Mr. FIELDS. I do not know why it was on the one list and not

the other.

Mrs. WILSON. There is a tremendous fear—if I may just finish

this question—there is tremendous fear in the community about

being put on a Superfund list, because it leads to economic ruin in

the neighborhood. You are not going to have economic development

at the neighborhood with a Superfund site, and we have seen that

in my district. And, we are potentially facing it again.

What can you offer as possible solutions, given at AT&SF we

have been waiting 7 years to even get anything started since it was

listed as a Superfund site, and we see this economic devastation?

What can we do legislatively to change this, so that we can clean

up the environment, but we don’t destroy people’s neighborhoods

and livelihoods in the process?

Mr. FIELDS. I think that equation is changing. We have found

that Superfund sites are very valuable properties. They are located

near rail yards; they are located near waterfronts. We have seen

tremendous success stories. I think I may have cited before you

came in—we have got 160 cases where major reuse, redevelopment,

has occurred on Superfund sites while they are under construction.

So, the NPL stigma is not what it used to be, you know, 10, 15

years ago. We are finding major reuse for shopping centers; transportation centers are being created on living, existing, Superfund

sites where our construction is underway. So, I don’t think that

that stigma is there like it used to be. People are investing and

reusing many of these Superfund sites.

Mrs. WILSON. Thank you, Mr. Fields. That is not happening in

Albuquerque, New Mexico, but I am glad it is helping elsewhere in

the United States. Thank you.

Mr. OXLEY. The gentlelady’s time has expired. The gentleman

from Louisiana, vice chairman of the subcommittee.

Mr. TAUZIN. Feels good to see you again, sir.

Mr. FIELDS. Good to see you, sir.

Mr. TAUZIN. The fact is, I am sure you know that last year we

filed a bill to limit the pool of PRP’s that the EPA could name in

an enforcement action under section 107. I want to thank the

chairman, by the way, for incorporating that bill into his larger

comprehensive legislation. But, the problem remains that EPA’s

enforcement under section 107 has, literally, proved to me rather

Draconian for many small businesses.

Chairman Bliley talked about that incredible series of lawsuits

that flow from it in sort of a pipeline of lawsuits that almost never

ends. And, I happen to think it is because of the badly drafted language of section 107. But, I don’t blame EPA for the language of

the statute. And, I appreciate your response to the chairman in

terms of what you are trying to do to ameliorate some of the more

serious consequences of that pipeline of litigation. But I want to

site you a bunch of quotes.

James Stock, the California Secretary of Environmental Protection, ‘‘Superfunds have become a bonanza for lawyers and consultants.’’

The President of the United States, himself, ‘‘We all know it

doesn’t work, Superfund has been a disaster.’’ The word ‘‘disaster’’

comes up several times in all of these quotes, by the way.

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The former chairman of this subcommittee, Mr. Al Swift, ‘‘The liability scheme is unfair, litigious, a policy disaster.’’

‘‘Disaster’’ keeps coming up in characterizing this litigious

scheme we have created—almost so that I almost think we ought

to have a bill to invite the FEMA to come in and rescue the program in some fashion. What strikes me, in looking at what people

say about the program, is that even the lawyers are on our side,

to some extent. The editorial writers are on our side in wanting to

reform the statute.

The New York Times editorial of 1994, February: ‘‘It has failed

the efficiency test. The $13 billion spent, one-fourth has gone to

what are euphemistically known as transaction costs, fees to lawyers and consultants, many of them former Federal officials who

spun through Washington’s revolving door to trade their Superfund

expertise for personal gain.’’

USA Today puts it even more pedestrian, of course, but USA

Today says: ‘‘Superfund is absurdly expensive, hideously complex,

sometimes patently unfair. As a result, it invites litigation the way

dung attracts flies.’’ That is a pretty awful, but I think somewhat

accurate description—so much so that the lawyers, the flies depicted in the editorial, themselves, are revolting.

I quote from a 1997 letter from Robert Evans, Director of Governmental Affairs, American Bar Association, to Sherry Boehlert,

one of our colleagues. While massive time-consuming litigations

may perhaps provide short-term pecuniary benefits to some in the

legal profession, the American Bar Association and the attorneys it

represents have no desire to stand by idly and profit from other

people’s misery.’’ That is the lawyers talking.

I mean, so we are down to this: we have got, roughly, 1,400 sites

that have been listed on the NPL; the EPA has already instituted

enforcement actions on about 200 of them. That leaves you with a

potential to begin enforcement action on 1,200 new actions, if you

wanted to.

And, in the light of this, it is more likely, is it not, that the current liability scheme is going to continue to foster the endless

streams, the pipelines of litigation, that ends up touching human

beings so disastrously as it has? I have got testimonies here—we

have heard them before—of little people in our society getting crucified on this cross of unjust and unending liability schemes.

It seem to me, Mr. Fields, we are down to the issue: Is it because

of the EPA’s enforcement of section 107 or is it the statute? And,

if it is not the EPA and it is the statute, why can’t you join us in

ending this awful, litigious scheme, the way the President himself

said in his first State of the Union to us, ‘‘I would like to use

Superfund to clean up pollution instead of paying the lawyers.’’?

Why can’t we just come to that agreement here in this government? Stop putting people through this horrible maelstrom of litigation that ends up robbing people of their energies and their resources, that ought to be better directed in this country, and simply

change the statutes so you don’t have to work your way around it,

the way you described to the chairman. Can’t you help us do that?

Mr. FIELDS. Can I give one quick response?

Mr. TAUZIN. You’ve got it.

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Mr. FIELDS. We recognize those statements, and we recognize

that people have those views. I think that some of those people you

quoted would not have those same views today, 6 years later, in

come cases. We believe that the comprehensive legislative reform

agenda is not necessary now. We in the administration, including

Carol Browner said, in 1993, that Superfund was something that

really needed to be fixed and there were major problems. Carol

Browner does not share the same view, 6 years later, that she had

in 1993.

Mr. TAUZIN. My time is up. I just want to get a straight answer.

Is it the EPA’s fault then? If it is the statute, why don’t you help

us change it? Otherwise, tell me, today, that it is EPA’s fault.

Mr. FIELDS. Well, it’s not necessary now because of where we are

in the program. Half the sites have been cleaned up, construction

completed. And, in 5 years, I am telling you——

Mr. TAUZIN. I am talking about the litigation pipeline, not the

cleanup.

Mr. FIELDS. But when you have already made the decisions on

90 percent of the sites, and we have already implemented effective

reforms that get out the de minimis parties, and we are suggesting

to you that we can put in place liability relief for perspective purposes, innocent landowners, contiguous property owners, that is the

kind of liability relief we think we really need. The other type of

liability relief is not really necessary to implement an effective program that is fair to the American people as well as the parties involved in this program. We really don’t believe that.

Six years ago we were at comprehensive legislative reform for

several Congresses. Now, at this point of where we are in this program, and seeing the end of the current Superfund program in

sight, we no longer believe that comprehensive legislative reform is

necessary.

Mr. TAUZIN. And leave all those people hanging out there in all

those courtrooms?

Mr. FIELDS. We don’t think they are going to be hanging out

there.

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

from Oklahoma.

Mr. LARGENT. Thank you, Mr. Chairman.

Welcome, Mr. Fields. It’s almost over. I hope you feel better

about that. You will sleep well tonight.

I was interested when you made the comment that you have had

trouble with the last two Congresses on coming to an understanding on certain definitions like the small business exemption.

That doesn’t surprise me. We have had trouble coming to an understanding on the definitions like what the word ‘‘is’’ means and

things like that. I wanted to see if we could come to some understanding on the definitions on your chart over here: Pace of cleanup

is accelerated. Do you recognize that chart?

Mr. FIELDS. Yes, sir.

Mr. LARGENT. I am looking at this and seeing that, from 1996

to 1998, there were—I wrote this down—88 sites cleaned up. From

1997 to 1998, there were 87 sites cleaned up. And, then you are

projecting, from 1998 to 1999, that there will be 85 cleaned up. So,

we went from 88 to 87 to 85, and I am just wondering if we can

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come to some agreement on the definition of ‘‘pace’’ and ‘‘accelerated.’’ Because, to me, that seems like that number is going down,

and not up, and that would not be an acceleration in the way I

would define acceleration. How do you define acceleration?

Mr. FIELDS. When I define acceleration, I mean an increase in

the pace; something is moving faster. And, what I was referring to,

as you look at the prior 3 years, prior to the 3 years you just referred to, we were doing an average of 65 construction-completions

a year, and now we are doing an average of 85. Our budget target,

the budget we submit to Congress, provides for the payment of 85

construction-completions a year with a $1.5 billion budget. The fact

that we achieved 88 in 1987, what that meant was we did more

than we were budgeted to do in those particular years, but, actually, our budget provides for 85. That is a great achievement, I believe. You have a third greater number of cleanups that are going

on now for these 3 years than we had in the prior 3 years. I think

that is an acceleration of the pace of cleanup.

Mr. LARGENT. Mr. Fields, have you ever heard the term, ‘‘What

have you done for me lately?’’

Mr. FIELDS. Yes, I have heard that term.

Mr. LARGENT. I heard it a lot, too, in my former life. My question

here is really a very simple one. In your view, is the Superfund

Program working?

Mr. FIELDS. I think, as someone who has been involved in this

program now for 15 years, I believe the Superfund Program is

working. I have reports that have been done by various organizations on this program: the Information Network for Superfund Settlements, the Chemical Manufacturers Association. We can provide

these reports to this committee for the record, but many parties

have documents—the General Accounting Office, in their reports, I

think they have done studies of our program probably more than

any other organization. I think there are many reports, there are

many documents, that point to the fact that progress in this program has improved; things are better than they were five to 6

years ago.

[The information referred to follows:]

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124

125

126

Mr. LARGENT. What is the average length of time it has taken

to clean up these sites?

Mr. FIELDS. The average length of time now, at the current time,

Congressman, is 8 years on the average.

Mr. LARGENT. I am talking about the sites that were cleaned up

in 1996, 1997, and 1998.

Mr. FIELDS. That is 8 years. An average of 8 years.

Mr. LARGENT. And is that number going down or is it increasing?

Mr. FIELDS. The number has gone down. It used to be, on the average, in 1991, 1992, 10 years from the time a site was listed on

the NPL until construction was complete. We have now reduced

that by 20 percent down to 8 years. That is one of the reasons we

are now able to do 85 sites a year as compared to 65 sites a year,

you know, more than 3 years ago.

Mr. LARGENT. And, so, is it the administration’s view, and your

view, Mr. Fields, that we should re-authorize the taxes for the

Superfund without any reforms to the Superfund Program?

Mr. FIELDS. We believe that Congress should reinstate the taxes

for the Superfund to allow there to be a balance in the trust fund,

but that we no longer need comprehensive, broad-scale legislative

reform, but we only need targeted liability relief for certain parties.

That is our conclusion now, because we believe the reform agenda

will allow us to continue to do 85 sites a year for the next 5 years,

funded at today’s budget level, for the Superfund program. We

don’t need comprehensive legislative reform to continue cleanup, at

the pace we are doing it, and to provide for liability relief and to

provide for more fairness to parties affected by the Superfund program.

Mr. LARGENT. Thank you, Mr. Fields.

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

from New York, Mr. Fossella.

Mr. FOSSELLA. Thank you, Mr. Chairman.

Mr. Chairman, I want to place into the record and show Mr.

Fields several items.

Mr. OXLEY. Without objection

[The information referred to follows:]

SUPERFUND LITIGATION DELAYS CLEANUPS

• ‘‘On a site by site basis, it is clear that liability negotiations consume a lot of time

and delay completion of the site.’’—EPA Inspector General in testimony before

House Subcommittee on Government Reform and Oversight, May 1996.

• ‘‘For nonfederal sites, the time required to complete cleanups increased from 2.4

years in 1986 to 10.6 years in 1996 . . . EPA officials also said that the effort

to find the parties . . . and to reach cleanup settlements with them can increase

cleanup times.’’—Government Accounting Office Report, Superfund, Times to

Complete the Assessment and Cleanup of Hazardous Waste Sites, March 1997.

• ‘‘One of the most significant delays that occurs in the Superfund process is the

allocation of liability among responsible parties.’’—Statement of Carol Browner,

Administrator, U.S. EPA, before a hearing of the Subcommittee on Transportation and Hazardous Materials on May 13, 1993.

• ‘‘I think we all agree that the transaction cost portion is one due very serious

evaluation and consideration. Again, I do not think we could have predicted 12

years ago that the result of the law would be that responsible parties suing responsible parties—insurance companies, I mean, the level of legal actions that

would take place. We need to do something to address it.’’—Statement of Carol

Browner, Administrator, U.S. EPA, before a hearing of the Subcommittee on

Transportation and Hazardous Materials on May 13, 1993.

• ‘‘Superfund has been a bonanza for lawyers and consultants . . . After over a decade of delay, cleanup is only now beginning at the McColl site in Fullerton . . .

cleanup was continually put off as various defendants wrangled in court over

how much they would pay’’.—James M. Strock, California Secretary for Environmental Protection, 1994.

• ‘‘Hastings . . . has already spent roughly $1.1 million under Superfund, yet the

cleanup is far from completed. More than 90 percent of the money has been

spent on consultants and legal fees.’’—Governor Ben Nelson, Nebraska Journal,

March 1, 1996.

• ‘‘While massive, time-consuming litigation may perhaps provide short-term pecuniary benefits to some in the legal profession, the American Bar Association and

the attorneys it represents have no desire to stand by idly and profit from other

people’s misery.’’—May 21, 1997 letter from Robert D. Evans, Director of Governmental Affairs, American Bar Association to Rep. Sherwood Boehlert.

• ‘‘Each of us has heard concerns from our constituents that the pace of cleanup

is too slow; that more money is being spent on litigation than on cleanup activities; that citizens are not properly involved in cleanup decisions; and that program costs are unnecessarily high.’’—Letter from Senators Robert Byrd and

John Rockefeller to Senator John Chafee, Chairman, Senate Environment and

Public Works Committee, dated June 25, 1997.

• ‘‘One site in particular has escaped the effectiveness of CERCLA simply because

there are 18 or more PRPs and CERCLA clearly provides the right to litigate.

The litigation is not aimed at the regulatory agencies but instead at the PRPs

themselves.

With over 20 million dollars spent on characterizing Fields Brook at least half has

been devoted to suing non-participating PRPs by participating PRPs; PRPs

against other PRPs to determine who put how much into the Brook; Who’s material was more toxic and should they pay more than less toxic polluters: litigation against insurance companies to pay for the disposed materials of PRPs they

insured and on and on.’’—Statement of Leonard E. Eames, Owner Operator, Fish

City Marina, Ashtabula, Ohio before a Hearing of the Subcommittee on Finance

and Hazardous Materials, February 14, 1997.

• ‘‘The uncertainties, disagreements, and litigation produced by these aspects of

joint and several liability have imposed delay, profound resentment, and high

transaction costs on the basic process of achieving cleanups . . . [t]he basic

mechanism for funding Superfund cleanups is fundamentally unfair and extremely inefficient. This problem cannot be solved by EPA’s administrative reVerDate 27-JAN-2000 09:15 Feb 03, 2000 Jkt 010199 PO 00000 Frm 00130 Fmt 6633 Sfmt 6621 E:\HEARINGS\55642 txed02 PsN: txed02
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forms . . .’’—Statement of Michael W. Stienberg, on behalf of the Superfund Settlements Project in a Hearing before the Subcommittee on Water Resources and

Environment, April 10, 1997.

• ‘‘Now, almost 15 years later, the matter is about to be fully and finally settled.

In the interim, EPA spent approximately $1,300,000 investigating the site. Additionally, our company spent almost $500,000 in attorney’s fees and consulting

fees over the period. And for what? The actual cleanup of the site, which EPA

ordered and oversaw, cost approximately $38,000 . . . It took over 15 years and

cost our company nearly $2 million in professional fees, lost profits, and environmental studies, all for the sake of a $38,000, 2-day cleanup, which resulted

in three truck-loads of nonhazardous dirt being trucked to Oklahoma.’’—Statement of Michael Mallen, Southern Foundary Supply Company, Subcommittee on

Water Resources and Environment, June 15, 1995.

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Mr. FOSSELLA. Thank you, Mr. Chairman. Mr. Fields, the first set is just quotes from numerous parties to

the effect that litigation delays cleanups, and the second set of

charts that were presented at prior hearings by Mr. David Oward.

The charts indicate that sites with numerous parties to litigate and

negotiate will take substantially longer to go through the Superfund process than parts where there are fewer parties. The charts

graph the percentage of sites that have reached construction-complete versus the number of parties per site. Did you find that, Mr. Fields?

130

Mr. FIELDS. Yes, I see it.

Mr. FOSSELLA. And, this data, I understand, is a few years old.

Do you agree with the thrust of these charts or what these charts

seek to represent?

Mr. FIELDS. You mean the totality of these statements?

Mr. FOSSELLA. Well, first and foremost, are the charts themselves, the number of parties besides——

Mr. FIELDS. Oh, I am sorry. I am looking at your charts. Okay.

Mr. FOSSELLA. [continuing] average time to construction-complete and the numbers of parties per site. The second chart is the

percentage of sites that have reached construction-complete relative to the number of parties per site. Are you familiar with these

at all?

Mr. FIELDS. Yes. I am looking at these charts now. Yes, I see

them. We can’t say categorically that the number of parties associated with the site will cause that site to take longer to clean up,

but that is why we want to introduce targeted liability relief, to get

certain parties out of the Superfund system, so we can then only

have to negotiate with those larger parties who are the major contributors to contamination at sites. Those are the parties that we

primarily focus on. We don’t want to focus on all the de minimis

and de maximus parties that are involved in cleanup.

Mr. FOSSELLA. So you agree that, the more parties there are, the

longer it is going to take to complete?

Mr. FIELDS. Well, I can’t say that that is going to be always the

case. I have seen sites where you have a few hundred parties and

the site can be cleaned up in less than 8 years. I have seen other

sites where we only have two or three parties, and it has taken us

10 years. So, you can’t always just say that the number of parties

equates to the length of time it is going to take for cleanup.

The best I can say here, Congressman, is we will be happy to review this data. This is the first time I am actually seeing this data

today. I would be happy to review it and get back to you in writing

with our analysis of this, but I don’t know what sites this data represents.

But I have seen it both ways. I have seen a number of sites with

large parties get done quickly. I have seen sites where a fewer

number of parties take a long time. So, in general, I can’t say it

is a one-to-one correlation between number of parties and the

length of time it takes for cleanup. But, I would be happy to review

this data and get back to the subcommittee in writing.

Mr. FOSSELLA. Okay. Thank you.

[The following was received for the record:]

During the March 23, 1999, Representative Fossella presented a graph developed

by a Mr. David Alward of National Strategies which asserted that the greater the

number of Potentially Responsible Parties (PRPs) at a Superfund site, the longer

that site takes to get from final listing on the NPL to site construction completion.

Mr. Fossella asserted that in the greater number of PRPs at the site, the more

third-party contribution litigation which in turn results in cleanup delays.

In fact, in looking at the sites in the analysis we found that there are a number

of sites with large numbers of PRPs, (over 300) where the time to get from final

listing to construction completion was 8 years or less. For example, the Cannon Engineering Site in Massachusetts which was completed in just slightly over 8 years

had nearly 500 identified PRPs. Similarly, the Union Chemical site in Maine had

over 400 PRPs but was completed in less than 8 years.

131

Conversely, we identified a number of sites in Mr. Award’s analysis with relatively few PRPs (5 or less) which took over 16 years to complete. In fact, at the

United Nuclear site in New Mexico, only 1 PRP was identified by EPA but it still

took over 15 years to get from final listing to construction completion. Similarly, the

Stanley Kessler site in Pennsylvania had only 5 identified PRPs but still took over

15 years to complete. We believe that there are numerous factors which affect site

cleanup duration, including site complexity, site size, numbers of contaminants,

community interest at the site. However, we believe that no single factor consistently influences site duration.

With respect to enforcement delays, this belief is supported by a GAO report

issued in September 1994 on the Status, Cost, and Timeliness of Hazardous Waste

Site Cleanup (GAO/RCED-94-256) that found that ‘‘Cleanup Times Are Similar for

Fund- and Responsible Party-Financed Work’’. In that report, GAO found that ‘‘Our

analysis of EPA’s data shows little difference in the average times taken to complete

each of our four phases of cleanup that we measure for both fund- and responsible

party-finance cleanup work.’’

Sites and Associated Durations

EPA ID Number Site Name # of

PRPs Duration

Low PRP/High Duration Sites

PAD014269971 .................................. Stanley Kessler ......................................................................... 5 15.2 years

NYD980652267 .................................. Vestal Water Supply Well 4-2 .................................................. 6 15.1 years

NMD030443303 ................................. United Nuclear Corp ................................................................. 1 15.1 years

FLD980727820 .................................. Kassauf-Kimmerling Battery Disp ............................................ 2 15.1 years

NJD980529713 .................................. Reich Farms .............................................................................. 1 15.1 years

ARD00023440 .................................... Vertac, Inc ................................................................................ 2 15.0 years

High PRP/Low Duration Sites

MOD000829705 ................................. Conservation Chemical ............................................................. 300 1.9 years

KYD980557052 .................................. Lee’s Lane Landfill ................................................................... 141 4.5 years

WID980610141 .................................. Sauk County Landfill ................................................................ 110 5.9 years

WAD980833974 ................................. Northwest Transformer ............................................................. 178 7.8 years

MED042143883 ................................. Union Chemical Co., Inc ........................................................... 403 8.0 years

ALD031618069 .................................. Mowbray Engineering Co .......................................................... 119 8.0 years

MND980704738 ................................. Washington County Landfill ..................................................... 750 8.0 years

MAD079510780 ................................. Cannon Engineering Corp ......................................................... 478 8.1 years

Mr. FOSSELLA. Let me just read, Mr. Chairman, and for the

record, see if you agree or disagree with some of these folks. For

example, the Governor of Nebraska, Mr. Ben Nelson, the March 1,

1996 Hastings program he was dealing with in Nebraska has already spent $1.1 million of the Superfund; yet, the cleanup is far

from completed. More than 90 percent of the money has been spent

on consultants and legal fees.

Or, Mr. Strock, California Secretary for Environmental Protection, 1994: ‘‘Superfund has been a bonanza for lawyers and consultants. After a decade of delay, cleanup is only now beginning at the

McCall site in Fullerton. Cleanup was continually put off as various defendants wrangled in court over how much they would pay.’’

Or, at the top of the page there: ‘‘On a site-by-site basis, it is

clear that liability and negotiations consume a lot of time and delay

completion of the site.’’ That was from the EPA Inspector General

in testimony before the House Subcommittee on Government Reform and Oversight in May 1996.

Or, for example, according to the GAO, ‘‘Superfund times to complete the assessment and cleanup of hazardous waste sites in

March 1997. For non-Federal sites, the time required to complete

cleanups increased from 2.4 years in 1986 to 10.6 years in 1996.’’

EPA officials also said that ‘‘The effort to find these parties and to

132

reach cleanup settlements with them could increase cleanup

times.’’

Does any of this——

Mr. FIELDS. I have heard and I have seen the reports that you

are referring to. We strongly disagree with the statements on duration; we do not believe that data. It does not take 10.6 years to

clean up a site. And, we stand by our data which shows that the

length of time it takes to go through the cleanup process has, in

fact, been decreased by 20 percent. So, we do not agree with some

of those statements in the reports that you are mentioning.

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

And, Mr. Fields, we appreciate your testimony and your appearance before the subcommittee once again. Thank you very much.

Mr. FIELDS. Thank you, Mr. Chairman.

Mr. OXLEY. The Chair would call our next panel. Mr. Peter F.

Guerrero, Director of the Environmental Protection Issues of the

GAO, General Accounting Office, and Ms. Claudia Kerbawy, Chair

of the Federal Superfund Focus Group, Association of State and

Territorial Solid Waste Management Officials.

Thanks to both of you for your appearance.

STATEMENTS OF PETER F. GUERRERO, DIRECTOR, ENVIRONMENTAL PROTECTION ISSUES, GENERAL ACCOUNTING OFFICE; AND CLAUDIA KERBAWY, CHAIR, FEDERAL SUPERFUND FOCUS GROUP, ASSOCIATION OF STATE AND TERRITORIAL SOLID WASTE MANAGEMENT OFFICIALS

Mr. GUERRERO. Mr. Chairman, if I can take the liberty of having

two of my colleagues with me?

Mr. OXLEY. Yes, would you identify them, for the record, please?

Mr. GUERRERO. Eileen Lawrence on my right and Jim Donaghy

on my left.

Mr. OXLEY. Thank you. Mr. Guerrero. You may proceed.

Mr. GUERRERO. Thank you, Mr. Chairman, for this opportunity

to talk about GAO’s work on the Superfund Program. As has been

mentioned earlier today, that body of work is quite extensive. My

comments today will focus on three issues: the pace of cleanups,

program management, and the remaining future workload.

First, to Superfund’s pace. Even though cleanups have taken a

long time to accomplish, if the Superfund maintains its current

pace, the Superfund Program will complete the construction of

cleanup remedies at the great majority of current sites within the

next several years. This is largely because few new sites have been

added this decade. In fact, 89 percent of Superfund sites entered

the program between 1982 and 1990. So, most sites have been in

the cleanup process long enough to finally have moved beyond the

remedy-selection phase.

In my written statement, there is figure 1, which shows the number of sites listed by year and shows this trend. EPA plans to complete, by the end of this year, selection of remedies for about 95

percent of the non-Federal sites in the program. EPA reports that

it has completed the construction of cleanup remedies at 585 sites

as of January of this year, and will finish a total of about 1,200

sites by the end of the year 2005. However, groundwater cleanups

will continue at some sites for many years beyond that date.

133

I now would like to turn to my second point, the longstanding

management problems of the program. For several years, GAO has

included Superfund on its list of Federal programs that pose significant financial risk to the government and the potential for

waste and abuse. We included Superfund on the list for three reasons: first, because of the problems with the management of cleanup contractors; second, because of insufficient recovery of cleanup

costs from responsible parties; and, third, because there was no assurance that the highest-risk sites were being cleaned up first.

EPA has corrected some of these problems, but enough remain that

we have not yet been able to remove Superfund from the high-risk

list.

For example: we reported that EPA had difficulty controlling the

overhead costs of its contractors. To ensure that it had enough contractors to conduct cleanups, EPA initially hired a very large number—more, it turned out, than it needed. Even though it did not

have enough cleanup work to keep them all busy, it still had to pay

their overhead costs. For example, the cost of maintaining the capacity to respond to work assignments requires office space. Although EPA subsequently cut in half the number of Superfund contractors, our recent work indicates that this reduction may not

have been enough, since overhead rates remain high, at about 76

percent, in one particular case.

We have also reported that EPA has not charged responsible parties for certain costs of operating the cleanup program—mainly, indirect program costs such as personnel and facilities. Over the

years, EPA has lost the opportunity to recover up to $3 billion, or

about 20 percent of the $15 billion it has spent on Superfund

through fiscal year 1997. Recently, EPA has developed a new way

to determine recoverable indirect costs that could increase its recoveries.

The final Superfund issue we discussed in our high-risk series is

the absence of a priority system for cleaning up sites, one that is

based on risks to human health and the environment. In 1995,

EPA created a national panel to help it set funding priorities for

the final stages of cleanup. However, EPA doesn’t have assurance

that sites posing the greatest risks are admitted to the program in

the first place. In our discussions with EPA, we found that the

agency relies on the States to screen sites for cleanup under Superfund. Because of this reliance on the States, EPA may not be aware

of the sites that pose the greatest health and environmental risks.

And, because EPA does not usually track the stages of cleanups

that take place outside of the Superfund program, EPA does not

know if the States are addressing the worst sites.

EPA’s cleanup managers have also expressed concerns that the

future Superfund sites will not necessarily be the most risky, but,

rather, those that the States find to be large, complex, and therefore, costly, or those without responsible parties willing and able to

pay for the cleanups.

In addition to our work in the high-risk aspects of the program,

we also conducted a detailed analysis of Superfund spending. In

summary, we have reported that, while the share of Superfund expenditures that go to cleanup contractors, or the study, design, and

implementation of cleanups, increased from fiscal year 1987

134

through 1996, it declined in 1997 and appears to continue to decline. This trend is in the wrong direction for a program; that,

given its maturation, should be focusing more of its resources on

actual cleanups and less on program support. Those trends are

shown in figure 2 in my prepared written statement.

Finally, Mr. Chairman, I would like to turn to what is perhaps

the most vexing issue of all, and that is how to deal with the sites

that may still require cleanup. As of the end of fiscal year 1997,

there were still some 1,800 sites judged by EPA as to be potentially

eligible for Superfund. Many of these sites present risks to human

health and the environment. According to EPA and the States, 73

percent have caused contamination of groundwater; another 22 percent could contaminate groundwater in the future. About 32 percent of the sites caused contamination of drinking water, and another 56 could do so in the future. Ninety-six percent are located

in the populated areas within a half a mile of residences or places

of regular employment. And direct contact with contaminants may

occur at 55 percent of the sites. Over all, either EPA or the States

say that about a quarter of these sites pose high risks to human

health and the environment, and that is shown in figure 3 of the

prepared statement.

Although these sites have been around for a long time, 10 years

in most cases, many may not be getting attention. We are able to

confirm that some cleanup activities have taken place at only about

a third of the potentially eligible sites. And, these were activities

not described as final cleanups.

There also appears to be no relationship between how long a site

has been awaiting an NPL decision and the likelihood that some

cleanup has occurred during that time. It is uncertain when and

how most of these sites will, ultimately, be cleaned up, as shown

by figure 4.

EPA and State officials identify 232 sites that might be placed

on the NPL in the future. Officials estimate that a third of the potentially eligible sites are likely to be cleaned up under State programs. However, we were also told by the States that their capability to undertake these cleanups varies. Half of the States express

concerns about their financial capacity to clean up potentially eligible sites, and another 20 percent say that their ability to compel

responsible parties to clean up sites was fair to very poor.

Our November report recommends that EPA review its inventory

of sites to determine which of them need immediate action and

which will require long-term cleanup, and, in consultation with the

States, develop a timetable for taking these actions. Given the long

time that many of these sites have awaited NPL decisions, it is

also imperative that EPA notify the public whether it or the States

will assume responsibility for the sites, whether cleanups are, indeed, needed, and when the cleanup work can be expected to be

done.

In conclusion, Mr. Chairman, despite the long durations of cleanups in the past, Superfund is within sight of completing the construction of cleanup remedies over the next several years. While

recognizing this accomplishment, we believe that important management issues remain unsolved. More importantly, EPA and the

States need to come to grips with what to do with the potential

135

1Superfund: Times to Complete the Assessment and Cleanup of Hazardous Waste Sites (GAO/

RCED-97-20, Mar. 31, 1997).

NPL sites still waiting final cleanup decisions. The Superfund reauthorization process gives the Congress an opportunity to help

guide EPA and the States in allocating responsibility for these

sites, and others that may qualify for the program in the future.

Thank you.

[The prepared statement of Peter F. Guerrero follows:]

PREPARED STATEMENT OF PETER F. GUERRERO, DIRECTOR, ENVIRONMENTAL PROTECTION ISSUES, RESOURCES, COMMUNITY, AND ECONOMIC DEVELOPMENT DIVISION,

GENERAL ACCOUNTING OFFICE

Mr. Chairman and Members of the Committee: Thank you for the opportunity to

discuss the current status and management of the Superfund program and the outlook for the program’s future. My comments today are based on a number of reports

we have issued in recent years that relate to three specific issues: (1) progress made

toward cleaning up sites in the program, (2) continuing management problems, and

(3) factors affecting Superfund’s future workload. In summary, our work has shown

the following:

• In the past, we have called attention to the slow pace of cleanups in the Superfund program. For example, we reported that cleanups completed in 1996 took

an average of over 10 years.1 However, now, 17 years after sites were first

placed on the Superfund list, many of the sites have progressed a considerable

distance through the cleanup process. Decisions about how to clean up the great

majority of these sites have been made, and the construction of cleanup remedies has been completed at over 40 percent of the sites. EPA’s goal is to complete the construction of remedies at 1,200 sites by 2005. Work to clean up

groundwater will continue at many sites after remedies are constructed.

• Despite the progress that Superfund has made toward site cleanups, certain management problems persist. These problems include the difficulty in controlling

contract costs, the failure to recover certain federal cleanup costs from the parties who are responsible for the contaminated sites, and the selection of sites

for cleanup without assurance that they are the most dangerous sites to human

health and the environment. These problems have caused us to include the program on our list of federal programs vulnerable to waste and abuse. Furthermore, our analysis indicates that the costs of on-site work by cleanup contractors represent less than half of the spending in the program.

• There is considerable uncertainty about the future workload of the Superfund program. Resolving this uncertainty depends largely on deciding how to divide responsibility for the cleanup of sites between EPA and the states. The number

of sites that have entered the Superfund program in recent years has decreased

as EPA has focused its resources on completing work at existing sites and the

states have developed their own programs for cleaning up sites. However, according to EPA and state officials who responded to our survey, a large number

of sites in EPA’s inventory of potential Superfund sites are contaminating

groundwater and drinking water sources and causing other problems and may

need cleanup. We have recommended that EPA work with the states to assign

responsibility for these sites among themselves. The Superfund reauthorization

process gives the Congress an opportunity to help guide EPA and the states in

allocating responsibility for addressing these sites.

BACKGROUND

In 1980, the Congress passed the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), creating the Superfund program to clean up

highly contaminated hazardous waste sites. CERCLA authorizes EPA to compel the

parties responsible for the contaminated sites to clean them up. The law also allows

EPA to pay for cleanups and seek reimbursement from the parties. EPA places sites

that it determines need long-term cleanup action on its National Priorities List

(NPL). As of early 1999, there were 1,264 sites on or proposed for the NPL. Another

182 sites had completed the cleanup process or were determined not to need cleanup

and had been deleted from the NPL. Once listed, the sites are further studied for

risks, and cleanup remedies are chosen, designed, and constructed. EPA relies extensively on contractors to study site conditions and conduct cleanups.

136

2 An Analysis of State Superfund Programs: 50-State Study, 1998 Update, Environmental Law

Institute. 3Six states did not report on their spending.

4Superfund: Information on the Status of Sites (GAO/RCED-98-241, Aug. 28, 1998).

Cleanup actions fall into two broad categories: removal actions and remedial actions. Removal actions are usually short-term actions designed to stabilize or clean

up hazardous sites that pose an immediate threat to human health or the environment. Remedial actions are usually longer term and more costly actions aimed at

permanent remedies.

According to a 1998 report by the Environmental Law Institute,2 all 50 states

have established their own cleanup programs for hazardous waste sites. In addition

to handling less dangerous sites, some of the state programs can handle highly contaminated sites, whose risks could qualify them for the Superfund program. Some

states initially patterned their cleanup programs after the Superfund program but

over the years, in an effort to clean up more sites faster and less expensively, have

developed their own approaches to cleaning up sites.

States accomplish cleanups under three types of programs: (1) voluntary cleanup

programs that allow parties, who are often interested in increasing sites’ economic

value, to clean them up without state enforcement actions; (2) brownfields programs

that encourage the voluntary cleanup of sites in urban industrial areas to enable

their reuse; and (3) enforcement programs that oversee the cleanup of the most serious sites and force uncooperative responsible parties to clean up their sites. States

generally use their voluntary and brownfields programs to clean up less complex

sites by offering various incentives to responsible parties, such as reduced state

oversight. States maintain that these programs accomplish site cleanups quickly

and efficiently.

Some states also maintain cleanup funds to pay all or a portion of the costs of

cleanups at sites for which responsible parties that are able to pay for full cleanups

cannot be found. The states vary greatly in the resources that they have devoted

to cleanups. For example, the 1998 Environmental Law Institute study determined

that states had cleanup funds totaling $1.4 billion as of the end of the states’ 1997

fiscal year, with 6 states having fund balances of $50 million or more and 26 states

having fund balances of less than $5 million. The study also reported that states

spent a total of $565 million on their cleanup programs in fiscal year 1997, 3 with

2 states spending $50 million or more and 27 states spending less than $5 million.

SUPERFUND HAS MADE PROGRESS CLEANING UP SITES

Even though cleanups have taken a long time to accomplish, if it maintains its

current pace, the Superfund program will complete the construction of cleanup remedies at the great majority of current NPL sites within the next several years. In

our March 1997 report, we said that cleanups completed in 1996 took an average

of 10.6 years. Much of the time taken to complete cleanups was spent during the

early planning phases of the cleanup process during which cleanup remedies are selected. We said that less time had been spent on actual construction work at sites

than on the selection of remedies.

Now, however, most NPL sites have been in the cleanup process for a long time

and have moved beyond the remedy selection phase. Last year, we reported that

EPA had completed the selection of remedies at about 70 percent of the NPL sites

as of the end of fiscal year 1997. 4 It had plans to complete, by the end of fiscal year

1999, remedies for about 67 percent of the federally owned or operated sites and

95 percent of the nonfederal sites that were listed as of the end of fiscal year 1997.

EPA reports that it has completed the construction of cleanup remedies at 585 sites

as of January 1999; will complete construction at 85 sites in each of fiscal years

1999 and 2000; and will finish a total of 1,200 sites by 2005. Groundwater cleanups

will continue at many of these sites after the completion of remedy construction.

These completion rates reflect EPA’s decision to make the completion of construction at existing sites the Superfund program’s top priority and to reduce new entries

into the program. About 89 percent of the NPL sites were placed on the list between

1982 and 1990. Figure 1 shows the number of sites listed on the NPL and the number of sites where the construction of the cleanup remedy was completed during the

years 1986 through 1998.

Figure 1: Numbers of Sites Listed on the NPL and for Which the Construction of

Final Cleanup Remedies Were Completed, 1986 Through 1998

137

5 High-Risk Series: Superfund Program Management (GAO/HR-93-10, Dec. 1992, GAO/HR-95-

12, Feb. 1995, GAO/HR-97-14, Feb. 1997, and GAO/OCG-99-17, Jan. 1999).

Source: Compiled by GAO from Environmental Protection Agency data.

Under the Superfund program, in addition to its remedial work, EPA has conducted removals at 595 NPL sites and 2,591 other contaminated sites. Cleanup

work has also been conducted at sites where construction of the final cleanup remedy has not yet been completed. At the request of this committee, we are conducting

a review to determine the extent of this ongoing cleanup activity.

UNCORRECTED PROBLEMS MAKE SUPERFUND A HIGH-RISK PROGRAM

For several years, GAO has included the Superfund program on its list of federal

programs that pose significant financial risk to the government and the potential

for waste and abuse. We included Superfund on the list because of (1) problems with

the management of cleanup contractors, (2) insufficient recovery of cleanup costs

from responsible parties, and (3) the absence of risk-based priorities for site cleanups. 5 EPA has corrected some of these problems, but enough remain that we have

not yet been able to remove Superfund from the high-risk list. I would like to review

these problems and EPA’s response.

Contract Management

First, we raised concerns about several contracting practices. We said that EPA

had a backlog of more than 500 audits of its Superfund contracts. The purpose of

these audits is to evaluate the adequacy of contractors’ policies, procedures, controls,

and performance. The audits are necessary for effective management and are a key

tool for deterring and detecting waste and abuse. The agency has now almost eliminated its backlog of contract audits.

We also found that EPA was approving contractors’ cleanup cost proposals without estimating what the work should cost. As a result, the agency could not negotiate the best contract price for the government. In response, EPA is now developing

its own cost estimates and using them to guide its price negotiations with contractors. However, EPA was still having problems developing accurate estimates in

about half the cases we recently reviewed. Furthermore, many of the cost estimators

in the EPA regions told us that they lacked the experience and historical data they

needed to do a better job at developing these estimates. EPA has requested the U.S.

Army Corps of Engineers, an agency with extensive contracting experience, to conduct an assessment of EPA’s cost-estimating practices and recommend potential improvements. The assessment is still ongoing and will be completed in mid 1999. Unless EPA ensures that its regions implement and sustain corrective measures resulting from this review, problems can reoccur. EPA has taken similar corrective actions

in the past, yet we continue to find problems with estimates.

Lastly, with respect to contracting, we reported that EPA had difficulty controlling the overhead, or program support costs, of its contractors. To ensure that it had

enough contractors to conduct cleanups, EPA hired a large number of contractors—

more, it turned out, than it actually needed. Even though it did not have enough

138

6 A site is eligible for the NPL if it scores sufficiently high on EPA’s Hazard Ranking System,

which evaluates a site’s potential risk to public health and the environment. 7Superfund: Trends in Spending for Site Cleanups (GAO/RCED-97-211, Sept. 4, 1997) and

Superfund: Analysis of Contractor Cleanup Spending (GAO/RCED-98-221, Aug. 4, 1998).

cleanup work to keep them all busy, it had to pay their overhead costs (i.e., the costs

of their maintaining the capacity to respond to work assignments—such as office

space). Although EPA cut in half the number of contractors that it keeps in place,

our recent work indicates that this reduction may not have been enough. We found

that, for the majority of contracts we reviewed, EPA continues to pay overhead costs

ranging from 16 percent to 76 percent of the overall contract’s costs, exceeding

EPA’s 11 percent target. In addition, persistent high overhead costs and uncertainty

about the future size of the program raise broader questions about the type and the

number of contracts EPA really needs to have in place.

Cost Recovery

Even though CERCLA makes parties who are responsible for contaminated sites

liable for cleanup costs, we have repeatedly reported that EPA has not charged responsible parties for certain costs of operating the cleanup program—mainly indirect

program costs, such as personnel and facilities. EPA has excluded about $3 billion—

about 20 percent of the $15 billion it has spent on Superfund through fiscal year

1997—in indirect costs from final settlements with responsible parties. In the early

years of the program, EPA took a conservative approach to allocating indirect costs

to private parties because it was uncertain which indirect costs the courts would

agree were recoverable if parties legally challenged EPA. The agency could lose the

opportunity to recover at least a half billion more if it does not soon reverse this

practice. Recently, Superfund program officials have developed a new way to determine recoverable indirect costs that could increase EPA’s cost recoveries, but the

Superfund program has not yet used this new method because it is waiting for approval from EPA and the Justice Department.

Priority Setting

The final Superfund issue that we discussed in our high-risk series is the absence

of a system for prioritizing sites for cleanup based on the risk they pose to human

health and the environment. EPA has partially corrected this problem. In 1995, it

created the National Prioritization Panel to help it set funding priorities for sites

at which remedies had been selected and that were ready for cleanup. The panel,

which is composed of regional and headquarters cleanup managers, ranks all of the

sites ready for cleanup construction nationwide on the basis of the health and environmental risks and other project considerations, such as cost-effectiveness. EPA

then approves funding for projects on the basis of these priority rankings.

EPA, however, does not use relative risk as a major criterion when deciding which

of the eligible sites to place on the NPL. 6 In our discussions with EPA managers

responsible for assessing sites for Superfund consideration, we found that the agency relies on the states to choose which of the eligible sites to refer to EPA for placement on the NPL. States refer sites after selecting those that they will address

through their own enforcement or voluntary cleanup programs. The EPA cleanup

managers with whom we talked expect that future sites placed on the NPL will not

necessarily be the most risky but, rather, those that the states find to be large, complex, and therefore costly, or those without responsible parties willing and able to

pay for the cleanup.

Because EPA does not usually track the status of cleanups that take place outside

of the Superfund program, EPA does not know if the worst sites in the nation are

being addressed first. Some EPA regions are encouraging their states to voluntarily

provide EPA with information on the cleanup status of the sites that the states are

addressing and that EPA considers as potentially posing significant risk.

In addition to our work on the high-risk aspects of the Superfund program, we

have conducted detailed analyses of spending in the program 7. In summary, we

have reported that the share of Superfund expenditures that go to cleanup contractors for the study, design, and implementation of cleanups increased from fiscal

years 1987 through 1996, but declined in fiscal year 1997. We also reported that

between fiscal years 1996 and 1997, EPA’s Superfund costs for administration and

support activities correspondingly increased (see fig. 2). As you know, we are currently conducting additional analysis of the Superfund program’s expenditures for

this Committee and others. We plan to report on the results of this work in May.

Figure 2: Superfund Spending for Contractor Cleanup Work and Other Program

Activities, Fiscal Years 1996-97, Dollars in Millions

139

8 Hazardous Waste: Unaddressed Risks at Many Potential Superfund Sites (GAO/RCED-99-8,

Nov. 30, 1998, and Hazardous Waste: Information on Potential Superfund Sites (GAO/RCED-99-

22, Nov. 30, 1998). 9We refer to these 1,789 hazardous waste sites as ‘‘potentially eligible sites.’’ We consider the

1,234 other sites as unlikely to become eligible for various reasons. For example, some sites were

erroneously classified as awaiting an NPL decision or do not meet EPA’s criteria for placement

on the list. Other sites do not require cleanup in the view of the responding officials, have already been cleaned up, or have final cleanup activities underway. Whether potentially eligible

sites are eventually listed depends on, among other things, a final evaluation by EPA and the

states’ concurrence.

Note: ‘‘Other costs’’ includes costs for enforcement activities, research and development/laboratories, and other directly related costs.

Source: Superfund: Analysis of Contractor Cleanup Spending (GAO/RCED-98-221, Aug. 4,

1998).

THE FUTURE DIRECTION OF SUPERFUND IS UNCERTAIN

EPA’s inventory of potential NPL sites contains sites that have been awaiting a

decision for several years or more on whether they should be listed on the NPL.

EPA and state officials believe that many of these sites need cleanup work, but the

respective cleanup responsibilities of EPA and the states have not been established.

As of the end of fiscal year 1997, EPA’s Superfund database indicated that the

risks of over 3,000 sites had been judged on the basis of preliminary evaluations

to be serious enough to make the sites potentially eligible for the NPL. EPA classified these sites as ‘‘awaiting an NPL decision.’’ Information about the nature and

the extent of the threat that these sites pose to human health and the environment,

the extent of states’ or EPA’s cleanup actions at the sites, and the states’ or EPA’s

cleanup plans for the sites is important to determining the future size of the Superfund program.

We surveyed EPA regions, other federal agencies, and the states to (1) determine

how many of the over 3,000 sites remain potentially eligible for the NPL; (2) identify

the characteristics of these sites, including their health and environmental risks; (3)

determine the status of any actions to clean up these sites; and (4) collect the opinions of EPA and other federal and state officials on the likely final disposition of

these sites, including the number of sites that are expected to be placed on the NPL.

We reported the results of our surveys in two November 1998 reports. 8

On the basis of our surveys, we determined that 1,789 of the 3,036 sites that

EPA’s database classified as ‘‘awaiting an NPL decision’’ in October 1997 are still

potentially eligible for placement on the list. 9 EPA, other federal agency, and state

officials responding to our survey said that many of these sites presented risks to

human health and the environment. According to these officials, about 73 percent

of the sites have caused contamination in groundwater and another 22 percent could

contaminate groundwater in the future; about 32 percent of the sites caused contamination in drinking water sources and another 56 percent could contaminate

drinking water sources in the future; 96 percent of the potentially eligible sites are

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10Of the 1,103 sites for which no cleanup actions were reported, both EPA and the states said

that they had taken no cleanup actions beyond initial site assessments at 719 of them. For 336

sites, EPA officials alone said that their agency had taken no cleanup actions, but the states

provided no information. California, Massachusetts, and New Jersey accounted for about 85 percent of these sites. Similarly, for six sites, the states said that they had taken no action, but

EPA provided no information. Neither EPA nor the states provided information on any cleanup

actions that may have occurred at the remaining 42 of the 1,103 sites. 11 However, EPA and the states agreed on the listing prospects of only 26 specific sites.

ployment; and workers, visitors, or trespassers may have direct contact with contaminants at about 55 percent of the sites. We asked officials of EPA, other federal agencies, and states to rank the risks of

the potentially eligible sites. These officials collectively said that about 17 percent

of the potentially eligible sites currently pose high risks to human health and the

environment, and another 10 percent of the sites (for a total of 27 percent) reportedly may also pose high risks in the future if they are not cleaned up (see fig. 3).

For about one-third of the sites, the officials said that it was too soon or they needed

more information to determine the seriousness of the sites’ risks, or they provided

no risk characterization.

Figure 3: Number of Potentially Eligible Sites With High, Average, and Low

Potential Risks

Source: Hazardous Waste: Unaddressed Risks at Many Potential Superfund Sites (GAO/

RCED-99-8, Nov. 30, 1998).

Officials responding to our surveys said that some cleanup activities (which they

stated were not final cleanup actions) have taken place at 686 of the potentially eligible sites. These actions were taken at more than half of the sites that were reported to currently or potentially pose high risks, compared to about a third of the

sites that have been reported to currently or potentially pose average or low risks.

No cleanup activities beyond initial site assessments or investigations have been

conducted or no information is available on any such actions at the other 1,103 potentially eligible sites.10 Many of the potentially eligible sites have been in state and

EPA inventories of hazardous sites for extended periods. Seventy-three percent have

been in EPA’s inventory for more than a decade. No cleanup progress was reported

at the majority of the sites that have been known for 10 years or more. It is uncertain whether most potentially eligible sites will be cleaned up; when

cleanup actions, if any, are likely to begin; who will do the cleanup; under what programs these activities will occur; and what the extent of responsible parties’ participation will be. We did not receive enough information from our survey to determine

what cleanup actions will be taken at more than half of the 1,789 potentially eligible

sites and whether EPA or the states will take these actions (see fig. 4). We are making no forecast of the number from the group of 1,789 potentially eligible sites that

will be added to the NPL in the future. However, EPA and state officials collectively

believed that 232 (13 percent) of the potentially eligible sites might be placed on

the NPL in the future.11 Officials estimated that almost one third of the potentially

eligible sites are likely to be cleaned up under state programs but usually could not

give a date for the start of cleanup activities. State officials stated that, for about

two-thirds of the sites likely to be cleaned up under state programs, the extent of

responsible parties’ participation is uncertain. This is important because officials of

about half of the states told us that their state’s financial capability to clean up potentially eligible sites, if necessary, is poor or very poor. In addition, officials of

141

about 20 percent of the states said that their enforcement capacity (including resources and legal authority) to compel responsible parties to clean up potentially eligible sites is fair to very poor.

Figure 4: Estimates of the Likely Final Cleanup Outcome for 1,789 Potentially

Eligible Sites

Note: ‘‘Other sites’’ includes sites likely to be cleaned up under other EPA programs (43), sites

that either EPA or state programs may clean up (13), and sites that are reportedly unlikely to

be cleaned up (19).

Source: Hazardous Waste: Unaddressed Risks at Many Potential Superfund Sites (GAO/RCED99-8, Nov. 30, 1998).

Our November report recommends that EPA review its inventory of potential NPL

sites to determine which of them need immediate action and which will require long

term cleanup action and, in consultation with the states, develop a timetable for

taking these actions.

In conclusion, Mr. Chairman, despite the long durations of cleanups in the past,

Superfund is within sight of completing the construction of cleanup remedies at

most of the sites on the NPL. While recognizing this accomplishment, we believe

that management problems and cost control issues we have reported on for several

years remain to be solved. Because few sites have been admitted to the program

in recent years, the NPL pipeline is clearing out. On the other hand, there are many

sites in EPA’s inventory of potential NPL sites that still need attention and possible

cleanup, but EPA and the states have postponed decisions, sometimes for up to 10

years or longer, on how to address them.

Over the last two decades, the states have built up the capacity to deal with site

cleanups to varying degrees. Some have substantial programs, but others have limited resources and report that their ability to pay for cleanups is poor. Furthermore,

not all of the states have adequate enforcement authority to force responsible parties to pay for cleanups. Because states generally now have the lead for screening

sites for NPL consideration, future NPL sites may disproportionately represent complex cleanups for which responsible parties cannot be found or are unwilling to ante

up the full cost of the cleanup. We have recommended that EPA work with the

states to assign responsibility among themselves for these sites. The Superfund reauthorization process gives the Congress an opportunity to help guide EPA and the

states in allocating responsibility for addressing these sites.

Mr. Chairman, this concludes my prepared statement. I will be happy to respond

to your questions or the questions of committee members.

Mr. OXLEY. Thank you, Mr. Guerrero.

Now, the Chair would note that there are four votes on the floor.

We have about 10 minutes, or less than 10 minutes, to go and,

then, we have a 5-minute vote. So, we will be gone a good half an

hour.

Ms. Kerbawy, could we get your testimony, say, within the next

5 minutes, or would you prefer that we come back and begin your

testimony then?

Ms. KERBAWY. It really doesn’t matter to me. It might take 7

minutes.

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Mr. OXLEY. Okay, then, why don’t we recess, if that is okay with

you. And, then we will return as soon as the votes are over, which

I would think would probably take a total of about a half an hour.

[Brief recess.]

Mr. OXLEY. The committee will reconvene.

When we last met several days ago Ms. Kerbawy was just going

to give us her testimony. So, with that, let me recognize Ms.

Kerbawy, representing ASTSWMO.

STATEMENT OF CLAUDIA KERBAWY

Ms. KERBAWY. Thank you very much. Hopefully, you folks had a

good vote.

Good afternoon, and it’s getting close to evening. I am Claudia

Kerbawy, Chief of the Michigan Superfund Program. I have been

around this program for quite a while—not quite as long as it has

been in existence, but just about. I had a little bit of a hiatus for

a while working strictly on brownfields, but now I am back.

I am also the primary spokesperson on re-authorization issues

for the Association of State and Territorial Solid Waste Management Officials, and I am here today representing ASTSWMO.

As the day-to-day implementers of the State and Federal cleanup

programs, the members of ASTSWMO believe we can offer a

unique perspective to this dialog, and thank you for recognizing the

importance of the State perspective. We commend you for taking

this opportunity to review the status of State and Federal cleanup

programs prior to the development of legislation. I think that will

be quite valuable.

The Superfund statute has facilitated cleanup of some of our Nation’s most severely contaminated sites. Perhaps even more importantly, it has fostered the development of State cleanup programs,

so that today over 40 States have enacted State Superfund statutes, as well as State voluntary cleanup programs and the

brownfields programs.

As with the Federal Superfund Program, most State programs

have had the benefit of 18 years to grow and mature in infrastructure capacity and cleanup sophistication. We believe it is very important that Congress understand the status of State programs, in

order to make a fully informed decision regarding the future of the

Federal Superfund Program.

ASTSWMO recently conducted a study of the accomplishments of

the States’ cleanup programs. The association asked States to provide detailed information on all removal and remedial actions conducted between January 1, 1993 and September 30, 1977, for each

site in the State system, where hazardous waste cleanup efforts

were performed by States directly, were performed under State enforcement authority, and were done under voluntary cleanup and

property transfer or brownfields programs. It should be noted that

sites listed on the NPL, RICO corrective actions, and underground

and above-ground storage tank, and other petroleum spills were

not included in this study.

The association received information on over 27,000 sites from 33

responding States. I should note that the primary ground rule for

the study was that information had to be reported site-specifically

and had to be accompanied by background data. Estimates and

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program summaries were not counted as part of either the individual State or national totals.

As a result, while this study does not capture the complete site

universe, either on a national or individual State level, it is the

view of ASTSWMO that enough information was obtained to confirm that a trend has developed demonstrating State programs

have substantially matured and are addressing a significantly increased number of sites.

Some of the key results of the ASTSWMO study include: The

States are now completing an average of 1,475 sites a year as compared to 200 completions per year previously, for a total of 6,768

completions. The sevenfold increase in completions can be attributed to the growth in the State programs, the advent of the State

voluntary cleanup programs, and the development of State cleanup

standards.

On a national basis, States completed approximately 485 removals per year, as compared to 293 per year during the first 12 years

of the program. This indicates a substantial increase in risk reduction in the field.

Today States are addressing an average of approximately 4,700

sites at any given time, as compared to 1,850 during the first 12

years of the program. This, clearly, shows that State programs

have increased in their capacity to identify and address more sites.

Only 8.9 percent of the total sites identified by States were classified as ‘‘inactive.’’ As the data indicate, State capacity to address

large numbers of sites has increased dramatically. Most sites are

being actively worked on by States, either through traditional

Superfund programs or through voluntary cleanup programs. The

majority of sites classified as ‘‘inactive’’ are probably of lower relative risk and not destined for the NPL anyway.

Obviously, the problem of hazardous waste remediation in this

country was much larger than anyone anticipated when CERCLA

was enacted. And, the role the States would play in this process

was vastly underestimated. Today, there are approximately 1,300

sites listed on the National Priorities List. And, after 18 years, approximately 90 percent of all the sites on the NPL now have

records of decision signed.

State programs, in just the last 4 years, have completed 6,768

sites and are working on an additional 20,467 sites. The purpose

in stating these numbers is not to compare or compete with the

Federal Government, but to illustrate that the Federal Government

will only be addressing a finite number of sites, and that the remaining universe of sites is left for the States to address.

The question before this committee is, what should the appropriate role of the Federal Superfund Program be in the future?

There are over 40 States with cleanup programs; however, there

will always be States who choose to not develop a program, and

Federal assistance may be warranted there. There will also be sites

which, due to either technical or legal complexities, or cost a State

either can not address or may prefer to have the Federal Government address—the point I wish to stress is, with the current status

of State programs, the choice as to whether a site is addressed

under the Federal Government or the State government should be

determined by the State. The Governor should be able to request

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Federal assistance or veto a site from being listed on the National

Priority List. And, legislation is needed to accomplish this.

As indicated by both the ASTSWMO and GAO surveys, EPA is

no longer at the center of the site-remediation universe. The States

have, clearly, become the primary regulators for overseeing site remediation. The NPL should be reserved for those sites where both

the State and Federal Government believe the expenditure of Federal resources is warranted. The NPL is no longer reserved for the

worst of the worst sites. Rather, the NPL has shifted to a venue

for remediating serious sites which require Federal resources.

Right now, the Federal Superfund statute technically applies to

any site where a release occurs. However, the reality is that the

States are really responsible for remediation of all sites which are

not on the NPL. The EPA removal program is able to address some

of those sites, but the program is designed to stabilize sites not ensure complete remediation. The majority of these sites will never

be on the NPL, and, therefore, EPA does not even have the regulatory authority to compel responsible-party action or spend money

at these sites to perform the necessary remedial actions. Consequently, the State is often still responsible for completing the remediation of a site, even after an EPA removal action has been performed.

Although the majority of these sites will never be placed on the

NPL, they are still subject to CERCLA liability, even if a site has

been cleaned up to State standards. The potential for overfile by

EPA, and for third-party lawsuits under CERCLA, clearly inhibits

redevelopment of brownfields sites.

We believe it is imperative that Congress seek to clarify the

State and Federal roles and potential liability consequences under

the Federal Superfund Program. States should be able to release

sites from liability once a site has been cleaned up to State standards, and emergency action should be the only exceptions to such

releases from Federal liability.

We believe the universe of sites to be addressed by State cleanup

programs and the sites eligible for releases from Federal liability

is the non-NPL universe of sites. Some people will suggest that the

non-NPL universe can be divided into two categories: NPL-caliber

and low-risk sites. As the primary regulators for non-NPL sites, we

are here to tell you that there is no clear line that differentiates

these sites. If a site is not on or proposed for listing on the NPL,

the State should be free to address the site without EPA interference.

We believe legislation is needed in this area, and hope that Congress chooses to recognize the benefits of State programs, which

have had over 18 years to grow and mature, and which, clearly,

have become the leaders in site-remediation today.

We look forward to working with this subcommittee as this issue

is debated.

[The prepared statement of Claudia Kerbawy follows:]

PREPARED STATEMENT OF CLAUDIA KERBAWY, ASSOCIATION OF STATE AND

TERRITORIAL SOLID WASTE MANAGEMENT OFFICIALS

Good morning. I am Claudia Kerbawy and I am the Chief of the Michigan Superfund program. I am also the primary spokesperson on reauthorization issues for the

Association of State and Territorial Solid Waste Management Officials (ASTSWMO)

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and am here today representing ASTSWMO. ASTSWMO is a non-profit association

which represents the collective interests of waste program directors of the nation’s

States and Territories. Besides the State cleanup and remedial program managers,

ASTSWMO’s membership also includes the State regulatory program managers for

solid waste, hazardous waste, underground storage tanks, and waste minimization

and recycling programs. Our membership is drawn exclusively from State employees

who deal daily with the many management and resource implications of the State

waste management programs they direct. As the day-to-day implementors of the

State and Federal cleanup programs, we believe we can offer a unique perspective

to this dialogue and thank you for recognizing the importance of the State perspective.

The Superfund statute has served an important purpose. First, it has facilitated

the cleanup of some of our nation’s most severely contaminated sites; and second,

and perhaps most importantly, it has fostered the development of State Superfund

programs and State Voluntary Cleanup programs. Today, over 40 States have enacted State Superfund statutes as well as State Voluntary Cleanup/Brownfield programs. I would like to dedicate the first part of my testimony to speaking on the

accomplishments of State programs. As with the federal Superfund program, most

State programs have had the benefit of 18 years to grow and mature in infrastructure capacity and cleanup sophistication. We believe it is very important that Congress understand the status of State programs, in order to make a fully informed

decision regarding the future of the federal Superfund program. The second part of

my testimony will be devoted to analyzing the current federal program and providing recommendations for the future program.

ASTSWMO State Accomplishments study:

The Association of State and Territorial Solid Waste Management Officials recently conducted a study on the accomplishments of State cleanup programs. The

association asked States to provide detailed information on all short-term removal

actions and long-term remedial actions conducted between January 1, 1993 and September 30, 1997 for each site in the State system where hazardous waste cleanup

efforts were performed by States directly, under State enforcement authority, and

under State voluntary cleanup and property transfer/brownfield programs. Sites listed on the National Priorities List, Resource Conservation Recovery Act corrective actions and underground and above ground storage tank and other petroleum spills

were not included in this study. The association received information on 27,235 sites

from thirty-three responding States. I should note that the primary ground rule for

the study was that information had to be reported site-specifically and had to be

accompanied by background data. Estimates were not accepted or counted as part

of either the individual State or national totals for work accomplished.

While this study does not capture the complete site universe either on a national

level or individual State level, it is the view of ASTSWMO that enough information

was obtained to confirm that a trend has developed whereby on a national level

States are not only addressing more sites at any given time, but are also completing

(construction completes) more sites through streamlined State programs. State programs have matured and increased in their infrastructure capacity.

Key results of the ASTSWMO study included:

• States have completed seven times as many sites per year these last four and

three-quarter years than they did during the first twelve years of the program.

During the first twelve years of the program, States completed 202 sites per

year on average. Over the last four and three-quarter years, States have averaged 1, 475 completions per year for a total of 6,768 completions. State managers believe the large increase in completions can be attributed to the growth

of State programs, the advent of State Voluntary Cleanup programs and the development of State cleanup standards (i.e., clearly defined endpoints).

• States have completed almost twice as many removals per year during the last

four and three-quarter years of the program than they did during the previous

twelve years of the program. On a national basis, States completed approximately 485 removals per year as compared to 293 per year during the first

twelve years of the program. This doubling of the pace of removals indicates a

substantial increase in risk reduction in the field.

• Three times as many confirmed contaminated sites have been identified and are

working their way through the State system than during the first twelve years

of the program. During the first twelve years of the program, States had approximately 1,850 sites working their way through their systems at any given

time. Today, States are addressing an average of approximately 4,700 sites at

any given time. NOTE: the word ‘‘address’’ could refer to site remediation, no

further action designations, or site prioritizations. These findings clearly show

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that States programs have matured and State infrastructures have increased in

their capacity to identify and address more sites. • Only 8.9% (2,426) of the total sites identified by States (27,235) were classified

as inactive. As the data indicate, State capacity to address large numbers of

sites has increased dramatically. Most sites are being actively worked on by

States either through traditional State superfund programs or through voluntary cleanup programs and it is the professional judgement of the ASTSWMO

membership that the majority of sites classified as inactive are probably of

lower relative risk and not destined for the NPL due to the triage system employed by most States.

Analysis of the Current Federal Superfund Program and Recommendations for the

Future:

It is our understanding that when Congress enacted the Comprehensive Environmental Response Compensation and Liability Act (CERCLA) in 1980, commonly

known as Superfund, it was envisioned that there were approximately 400 serious

abandoned hazardous waste sites requiring remediation across the country and that

the Superfund program would have a life-span of perhaps five years. Congress did

not provide for a meaningful role for State programs until 1986 with the Superfund

Amendments and Reauthorization Act (SARA).

Obviously the problem of hazardous waste remediation in this country was much

larger than anyone anticipated and the role the States would play in this process

had been vastly underestimated. Today, there are approximately 1300 sites listed

on the National Priorities List. After 18 years, the Environmental Protection Agency

can legitimately claim that approximately 90% of all sites listed on the National Priorities List have signed records of decision. State programs in just the last four

years have completed 6,768 sites and are working on an additional 20,467 sites. The

purpose in stating these numbers is not to compare or compete with the federal government, but to illustrate that Congress was correct in envisioning that the federal

government would address only a finite number of sites.

As the recent ASTSWMO survey illustrates, State programs have developed and

matured in terms of sophistication and infrastructure capacity. Only 8.9% (2,426)

of the total sites (27,235) identified by the ASTSWMO survey are classified as inactive. States today employ a triage system whereby, the worst sites are addressed

first. It is, therefore, the strong belief of the ASTSWMO membership that most sites

that have been identified within a State that could qualify for listing on the NPL

are already being worked on by the State.

We believe the views of our membership were validated by the recent General Accounting Office (GAO) Report entitled, ‘‘Hazardous Waste: Unaddressed Risks at

Many Potential Superfund Sites’’. In this report the GAO reviewed the status of

3,036 sites which had pre-scored above 28.5 but for a variety of reasons had not

been placed on the NPL. Out of a total of 3,036 sites only 7.6% (232) were estimated

by both EPA and State officials to potentially warrant listing on the NPL. This confirms that the EPA regional staff had utilized good judgement in not placing the

vast majority of these sites on the NPL; it also confirms that the hazard ranking

system could be improved.

The question before this Committee is what should be the appropriate role of the

federal Superfund program in the future? While there may be forty plus States with

State Superfund programs and Voluntary Cleanup programs there will always be

States who choose not to develop a program and federal government assistance may

be warranted. There will also be sites which due to either technical or legal complexity or cost, a State either cannot or may prefer to have the federal government

address. The point I wish to stress is that with the current status of State programs

the choice as to whether a site is addressed by the federal government or State government should be determined by the State. A Governor should be able to veto a

site from being listed on the National Priorities List. While it is EPA policy to routinely seek concurrence from the Governor before a site is listed on the NPL, it is

not mandatory that the concurrence be received. If a dispute should arise between

EPA and a Governor the process within EPA is to have the Assistant Administrator

for OSWER make the final determination. Frankly, that is not a satisfactory policy.

Fortunately, there are very few sites where the States and EPA disagree, however, when a dispute does occur the site quickly becomes high profile and both the

State and federal government can lose credibility. As indicated by the ASTSWMO

survey and GAO survey, the States have clearly become the primary regulators for

overseeing site remediation. The NPL should be reserved for those sites which both

the State and federal governments believe warrant expenditure of federal resources.

If a site has a viable responsible party and a State agency willing to assume responsibility, the State should have the opportunity to remediate the site without federal

147

intervention. The NPL is no longer reserved for the ‘‘worst of the worst’’ sites, rather

the NPL has shifted to a venue for remediating sites which require federal resources. The criteria for listing sites on the NPL may quickly shift from one of risk

based determinations to one based on resource needs. Legislative change is needed.

Congress also must consider whether they wish to see the role of the federal

Superfund program expanded in the future. The federal Superfund statute technically applies to any site where a release occurs. However, the reality today is that

States are responsible for ensuring the remediation of all sites which do not score

above 28.5 using EPA’s Hazard Ranking System (HRS)—the cutoff for federal listing

on the NPL. The EPA removal program is able to address some sites which are not

listed on the NPL, but the program is designed to stabilize a site, not to ensure the

full remediation of the site. EPA can not expend fund money for remediating a site

not listed on the NPL. Consequently, the State is often still responsible for completing the remediation of a site even after an EPA removal action has been performed at a site.

It is our belief that Congress needs to decide definitively whether EPA should retain a role in the remediation of non-NPL sites. While in practicality EPA has no

to little role at these sites and as our survey indicated, the States are addressing

the large universe of non-NPL sites, the statute still maintains a role for EPA in

theory. Although the majority of these sites (typically brownfield sites) will never be

placed on the NPL, they are still subject to CERCLA liability even after the site

has been cleaned up to State standards. It is our belief that we can no longer afford

to foster the illusion that State authorized cleanups may somehow not be adequate

to satisfy federal requirements. The potential for EPA overfile and for third party

lawsuits under CERCLA is beginning to cause many owners of potential

Brownfields sites to simply ‘‘mothball’’ the properties. We believe it is imperative

that Congress seek to clarify the State-Federal roles and potential liability consequences under the Federal Superfund program. States should be able to release

sites from liability once a site has been cleaned up to State standards. In situations

which are deemed emergencies and where the State requests assistance, we believe

the federal government should be able to address the site and if necessary hold the

responsible party liable consistent with liability assigned under State cleanup law.

Emergency actions should be the only exceptions to such releases from federal liability.

This has been a very contentious issue and we understand that many in the Administration have raised objections to provisions of this nature. We do not understand the basis for these objections for several reasons. First, EPA does not have

the ability to compel parties to take remedial actions at sites not listed on the NPL,

except for removal actions. Second, the majority of these sites will never be listed

on the NPL, therefore, EPA does not have regulatory authority to spend fund money

at these sites to perform the necessary remedial actions. Third, if a State should

release a site from State liability (of course, all States have standard reopener provisions contained in their liability releases), and a situation should develop which

warrants federal attention, the State will act responsibly and contact EPA. For example, the Hoboken site in New Jersey was remediated under the State Voluntary

Cleanup program and a certificate of completion was issued by the State. Previously

unknown mercury was later found to be present at the site and the State for financial and technical reasons called EPA in to address the site. The State of New Jersey has remediated over 6,000 sites through its Voluntary Cleanup program and receives 150 applications a month. We recognize that situations such as the Hoboken

site will occur and believe that the recommendation we have offered adequately addresses the situation. While it is clear in emergency situations that EPA should

have the ability to enter a site, we believe the second prong of the condition must

also be met, i.e., with State concurrence similar to our recommendation for listing

sites on the NPL. We wish to avoid duplication as much as possible and therefore

believe that if a State is capable of addressing the emergency than there is no need

to utilize EPA’s resources. The States have proven they act responsibly in these situations and it is to the State’s advantage to notify EPA when either the State’s financial or technical resources are not sufficient to adequately address the problem.

We believe the universe of sites to be addressed by State Cleanup (State Superfund and State Voluntary Cleanup) programs and the sites eligible for releases from

federal liability is the non-NPL universe of sites. It seems only practical to officially

exclude proposed and listed NPL sites simply for the fact that much work has already ensued in order to place these sites on the NPL. Some suggest that the nonNPL universe can be divided into two categories, NPL-caliber and low risk sites. We

are the primary regulators for non-NPL sites and we are here to tell you that there

is no clear line that differentiates these sites. Many would suggest the bright line

should be 28.5 (as determined by the HRS), but there are two problems with using

148

this arbitrary cutoff. First, 28.5 is the quantitative scoring factor used to determine

if a site qualifies for placement on the NPL. However, this figure is based on an

archaic hazard ranking system which many EPA and State managers admit is

flawed, so much so, that EPA and State managers in the GAO study identified only

7.9% of the 3036 pre-scored universe of sites for potential listing on the NPL. Second, in order to use the quantitative NPL-caliber designation, States would have to

score sites prior to admitting them to a voluntary cleanup program (a suggestion

we understand one EPA Region has made to a State). Clearly, the pre-scoring of

a site as a condition for entering a State Voluntary Cleanup program would be a

huge disincentive for marketing a State Voluntary Cleanup program and would not

serve to move this large universe of sites to cleanup nor to facilitate economic redevelopment of brownfields. Essentially, the program has operated for years on a ‘‘you

know it when you see it basis’’ in identifying NPL-caliber sites. This is bad public

policy and should not be acceptable for differentiating State and EPA roles and for

providing certainty to the process. If a site is not to be listed on the NPL, than the

State should be free to address the site without EPA interference and the site

should be eligible for the same benefits as any other site, such as liability releases.

We believe legislation is needed in this area and hope that Congress chooses to recognize the benefits of State programs which have had over 18 years to grow and

mature and which clearly have become the leaders in site remediation today.

Conclusion:

As we understood the subject of today’s hearing to be the status of the current

federal Superfund program, I have not outlined ASTSWMO’s recommendations for

changes to the federal remedy selection process or addressed the issue of the State

role regarding federal NPL sites (ASTSWMO’s positions on these issues are attached for the record). Rather, I have focused on both the current and potential

scope of the federal Superfund program in the future. With 90% of all NPL sites

having signed records of decision, we felt a discussion on remedy selection changes

would not be appropriate. EPA has done a good job in diligently working to remediate the 1300 or so sites listed on the NPL. They should be commended for their

efforts. EPA, however, is no longer the center of the site remediation universe. The

vast majority of sites are and will continue to be remediated under State auspices.

The question for Congress should be whether to change the law to reflect today’s

reality. We look forward to working with the Subcommittee as this issue is debated.

Mr. OXLEY. Thank you very much, Ms. Kerbawy.

Let me begin by asking, Mr. Guerrero—EPA has stated that the

pace of cleanups has increased because the number of constructioncompletes have increased over the past few years. You testified

that, when you evaluated the pace of cleanup, you estimated it

takes an average of 10.6 years to clean up an NPL site. In your

view, do the increases in completed constructions necessarily provide evidence of an accelerated pace of cleanup? Can you comment

on the difference between your estimates and that of EPA?

Mr. GUERRERO. Sure. No, we have not seen convincing evidence

that the pace of cleanups has necessarily improved. We believe that

the increased numbers of cleanups that are being done is a reflection of the aging of the cases that have been in the system for

many, many years. And, if you remember, I referred to a figure 1

in my statement, which showed that EPA had not listed many sites

in this decade. Most of the sites, close to 90 percent of sites, were

listed prior to this decade. And, so, eventually, you would expect

that those sites would get cleaned up, and they are getting cleaned

up now.

Mr. OXLEY. EPA has made a number of changes to how it administers the Superfund Program over the past few years. It calls

these administrative reforms. We heard the agency discuss these in

some detail earlier with Mr. Fields. GAO studies the effectiveness

of these reforms. What are your primary findings?

Mr. GUERRERO. At the time we looked at it—and this is work

that is now 2 years old, so it is something we would want to look

149

at currently to get a better read on—but at the time we looked at

it, EPA was unable to document the improvements that they were

claiming they had made as part of that administrative reform.

Mr. OXLEY. Isn’t it true that GAO found quantifiable results for

only about 6 out of 45 administrative reforms?

Mr. GUERRERO. That is correct.

Mr. OXLEY. GAO indicated, in their earlier report, that EPA was

unable to document the effectiveness of many of these reforms, noting that the agency indicated that results of many of these reforms

were not quantifiable. Has that changed? Does GAO have any additional information about the effectiveness of EPA’s administrative

reforms?

Mr. GUERRERO. No, not since that time. And, again, as I said, we

think this is an issue that should be looked at and we would be

happy to do that for the committee.

Mr. OXLEY. Thank you.

Ms. Kerbawy, we heard testimony from GAO that the capacity

of State programs to take on greater responsibility may vary by

State, due to issues associated with State funding and enforcement

authority. Can you offer your opinion about the extent to which

State programs may be able to take on greater responsibility for

cleanups in the future?

Ms. KERBAWY. Sure. I think we have seen a definite trend over

the years that the State capacity for dealing with these sites has

increased substantially. We agree with GAO’s percentages; 80 percent of the States have the program capability with their Superfund laws to deal with the enforcement issues and the funding

issues. I think that, certainly, the States are showing that they are

handling the vast majority of the sites out there as it is, and those

include sites that have the same level of risk and complexity as

some of the sites on the NPL. There will always be a few States

that will not be able to take on the program; that chose either not

to develop a program or ask for EPA assistance. That, currently,

is the case, I would expect that would be the case in the future.

So, there probably is a role for some States where EPA would need

to play a part.

Mr. OXLEY. Your testimony on behalf of the State cleanup official

states that, quote, ‘‘The potential for EPA overfile for third-party

lawsuits under CERCLA is beginning to cause many owners of potential brownfields sites to simply ‘moth ball’ the properties.’’

You further state that ‘‘The States should be able to release sites

from liability once a site has been cleaned up to State standards.’’

We heard this issue discussed earlier by Mr. Fields, and you

were present, I think, to hear his response. Can you explain the

State’s view on this point?

Ms. KERBAWY. Yes. I think that it’s really important to note that,

although there are 11 States that have memorandums of agreement with EPA, which helps to give some assurance that EPA will

not overfile where they are taking action, that is only 11, and very

few States are interested in pursuing a memorandum of agreement

at this time under the current policies that EPA has. What we see

now is that EPA is asking for specific changes in their programs

that would be necessary or scoring of sites before putting them into

a voluntary cleanup program—all of which significantly comVerDate 27-JAN-2000 09:15 Feb 03, 2000 Jkt 010199 PO 00000 Frm 00152 Fmt 6633 Sfmt 6602 E:\HEARINGS\55642 txed02 PsN: txed02
150

plicates and changes the priorities for the States in dealing with

the sites within their State. Quite frankly, I think that it is very

important to look at the overall issue that MOA’s don’t bar—they

are not enforceable. So, the potential for a problem still exists out

there.

If Michigan did not have an MOA with EPA right now, I don’t

think we would be trying to get one because of what would be required to be put in there. I think that it is also important to note

that the third-party complications, third-party contribution actions,

are not affected whatsoever by an MOA. That agreement is between the State and EPA. And, one of the major issues at the

brownfields sites is, not only that EPA might come in, but that

there would be third-party contribution actions that could be taken

against new owners of the site that, you know, are essentially innocent parties.

Mr. OXLEY. Thank you. The Chair’s time has expired. Let me

turn to the gentleman from New York, the ranking member, Mr.

Towns.

Mr. TOWNS. Thank you very much, Mr. Chairman.

Mr. Guerrero, I would like to focus on the 232 sites that your testimony indicates might be placed on the NPL list. For the 39 sites,

in the group of 232 where EPA said the NPL listing was likely, but

the State says cleanup or no cleanup, would you agree that there

is more uncertainty in these sites being listed on the NPL than the

26 where both agencies agree?

Mr. GUERRERO. Yes, there is.

Mr. TOWNS. I understand that you encounter approximately 100

sites from the State of Massachusetts in your graph of sites, but

which final outcome is uncertain because the State failed to participate in your survey. Am I correct that Massachusetts did send you

written documentation indicating that virtually all of the Massachusetts sites will be handled by the State program?

Mr. DONAGHY. I can respond to that. Actually, Massachusetts refused to participate in the survey that we sent out to the States

to find out how they were dealing with the sites that could make

it into the Superfund Program. They said that they had recently

completed a survey for ASTSWMO, and they referred us to the

ASTSWMO questionnaire for information. But, we weren’t able to

use the responses that were given to ASTSWMO because it was an

entirely different questionnaire. It was a one-page questionnaire, a

very short sort of survey; whereas, our own was much more complex and the categories that we used weren’t always consistent

with the ASTSWMO survey. So, we weren’t able to integrate the

Massachusetts figures into our overall data on the States.

Mr. TOWNS. And they used the excuse of the fact that it would

take them too long to prepare and——

Mr. DONAGHY. Yes, they said they didn’t have the resources to

complete the survey.

Mr. TOWNS. And they also stated their sites were not to be listed

on the NPL?

Mr. DONAGHY. I am not sure that they told us that. They referred us to the ASTSWMO survey. In response to the ASTSWMO

survey, they probably forecast few sites would make it on to the

NPL; that is right.

151

Mr. TOWNS. Mr. Chairman, I have a document here I would like

to place in the record, a letter, also, from the Commonwealth of

Massachusetts and also the Massachusetts questionnaire they submitted by GAO. I would also like to submit all of that, for the

record.

Mr. OXLEY. Without objection.

[The information referred to follows:]

COMMONWEALTH OF MASSACHUSETTS

EXECUTIVE OFFICE OF ENVIRONMENTAL AFFAIRS

DEPARTMENT OF ENVIRONMENTAL PROTECTION

December 24, 1997

PETER F. GUERRERO

Director, Environmental Protection Issues

Resources, Community, and Economic Development Division

United States General Accounting Office

Washington, D.C. 20548

DEAR MR. GUERRERO: Through the office of Secretary Trudy Coxe, the Department of Environmental Protection has received your request to complete a survey

for the General Accounting Office. The survey requests information on hazardous

waste sites in Massachusetts which have scored 28.5 or greater under EPA’s Hazard

Ranking System but have not yet been nominated to the National Priorities List.

Such sites are commonly referred to as PUPS. The list accompanying your letter

contains 195 of these sites for which you request a completed survey.

Your letter suggests that each site specific survey should take a staff person approximately 10 minutes to complete. Our experience has been that compiling the information and completing a survey of this detail will take significantly more time,

up to several hours each for many of the sites. We therefore must inform you that

we will not be able to commit the substantial resources to it will take to complete

this survey.

However, I have enclosed a copy of a joint EPA/ASTSWMO survey which we completed this past summer regarding the same sites which you are interested in. In

addition, members of my staff met during this past summer with some members of

your staff and discussed the status of PUP sites in Massachusetts. We informed

your staff that the large majority of those sites were participating in our waste site

cleanup program and did not warrant listing on the NPL at this time. It seemed

to come as a surprise to them that these sites were not sitting idly by because they

had not yet been listed on the NPL, but were, in fact, moving forward under the

state program. We also provided your staff with a printout of our data base regarding those sites.

I hope you find the enclosed information useful. It is my understanding that the

joint EPA/ASTSWMO survey results will be available during late spring of 1998.

You should contact ASTSWMO for more information on that.

If I can be of any further assistance, please feel free to contact me at 617-292-

5648.

Very truly yours,

JAMES C. COLMAN

Assistant Commissioner, Bureau of Waste Site Cleanup

cc: Ms. Trudy Coxe, Secretary, Executive Office of Environmental Affairs

Mr. David Struhs, Commissioner, Department of Environmental Protection

Massachusetts PUP Questionnaire Submitted to GAO

Site

Does Site

Warrant

Listing

on NPL?

Status

Wompatuck State Park ........................ no in compliance with state program

SCA Services Landfill .......................... no in compliance with state program

Microwave Development Labs ............. no in compliance with state program

MSM Industries .................................... no in compliance with state program

Royce Aluminum .................................. no in compliance with state program

Vitale Flyash Pit .................................. no site investigation-pending enforcement action

Tremblay Barrell .................................. no preliminary assesment-pending enforcement action

Sudbury Labs ....................................... no site investigation-pending enforcement action

152

Massachusetts PUP Questionnaire Submitted to GAO—Continued

Site

Does Site

Warrant

Listing

on NPL?

Status

Old Wharton Road Property ................. no remedial investigation-pending enforcement actions

Marra Property ..................................... no preliminary assesment-pending enforcement action

Mansfield Bleachery ............................ no site investigation-pending enforcement action

Margetts & Sims Septic ...................... no site investigation-pending enforcement action

Magic Chemical ................................... no preliminary assesment-pending enforcement action

Lot Near Hewitt Wool Mill ................... no preliminary assesment-pending enforcement action

Conrail Yard ........................................ no preliminary assesment-pending enforcement action

Lasco Chemical ................................... no site investigation-pending enforcement action

Blox Chemical ...................................... no remedial investigation-pending enforcement actions

Berkshire Tannery ................................ no site investigation-pending enforcement action

Airport Septic System .......................... no site investigation-pending enforcement action

Alberox ................................................. no remedial investigation-willing low priority site, prp conducting response action

Cotuit Landing ..................................... no remedial investigation-willing low priority site, prp conducting response action

New Bedford Landfill ........................... no landfill-state solid waste program

Eastham Sani-Landfill ........................ no landfill-state solid waste program

Adams Landfill .................................... no landfill-state solid waste program

Bird Property ........................................ no remedial investigation-pending enforcement actions

Acushnet Landfill ................................ no landfill-state solid waste program

Fairhaven Landfill ............................... no landfill-state solid waste program

Belchertown Bulk Carriers ................... no cleanup complete under state program

B&E Tool .............................................. no cleanup complete under state program

Benzenold Organics ............................. no cleanup complete under state program

Warren Landfill .................................... no cleanup complete under state program

Timex Clock Co. (FMR) ........................ no cleanup complete under state program

Three C Electrical Co. (FMR) ............... no cleanup complete under state program

Stanhome, Inc ..................................... no cleanup complete under state program

Roy Bros Haulers ................................. no cleanup complete under state program

Omega Laboratories ............................ no cleanup complete under state program

Northeast Investment Co ..................... no cleanup complete under state program

Mashpee Landfill ................................. no cleanup complete under state program

Kytron Circuits Corp. ........................... no cleanup complete under state program

Cannon’s Engineering ......................... no cleanup complete under state program

Lamger Chemical Systems, Inc ........... no cleanup complete under state program

Boston Edison/Edgar Station .............. no cleanup complete under state program

Astro Circuits ....................................... no cleanup complete understate program

Eastman Gelatine Corp Lime Disp

Area.

no cleanup complete under state program

Rumford Avenue Landfill ..................... no landfill-state solid waste program

Qutney Landfill .................................... no landfill-state solid waste program

Peabody Landfill .................................. no landfill-state solid waste program

Lowell Landfill ..................................... no landfill-state solid waste program

Murray-Carver Landfill ........................ no landfill-state solid waste program

East Bridgewater Landfill ................... no landfill-state solid waste program

Barnstable Landfill .............................. no landfill-state solid waste program

Andover Town Landfill ......................... no landfill-state solid waste program

Indian Head Ski Area .......................... no no action required

Archembault/Holyoke Sani Landfill ..... no landfill-state solid waste program

Hamilton Landfill ................................. no landfill-state solid waste program

Groton Screw Machine ......................... no remedial investigation-pending enforcement actions

Finberg Field ........................................ no no action required

Duralie Company Inc ........................... no remedial investigation-pending enforcement actions

Decor Novelties Inc .............................. no remedial investigation-pending enforcement actions

Crocker Junkyard (FMR) ....................... no remedial investigation-pending enforcement actions

Berkshire Gas Company ...................... no remedial investigation-pending enforcement actions

Auburn Landfill .................................... no cleanup complete under state program

Willow Hill Landfill .............................. no cleanup complete under state program

Johns-Manville Sales Corp .................. ................ already listed

General Latex and Chem Corp ............ ................ already listed

Magnet Corporation ............................. no feasibility study-willing low priority site, prp conducting response action

153

Massachusetts PUP Questionnaire Submitted to GAO—Continued

Site

Does Site

Warrant

Listing

on NPL?

Status

H&L Reed Electroplating ..................... no remedial investigation-low priority, prp conducting response action

GTE Sylvania ........................................ no remedial investigation-low priority, prp conducting response action

Drooker Parul ....................................... no remedial investigation-low priority, prp conducting response action

Star Chemical ...................................... no cleanup complete under state program

Phalo Corp ........................................... no cleanup complete under state program

Owens Illinois FPD Worcester Box PLT no cleanup complete under state program

Norfolk Conveyor Div ........................... no cleanup complete under state program

ND Cass Company ............................... no cleanup complete under state program

Monson Chemical (FMR) ..................... no cleanup complete under state program

Microwave Assoc. Comm. Co .............. no cleanup complete under state program

James River Inc. Mill #8 ..................... no cleanup complete under state program

?Hollingsworth & Vose Co ................... no cleanup complete under state program

?Hollingsworth & Vose Co ................... no no release

Hercules Landfill ................................. no cleanup complete under state program

George Lay Property ............................. no cleanup complete under state program

Du Pont Company ................................ no no release

Maynard Landfill ................................. no landfill-state solid waste program

Unifirst ................................................. no already listed

Townsend Highway Department .......... no remedial investigation-prp conducting response action

Shafter Landfill ................................... no already listed

Robbins Company Inc ......................... no no action required

West Street Property ............................ no remedial investigation-pending enforcement actions

Kempton Road Site .............................. no remedial investigation-pending enforcement actions

Microfab (FMR) .................................... no remedial investigation-pending enforcement actions

North Attlebro Landfill ......................... no landfill-state solid waste program

Nat’l Steel Service Center Inc ............. no no action required

Johns-Manville Asbestos Landfill ........ no already listed

Panama St. Property ........................... no remedial investigation-pending enforcement actions

Worcester Spinning & Finishing Co .... no no action required

Reclamation Systems Inc Landfill ...... no already listed

Kettle Pond .......................................... no already listed

North Carver Landfill ........................... no feasibility study-pending enforcement actions

Costa’s Landfill ................................... no remedial design/action-pending enforcement actions

Holden Landfill .................................... no landfill-state solid waste program

Action Landfill ..................................... no landfill-state solid waste program

Neponset Valley lnd. Park ................... no closed under state program

Raytheon Corp. .................................... no remedial investigation-low priority, prp conducting response action

W R Grace Daramic Plant ................... no remedial investigation-prp conducting response action

Worcester Tool & Stamping ................. no remedial investigation-prp conducting response action

Westfield Gas & Electric Dept. ........... no remedial investigation-prp conducting response action

Townsend/Textron ................................ no site investigation-prp conducting response action

Townsend Harbor Rd Property ............. no remedial investigation-prp conducting response action

Tech Well Corp (FMR) .......................... no remedial investigation-prp conducting response action

Shaw’s Plaza ....................................... no remedial investigation-prp conducting response action

SCA/CAL’s Landfill ............................... no remedial investigation-prp conducting response action

Rockland Industries Inc ...................... no remedial investigation-prp conducting response action

Reliable Elec Finishing ........................ no remedial design/action-prp conducting response action

RCA Corp (FMR) .................................. no site investigation-prp conducting response action

Raytheon Missile Systems ................... no remedial design/action-prp conducting response action

Nuclear Metals Inc .............................. no remedial investigation-prp conducting response action

North Adams Landfill .......................... no remedial investigation-prp conducting response action

Kilburn Glass Industries ...................... no site investigation-prp conducting response action

Indian Line Farm ................................. no remedial investigation-prp conducting response action

Hybripack Inc (FMR) ............................ no remedial investigation-prp conducting response action

Hudson Light & Power ........................ no remedial investigation-prp conducting response action

FMC/Tulco Inc ...................................... no remedial investigation-prp conducting response action

Electrometals Inc ................................. no remedial investigation-prp conducting response action

Cumberland Farms Dairy Inc .............. no remedial investigation-prp conducting response action

Crewse & Cook Co (FMR) .................... no site investigation-prp conducting response action

Compo Industries Inc .......................... no remedial investigation-prp conducting response action

Commonwealth Gas Co ....................... no remedial investigation-prp conducting response action

Colorado Fuel & Iron ........................... no site investigation-prp conducting response action

154

Massachusetts PUP Questionnaire Submitted to GAO—Continued

Site

Does Site

Warrant

Listing

on NPL?

Status

Coal Tar Processing Facility (FMR) ..... no remedial investigation-prp conducting response action

C.M. Bracket Co (FMR) ........................ no site investigation-prp conducting response action

Borden Chemical Co ............................ no remedial investigation-prp conducting response action

Bay State Abrasives/Dresser Ind

Landfill.

no remedial investigation-prp conducting response action

BASF Systems Corp ............................. no remedial investigation-prp conducting response action

Airco Industrial .................................... no remedial investigation-prp conducting response action

Agway/Kress Property .......................... no remedial investigation-prp conducting response action

Alto-tronics Corp ................................. no feasibility study-prp conducting response action

Microwave Assoc Bldg #6 ................... no remedial design/action-prp conducting response action

Stauffer Chemical Co. (FMR) .............. no already listed

Sterling Supply Corp (FMR) ................. no remedial investigation-pending enforcement actions

Titeflex ................................................. no feasibility study-prp conducting response action

Reichhold Chemicals Inc ..................... no site investigation-prp conducting response action

Paramount Cleaners & Dryers ............. no remedial investigation-prp conducting response action

Natick Federal Savings & Loan .......... no site investigation-prp conducting response action

Merrimun Div of Quamco Inc .............. no remedial design/action-prp conducting response action

Lubrix Products Inc ............................. no site investigation-prp conducting response action

JG Grant & Sons Inc ........................... no remedial investigation-prp conducting response action

Hoyt & Worthen Tanning Corp ............ no site investigation-prp conducting response action

Hirons Upholstery ................................ no remedial investigation-prp conducting response action

Frequency Sources Inc Facility ............ no remedial investigation-prp conducting response action

Forbes Lithographic Co (FMR) ............. no preliminary assesment-prp conducting response action

Fabricare House ................................... no remedial investigation-prp conducting response action

Bird & Sons (FMR) .............................. no preliminary assesment-prp conducting response action

Atlantic-Covey Crane Service Inc ........ no remedial investigation-prp conducting response action

Holden Street Fill Area ........................ no no action required

Huntington Avenue Landfill ................. ................ not on state list

South Boston Naval Annex .................. ................ not on state list

Trimount Biotuminous Products .......... ................ not on state list

Brazonics ............................................. no critical compliance deadline not yet reached

Freetown Screw MFG Co ...................... no critical compliance deadline not yet reached

Roccos Disposal Area .......................... no critical compliance deadline not yet reached

Waucantuck Mills (FMR) ..................... no critical compliance deadline not yet reached

US Windpower (FMR) ........................... no possible candidate-not at this time

Sprague Electric .................................. no possible candidate-not at this time

West Brewster Landfill ........................ no landfill-state solid waste program

West Brewster Sanitary Landfill .......... no landfill-state solid waste program

Easthampton Landfill .......................... no landfill-state solid waste program

Easthampton Landfill .......................... no remedial investigation-prp conducting response action

Attlebro Gas Works (FMR) ................... no site investigation-prp conducting response action

Attlebro Gas Works (FMR) ................... no no action required

Mr. TOWNS. Thank you very much.

At this time, Mr. Chairman, one other question I think I have

here, very quickly. One other question—I had a question. Ms.

Kerbawy, I had one question for her.

Ms. Kerbawy, in your testimony today, is it consistent with your

organization’s press release, following a survey of the State program in November 1998, which stated that, ‘‘The vast majority, in

fact, 95.6 percent of the sites listed under the Comprehensive Environmental Response Compensation and Liability Act Information

System do not warrant listings on the National Priorities List.’’

Ms. KERBAWY. Is that consistent with my testimony today?

Mr. TOWNS. Yes.

Ms. KERBAWY. Yes. I believe it is consistent. Many of the sites

on CERCLA, and I think that the GAO survey also came up with

this result; don’t warrant listing on the National Priorities List beVerDate 27-JAN-2000 09:15 Feb 03, 2000 Jkt 010199 PO 00000 Frm 00157 Fmt 6633 Sfmt 6602 E:\HEARINGS\55642 txed02 PsN: txed02
155

cause they are being addressed in other manners or else are lowerrisk sites.

Mr. TOWNS. Let me just switch back over to you, Mr. Guerrero.

Mr. Chairman, I am going to yield back.

Mr. OXLEY. The gentleman yields back. The gentleman from Illinois, Mr. Shimkus.

Mr. SHIMKUS. Thank you, Mr. Chairman.

First, and I am sorry, I wasn’t here to get the pronunciation of

your name——

Ms. KERBAWY. Kerbawy.

Mr. SHIMKUS. Kerbawy?

Ms. KERBAWY. Yes.

Mr. SHIMKUS. You were here for the previous panel, and I wanted to ask, in reference to part of your testimony in which you indicate Congress should amend Superfund to require the EPA to receive the concurrence of the State Governor prior to listing a site

on the NPL, can you elaborate on why you believe it is imperative

for State Governors to be given this right of concurrence?

Ms. KERBAWY. Yes. State programs are really quite well developed and we have a lot of activity going on at these sites. Although

it is very rare that EPA will want to list a site that the Governors

oppose, when that happens, it can create great difficulties and tremendous disruption in the work that needs to be done on a site.

We really think that our programs are very efficient. We are moving a lot of them through to completion and, when you compare it

to—Mr. Fields mentioned that, if your site is on the National Priorities List, 8 years to go through the Superfund process. And, that

is a long time and we can address a site faster than that.

We really would prefer to have sites move forward, and if we are

working with a responsible party or we are working on a site ourselves, to have it go into a listing process will be very disruptive.

Mr. SHIMKUS. In my question to Mr. Fields, he had brought up

a case where a site, he mentioned, would affect three different

States, and it was difficult to get the concurrence of the three surrounding Governors. Do you know of any such case out there?

Ms. KERBAWY. I am not familiar with any such cases, but I don’t

claim to know of every site in the Nation.

Mr. SHIMKUS. Thank you.

Mr. Guerrero, yesterday I spoke to local businesses from Quincy,

Illinois, and I am having my own Superfund experience in the last

11⁄2 months. Only two restaurants were named as PRP’s for the

Quincy landfill cleanup while Quincy has—obviously, it is a large

community—dozens of local restaurants. This raises very serious

concerns about the EPA’s method of collecting proper data to determine responsibility. I think it is obvious the EPA has probably included only two restaurants because they were simply among the

businesses that kept the best records. Does this method of record

collection strike you as somewhat unscientific?

Mr. GUERRERO. I am sorry, not being familiar with this specific

case, I can’t really comment on the specifics of it.

Mr. SHIMKUS. Well, let me just put it this way: The site closed

over 20 years ago. What the EPA is attempting to do is go through

municipal landfill records kept by the municipality to determine

the PRP’s. They have only cited two to have judgments against out

156

of the dozens of restaurants, and these are just mom-and-pop restaurants. If the EPA were to use that method, would you consider

that unscientific?

Mr. GUERRERO. It certainly sounds on its face to be unfair.

Again, you know, I can’t speak for how EPA did their particular

record search in that case and whether it was exhaustive or complete or——

Mr. SHIMKUS. Well, you can tell I have my own axe to grind on

the Quincy area. So, let me just move to other issues in part of

your testimony.

You have consistently reported that less than half of EPA’s

spending on the Superfund actually goes to contractor cleanup

work. EPA reports that a larger share of ‘‘spending,’’ goes to clean

up work. What is the difference between these estimates?

Mr. GUERRERO. The difference is really accounted for by using

different categories. EPA has more categories of expenses that they

consider to be directly related to cleanup. We are currently doing

some work now, looking at those other categories, to make a better

determination what percent of those categories go directly to site

cleanups and what are not directly related——

Mr. SHIMKUS. Can you give me an example of that? Are they

going to consider litigation as part of cleanup?

Mr. GUERRERO. This is Mr. Barchok, who is doing the work right

now.

Mr. BARCHOK. What we are doing is looking at it in a little different way. We are analyzing how much of the money is going to

contract or cleanup work; that is, contractors who study, design,

and implement cleanups. Another categorization of the expenditures is how much of the expenditures are site-specific—that is,

that are charged to specific sites—and how much of the money is

nonsite-specific. So, it gives you a cut as to how directly I think,

EPA—and, there is some subjectivity in how you define cleanup.

We are trying to take it to an analytic level and come up with categories of expenditures and place them in a box and then we allow

others, like yourself, to say, ‘‘What does that mean to you?’’

With regard to, I think, the category for enforcement, I think our

current work is showing that, roughly, about 50 percent of that is

site-specific and about 50 percent of the expenditures in that category are nonsite-specific, administrative in nature.

Mr. GUERRERO. The key here is really, in my opinion, not how

you slice this particular pie, but whether what is being allocated

to cleanup work, site-specific cleanup work, is either increasing or

decreasing over time. This is a program that will soon be entering

its third decade. You would expect, by this point in time, that the

large proportion of that Superfund dollar would be spent onsite

cleanup. Unfortunately, the recent trend shows that does not appear to be the case. So, no matter how you slice it or dice it, the

trend it what is important, and the trend is moving in the wrong

direction at this time.

Mr. SHIMKUS. And you went right in to the follow-up question.

And, just based upon the fiscal year’s of 1996 and 1997, you are,

then, saying that the spending going to contractors for cleanup has

gone down. Can you tell me what the projection is for the fiscal

year 1998?

157

Mr. GUERRERO. Very preliminary information suggests that it is

continuing to decline.

Mr. SHIMKUS. Thank you, Mr. Chairman. I will yield back.

Mr. OXLEY. Thank you, gentlemen. Thank you both for your patience and your excellent testimony. We appreciate your indulgence. And, the subcommittee stands adjourned.

[Whereupon, at 5:35 p.m., the subcommittee was adjourned.]

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