U.S. GOVERNMENT PUBLISHING OFFICE

29–746 WASHINGTON : 2019

MODERNIZING THE SUPERFUND CLEANUP 

PROGRAM 

HEARING 

BEFORE THE

SUBCOMMITTEE ON ENVIRONMENT 

OF THE

COMMITTEE ON ENERGY AND 

COMMERCE 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED FIFTEENTH CONGRESS 

SECOND SESSION 

JANUARY 18, 2018 

Serial No. 115–92 

( 

Printed for the use of the Committee on Energy and Commerce 

energycommerce.house.gov 

(II) 

COMMITTEE ON ENERGY AND COMMERCE 

GREG WALDEN, Oregon 

Chairman 

JOE BARTON, Texas 

Vice Chairman 

FRED UPTON, Michigan 

JOHN SHIMKUS, Illinois 

MICHAEL C. BURGESS, Texas 

MARSHA BLACKBURN, Tennessee 

STEVE SCALISE, Louisiana 

ROBERT E. LATTA, Ohio 

CATHY MCMORRIS RODGERS, Washington 

GREGG HARPER, Mississippi 

LEONARD LANCE, New Jersey 

BRETT GUTHRIE, Kentucky 

PETE OLSON, Texas 

DAVID B. MCKINLEY, West Virginia 

ADAM KINZINGER, Illinois 

H. MORGAN GRIFFITH, Virginia 

GUS M. BILIRAKIS, Florida 

BILL JOHNSON, Ohio 

BILLY LONG, Missouri 

LARRY BUCSHON, Indiana 

BILL FLORES, Texas 

SUSAN W. BROOKS, Indiana 

MARKWAYNE MULLIN, Oklahoma 

RICHARD HUDSON, North Carolina 

CHRIS COLLINS, New York 

KEVIN CRAMER, North Dakota 

TIM WALBERG, Michigan 

MIMI WALTERS, California 

RYAN A. COSTELLO, Pennsylvania 

EARL L. ‘‘BUDDY’’ CARTER, Georgia 

JEFF DUNCAN, South Carolina 

FRANK PALLONE, JR., New Jersey 

Ranking Member 

BOBBY L. RUSH, Illinois 

ANNA G. ESHOO, California 

ELIOT L. ENGEL, New York 

GENE GREEN, Texas 

DIANA DEGETTE, Colorado 

MICHAEL F. DOYLE, Pennsylvania 

JANICE D. SCHAKOWSKY, Illinois 

G.K. BUTTERFIELD, North Carolina 

DORIS O. MATSUI, California 

KATHY CASTOR, Florida 

JOHN P. SARBANES, Maryland 

JERRY MCNERNEY, California 

PETER WELCH, Vermont 

BEN RAY LUJA ́ N, New Mexico 

PAUL TONKO, New York 

YVETTE D. CLARKE, New York 

DAVID LOEBSACK, Iowa 

KURT SCHRADER, Oregon 

JOSEPH P. KENNEDY, III, Massachusetts 

TONY CA ́ RDENAS, CaliforniaL RUIZ, 

California 

SCOTT H. PETERS, California 

DEBBIE DINGELL, Michigan 

SUBCOMMITTEE ON ENVIRONMENT

JOHN SHIMKUS, Illinois 

Chairman 

DAVID B. MCKINLEY, West Virginia 

Vice Chairman 

JOE BARTON, Texas 

TIM MURPHY, Pennsylvania 

MARSHA BLACKBURN, Tennessee 

GREGG HARPER, Mississippi 

PETE OLSON, Texas 

BILL JOHNSON, Ohio 

BILL FLORES, Texas 

RICHARD HUDSON, North Carolina 

KEVIN CRAMER, North Dakota 

TIM WALBERG, Michigan 

EARL L. ‘‘BUDDY’’ CARTER, Georgia 

JEFF DUNCAN, South Carolina 

GREG WALDEN, Oregon (ex officio) 

PAUL TONKO, New York 

Ranking Member 

RAUL RUIZ, California 

SCOTT H. PETERS, California 

GENE GREEN, Texas 

DIANA DEGETTE, Colorado 

JERRY MCNERNEY, California 

TONY CA ́ RDENAS, California 

DEBBIE DINGELL, Michigan 

DORIS O. MATSUI, California 

FRANK PALLONE, JR., New Jersey (ex 

officio) 

(III) 

C O N T E N T S 

Page 

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

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

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

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

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

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

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

Hon. Marsha Blackburn, a Representative in Congress from the State of 

Tennessee, opening statement ............................................................................ 7 

Hon. Greg Walden, a Representative in Congress from the State of Oregon, 

prepared statement .............................................................................................. 119 

WITNESSES

Barry Breen, Principal Deputy Assistant Administrator of the Office of Land 

and Emergency Management, U.S. Environmental Protection Agency .......... 8 

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

Answers to submitted questions ...................................................................... 142 

Steve Cobb, Chief, Land Division, Alabama Department of Environmental 

Management, on behalf of the Association of State And Territorial Solid 

Waste Management Officials .............................................................................. 42 

Prepared statement 1 ........................................................................................ 1046 

Answers to submitted questions ...................................................................... 154 

J. Winston Porter, Environmental and Energy Consultant ................................. 59 

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

Answers to submitted questions ...................................................................... 164 

James McKenna, Portland Harbor Policy Analyst, Governor Brown’s Natural 

Resources Office ................................................................................................... 69 

Prepared statement .......................................................................................... 71 

Answers to submitted questions ...................................................................... 166 

Debbie Mans, Executive Director and Baykeeper, NY/NJ Baykeeper ................ 81 

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

Katherine Probst, Independent Consultant ........................................................... 92 

Prepared statement 2 ........................................................................................ 94 

SUBMITTED MATERIAL

Office of Solid Waste and Emergency Response Climate Change Adaptation 

Implementation Plan, June 2014, submitted by Mr. McNerney ...................... 121 

1 The attachments to Mr. Cobb’s statement can be found at: https:// 

docs.house.gov/meetings/if/if18/20180118/106783/hhrg-115-if18-wstatecobbs-20180118.pdf. 2 The attachments to Ms. Probst’s statement can be found at: https:// 

docs.house.gov/meetings/if/if18/20180118/106783/hhrg-115-if18-wstateprobstk-20180118.pdf. 

(1) 

MODERNIZING THE SUPERFUND CLEANUP 

PROGRAM 

THURSDAY, JANUARY 18, 2018 

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

Washington, DC. 

The subcommittee met, pursuant to call, at 10:15 a.m., in room 

2322 Rayburn House Office Building, Hon. John Shimkus (chairman of the subcommittee) presiding. 

Members present: Representatives Shimkus, McKinley, Barton, 

Blackburn, Harper, Olson, Johnson, Flores, Hudson, Walberg, Carter, Tonko, Ruiz, Green, DeGette, McNerney, Ca ́ rdenas, Dingell, 

and Pallone (ex officio). 

Staff present: Allie Bury, Legislative Clerk, Energy/Environment; 

Jordan Haverly, Policy Coordinator, Environment; A.T. Johnston, 

Senior Policy Advisor, Energy; Mary Martin, Deputy Chief Counsel, 

Energy & Environment; Katie McKeogh, Press Assistant; Tina 

Richards, Counsel, Environment; Dan Schneider, Press Secretary; 

Jennifer Sherman, Press Secretary; Andy Zach, Senior Professional 

Staff Member, Environment; Jeff Carroll, Minority Staff Director; 

Jacqueline Cohen, Minority Chief Environment Counsel; Jean 

Fruci, Minority Energy and Environment Policy Advisor; Evan Gilbert, Minority Press Assistant; Tiffany Guarascio, Minority Deputy 

Staff Director and Chief Health Advisor; Rick Kessler, Minority 

Senior Advisor and Staff Director, Energy and Environment; Alexander Ratner, Minority Policy Analyst; Tuley Wright, Minority Energy and Environment Policy Advisor; C.J. Young, Minority Press 

Secretary; and Catherine Zander, Minority Environment Fellow. 

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

Mr. SHIMKUS. The subcommittee will now come to order. Thank 

you for closing the door. The chair recognizes himself for 5 minutes. 

Today, we continue the subcommittee’s oversight of the Superfund cleanup program and we initiate a discussion with the EPA 

and other stakeholders about ways to modernize the program to 

make sure that the Superfund sites around the country are getting 

cleaned up and returned to productive use in the most efficient and 

effective manner. 

The Comprehensive Environmental Response, Compensation, 

and Liability Act, commonly referred to as CERCLA, also known as 

‘‘Superfund,’’ was signed into law on December 11th, 1980. The National Priorities List came into existence in 1983 and it is the 

2 

prioritization of sites with known releases or threatened releases of 

hazardous substances throughout the United States. As of November 2017, there were over 1,300 sites on the National Priorities List 

and many of the sites have been on the list for more than 20 years. 

The process of evaluating contamination at the site and determining the appropriate remedy can take years or even decades, 

which delays the cleanup of the site and prevents the area from 

being returned to productive use, which is why today’s hearing is 

so important. 

We applaud Administrator Pruitt for making Superfund cleanup 

a priority because he correctly noted that cleanups take too long to 

start and too long to complete. To improve the efficiency and efficacy of the Superfund program, EPA developed an extensive list of 

recommendations to restructure the cleanup process and make sure 

that responsible parties and other stakeholders are fully engaged 

in the process. I would like to welcome Mr. Breen, the principal 

deputy assistant administrator for the Office of Land and Emergency Management, who will hopefully be able to share with us information about the efforts undertaken by the Agency to expedite 

cleanups and reinvigorate redevelopment. We hope that today will 

be a start of a productive dialogue about the Superfund cleanup 

program and how we can all work together to make sure that the 

program results in timely and efficient cleanups. 

When CERCLA was enacted, very few states had their own 

cleanup programs, whereas today all states have robust and successful programs. We need to assess whether states should have a 

more significant role in CERCLA cleanups and whether there are 

cleanups that are best handled entirely by the states. Furthermore, 

there is a lot of process involved in CERCLA cleanups. We need to 

take a serious look at whether the process is working or whether 

it encourages or impedes cleanups. 

To help us with this analysis, we welcome our second panel. We 

welcome back Mr. Cobb from the State of Alabama, who is here on 

behalf of a good friend of the subcommittee, ASTSWMO. Mr. Cobb 

is the head of the Land Division in Alabama and will hopefully talk 

to us about how far states have come with developing cleanup programs and whether the current role for states in CERCLA cleanups 

is appropriate. We also welcome Mr. Porter, who is former head of 

the EPA’s Office of Solid Waste and Emergency Response. Mr. Porter has been in the trenches at EPA with respect to CERCLA 

cleanups and hopefully he can share with us his ideas and suggestions for making the program work better. We also have with us 

today Jim McKenna, who comes from us from Governor Brown’s office in Oregon, who I personally met on my trip to that Superfund 

site with our colleague a couple months ago. Mr. McKenna has over 

30 years of experience working with the Superfund cleanup program and we welcome his suggestions for modernizing the program 

both in the state and responsible party perspective. And last but 

not least, we will hear from Katherine Probst, who truthfully wrote 

a detailed report on how to improve the Superfund program, and 

Ms. Mans, who is part of the Community Advisory Group for the 

Passaic River—I should know that—Superfund site in New Jersey, 

which was listed on the National Priorities List in 1984. So, hopeVerDate Nov 24 2008 12:32 Jan 10, 2019 Jkt 037690 PO 00000 Frm 00006 Fmt 6633 Sfmt 6633 I:\MY DOCS\HEARINGS 115\HEARINGS\115-92 CHRIS
3 

fully, she will have some productive suggestions for us how to 

make the program work better. 

So, we welcome everyone. Mr. Carter, do you want to take my 

last minute to do your introduction? 

[The prepared statement of Mr. Shimkus follows:] 

PREPARED STATEMENT OF HON. JOHN SHIMKUS

The Subcommittee will now come to order. The Chair recognizes himself for 5 

minutes. 

Today we continue the Subcommittee’s oversight of the Superfund cleanup program and we initiate a discussion with EPA and other stakeholders about ways to 

modernize the program to make sure that Superfund sites around the country are 

getting cleaned up and returned to productive use in the most efficient and effective 

manner possible. 

The Comprehensive Environmental Response, Compensation, and Liability Act or 

CERCLA also known as ‘Superfund’ was signed into law on December 11, 1980. The 

National Priorities List came into existence in 1983 and it is the prioritization of 

sites with known releases or threatened releases of hazardous substances throughout the United States. As of November 2017, there were over 1,300 sites on the NPL 

and many of the sites have been on the list for more than 20 years. The process 

of evaluating contamination at a site and determining the appropriate remedy can 

take years or even decades which delays the cleanup of the site and prevents the 

area from being returned to productive use—which is why today’s hearing is so important. 

We applaud Administrator Pruitt for making Superfund cleanups a priority because he correctly noted that cleanups take too long to start and too long to complete. To improve the efficiency and efficacy of the Superfund program, EPA developed an extensive list of recommendations to restructure the cleanup process and 

make sure that responsible parties and other stakeholders are fully engaged in the 

process. I would like to welcome Mr. Breen, the Principal Deputy Assistant Administrator for the Office of Land and Emergency Management who will hopefully be 

able to share with us information about the efforts undertaken by the Agency to expedite cleanups and reinvigorate redevelopment. We hope that today will be the 

start of a productive dialogue about the Superfund cleanup program and how we 

can all work together to make sure that the program results in timely and efficient 

cleanups. 

When CERCLA was enacted, very few states had their own cleanup programs. 

Whereas, today all states have robust and successful programs. We need to assess 

whether States should have a more significant role in CERCLA cleanups and 

whether there are cleanups that are best handled entirely by the States. Furthermore, there is a lot of process involved with CERCLA cleanups. We need to take 

a serious look at whether that process is working and whether it encourages or impedes cleanups. 

To help us with this analysis, we welcome our second panel. We welcome back 

Mr. Cobb from the State of Alabama who is here on behalf of a good friend of the 

Subcommittee, ASTSWMO. Mr. Cobb is the head of the land division in Alabama 

and he will hopefully talk to us about how far states have come with developing 

cleanup programs and whether the current role for states in CERCLA cleanups is 

appropriate. We also welcome Mr. Porter, who is the former head of EPA’s Office 

of Solid Waste and Emergency Response. Mr. Porter has been in the trenches at 

EPA with respect to CERCLA cleanups and hopefully he can share with us his ideas 

and suggestions for making the program work better. We also have with us today, 

Jim McKenna who comes to us from Governor Brown’s office in Oregon. Mr. McKenna has over 30 years of experience working with the superfund cleanup program 

and we welcome his suggestions for modernizing the program both from the State 

and responsible party perspective. And last, but not least, we will hear from Katherine Probst who recently wrote a detailed report on how to improve the Superfund 

program and Ms. Mans who is part of the Community Advisory Group for the Passaic River Superfund Site in New Jersey which was listed on the National Priorities 

List in 1984 so hopefully she will have some productive suggestions for us on how 

to make the program work better. So, welcome everyone. 

Mr. CARTER. Thank you, Mr. Chairman. 

4 

I just wanted to recognize that you’ve already mentioned Dr. 

Winston Porter, who is here. He happens to reside in my district 

and I appreciate him being here very much. 

He’s very familiar with the four Superfund sites that we have in 

our district and we appreciate that. As you mentioned, Mr. Chairman, he was the EPA’s assistant administrator with national responsibility for the Superfund program. We are very pleased to 

have him here and appreciate his expertise and him sharing it with 

us. 

Thank you, Mr. Chairman. I yield back. 

Mr. SHIMKUS. The gentleman yields back to me and I yield back 

my time. 

The chair now recognizes the ranking member of the subcommittee, Mr. Tonko from New York, for 5 minutes. 

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

Mr. TONKO. Thank you, Mr. Chair, and thank you for holding 

this hearing on modernizing EPA’s Superfund program. 

And thank you, Mr. Breen, for being here. Appreciate you being 

here. However, I am disappointed that Albert Kelly, who led the 

Superfund task force, is not with us. 

It is critical that we hear from the Agency’s political leadership 

on this and other important issues. In 1980, Congress passed the 

Comprehensive Environmental Response Compensation and Liability Act, which is more commonly known as Superfund. 

Superfund is critical to protecting Americans’ health and the environment. It is estimated that over 50 million Americans live 

within 3 miles of a Superfund site. Today, there are over 1,300 

sites listed on the National Priorities List. These represent many 

of the most contaminated sites in our country. There is no question 

that remediation of these sites is complex. There are many reasons 

why cleanups are slow and often delayed, and I believe many members would be interested in examining what changes are needed to 

the program to ensure that it operates more effectively, moving forward. 

But we cannot discount the importance of funding and the need 

for robust engagement with stakeholders and the people that live 

near these sites. Administrator Pruitt has said remediating these 

sites is a top priority. However, the president’s fiscal year 2018 

budget request proposed a 30 percent cut to the program. The EPA 

has also proposed eliminating financial support for the Justice Department’s Environment and Natural Resources Division. EPA provides this office with 27 percent of its budget which is used to support Superfund efforts. 

Superfund has always been based on the principle of the polluters pay. Responsible parties should foot the bill to clean up contaminated sites, not our taxpayers. But it is critical that EPA has 

the resources to hold responsible parties accountable as well as ensure remediation of ‘‘orphaned’’ sites. 

Similarly, Superfund can only succeed with public buy-in. Rushing to delete sites without engaging stakeholders or failing to alleviate their concerns that a site is not adequately remediated will 

5 

undermine the integrity of the program as well as its ability to 

complete meaningful cleanups. 

As we will hear this morning, Administrator Pruitt has taken actions related to Superfund. In July, the Superfund task force released its report with 42 recommendations and last month the EPA 

published a list of 21 sites targeted for immediate intense action. 

I have questions and concerns about how these recommendations 

and priorities have been developed. These cases are yet additional 

data points in an unacceptable pattern of behavior. 

This administration’s aversion to transparency and public influence is well noted. In the case of the targeted list, the task force’s 

own recommendation was not even closely followed. As far as I am 

aware, there was no method released publicly for determining site 

selection and it seems to me that sites where human exposure is 

not under control were not sufficiently prioritized. 

It appears that many of these sites do not have much in common 

with one another. According to the questions and answers document on EPA’s website, they were at least partially chosen because 

they have upcoming critical milestones and intent is to have sites 

added and removed from this list, going forward. I am not convinced that cycling sites through a meaningless list and churning 

out press releases celebrating milestones are going to result in 

these sites being cleaned up more quickly. So far, this list has only 

raised more questions and caused confusion with stakeholders. As 

always with Superfund, members will have questions about sites of 

great interest to them. 

For the people of my district, that means the Hudson River. I am 

very concerned about the status of the site. EPA’s draft second 5- 

year review concluded that today the upper Hudson fails to meet 

the minimum standard for Superfund cleanup, protection of human 

health, and the environment. The draft review concluded that EPA 

expects the site to be protected at some point in the very distant 

future, 55 years or more, although that assumption seems tenuous. 

The U.S. Fish & Wildlife Service, the National Oceanic and Atmospheric Administration, and New York State have all challenged 

EPA’s timeline for achieving the remediation goals and the adequacy of the cleanup. 

The communities I represent have already waited a lifetime to 

see this river and its rich heritage restored. They should not have 

to wait another 5 or 6 decades as a best-case scenario. 

The Federal Government has a responsibility to ensure that the 

Hudson River is indeed protected. So, I encourage EPA to reevaluate the draft review. 

Finally, I want to emphasize that rolling back environmental 

protections and reducing enforcement actions will ensure that we 

continue to add sites to the National Priorities List in the future. 

I hope we can consider Superfund’s role in the context of the Agency’s broader plan to protect human health and the environment. 

And with that, Mr. Chair, I yield back. 

Mr. SHIMKUS. The gentleman yields back his time. As the chair 

waits for the chairman of the full committee, I would like to turn 

to the ranking member of the full committee, Mr. Pallone, for 5 

minutes. 

6 

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

Mr. PALLONE. Thank you, Mr. Chairman, for calling this hearing 

on the Superfund program, which is a critical public health program that’s made an enormous difference in my state and nationwide. 

It is essential that this committee conduct oversight of the controversial and, frankly, confounding implementation decisions 

being made by President Trump, Administrator Pruitt, and the rest 

of the political leadership at EPA. 

In the past month, this administration has published not one but 

two new lists of Superfund sites with no public process and no 

clear explanation of how sites were chosen or will be impacted and 

neither of these lists focuses on the riskiest sites, calling into question this administration’s commitment to cleaning up the most 

toxic sites poisoning communities around this country. 

Unfortunately, we do not have anyone from EPA’s political leadership here today to answer our questions and, Mr. Chairman, this 

administration has gone to extraordinary lengths to avoid transparency with the public and with Congress and I repeatedly raised 

these concerns with you and Chairman Walden and I have to raise 

them again today. 

EPA did not send a single witness to testify before this committee until November. Last month, Administrator Pruitt appeared 

for the first time, a full 10 months after taking office, and at that 

hearing he pledged to provide witnesses for future hearings and to 

respond to our oversight request. 

Well, over a month has passed since he appeared, and we have 

received no additional responses to our oversight requests, and despite the promise of Albert Kelly testifying today, we are now told 

he had to back out because of unavoidable conflicts. Now, strangely, these conflicts appeared very recently, despite EPA being apprised of this hearing some 2 months ago. 

Mr. Chairman, I believe Mr. Kelly’s unavoidable conflicts have 

nothing to do with scheduling and everything to do with his troubling financial ties. Mr. Kelly owes this committee and the public 

a thorough explanation of his past misdeeds, an explanation that 

EPA’s career staff cannot provide. 

Public office is a public trust and that’s especially true for the 

Superfund program—billions of dollars moved to the Superfund 

trust fund and the Superfund special accounts, money that can 

mean the difference between a toxic environment and a safe one for 

communities around the country. And Mr. Kelly, who Administrator Pruitt pledged in charge of these funds or placed, I should 

say, in charge of these funds, was just this past year banned for 

life from working in any federally-insured bank or financial institution. He was banned for life because of his unfitness to serve and 

his willful or continuing disregard for the safety and soundness of 

the bank for which he worked. 

Is that really the type of person we should trust to run the 

Superfund program? In September, I wrote to EPA to ask for an 

explanation and, of course, like so many other inquiries made to 

this EPA there has been no response. When we first learned that 

7 

Mr. Kelly would skip this hearing, we urged you to postpone for 

good cause. Mr. Kelly appears to be running the Superfund program singlehandedly and generating no records. He’s the only one 

who can answer questions about the decision he has made. This 

hearing should have been postponed until he was available. That 

didn’t happen so now we should schedule another hearing and the 

committee should use all of its available tools to ensure that Mr. 

Kelly appears. 

All I am saying is that we must hold this administration accountable but that’s not happening with this Republican majority. Cleaning up toxic Superfund sites protects human health and the environment. We must move past the press releases to protect the 

Superfund program and all the essential laws that the EPA implements. And I just hope in this new year we can move forward together in our oversight efforts. I just think this program is too important, Mr. Chairman. The EPA is too important. We can’t accept 

this administration’s lack of transparency and we can’t accept the 

appointment of people who do not deserve, in my opinion, the 

public’s trust. 

And I yield back, unless someone else wants some of my time. 

But I don’t think so. Thank you. 

Mr. SHIMKUS. The gentleman yields back his time. 

The chair is looking for the chairman, who has not arrived. Anyone else—majority? 

The chair recognizes the gentlelady from Tennessee for 5 minutes. 

OPENING STATEMENT OF HON. MARSHA BLACKBURN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF TENNESSEE 

Mrs. BLACKBURN. Thank you. Thank you, Mr. Chairman. 

I want to applaud the EPA’s back to basics approach and Administrator Pruitt’s commitment to focus on the Agency’s core mission. 

I think these are steps in the right direction and to stay within the 

bounds of constitutional law and to cut unnecessary bureaucracy. 

And I will tell you, in Tennessee my constituents talk about the 

work that’s being done to cut regulation and bureaucracy. They like 

these steps. 

Now, in Tennessee there are 28 Superfund sites. Four are on the 

National Priorities List and they are in my district. So, this is 

something that we focus on. You need to clean up these contaminated sites. There is no question about it and I will tell you, I have 

questions about the amount of process and the foot dragging that 

is involved in cleaning up these sites under CERCLA. 

Bids for these sites should not be taking 15 or 20 years. That 

would be commons sense. We know that process has to speed up. 

Administrator Pruitt has said a couple of things. Back last June 

at an appropriations hearing he made a comment, ‘‘It’s more about 

decision making, leadership, and management than money.’’ 

I agree with him on that. As I said, it ought not to take 15 or 

20 years. At our oversight hearing in December he said, ‘‘Most of 

it is a lack of direction on how we should clean up.’’ 

So, these are solvable problems. Communities want to see these 

sites cleaned up. They want to see the problem solved. So, we all 

8 

know it is possible to do more with less. The private sector does 

this every single day and it is time for government to start to do 

more with less and to do it in a more timely fashion and time efficient manner. 

Let us be responsible to the states, to the communities, and to 

the parties that are involved in this process and let’s speed this up 

and get these cleanup efforts in gear. 

And I will yield, Mr. Chairman, to whomever would like the time 

or yield it back. 

Mr. SHIMKUS. It looks like you could yield it back and we’d be 

great. 

Mrs. BLACKBURN. I yield back. 

Mr. SHIMKUS. Gentlelady yields back her time and we appreciate 

that. 

All time having expired, the chair now recognizes the first panel. 

Mr. Barry Breen, Principal Deputy Assistant Administrator for 

the Office of Land and Emergency Management, U.S. Environmental Protection Agency—before the hearing, he and I spoke. We 

both served in the Army at the same time. 

So, thank you for your service and you’re recognized for 5 minutes. 

STATEMENT OF BARRY BREEN, PRINCIPAL DEPUTY ASSISTANT ADMINISTRATOR OF THE OFFICE OF LAND AND EMERGENCY MANAGEMENT, U.S. ENVIRONMENTAL PROTECTION 

AGENCY 

Mr. BREEN. Thank you, Mr. Shimkus, and thank you, Ranking 

Member Tonko and Ranking Member Pallone. Thank you, all the 

members of the subcommittee. We are grateful to be here and to 

answer your questions. 

The Superfund program is a premier example of how we can both 

protect the environment and pursue economic development at the 

same time. The importance of Superfund to human health is highlighted in recent academic research by faculty at Princeton University, University of Chicago, and the University of California at 

Berkeley. 

Superfund cleanups reduce the incidents of congenital abnormalities, birth defects in infants, by as much as 25 percent for families 

living within 2,000 meters of a site. 

At the same time, Superfund is important to economic development. Faculty at Duke University and the University of Pittsburgh 

found that increased residential property values within three miles 

of Superfund sites go up between 18 and 24 percent when the sites 

are cleaned up and deleted from the NPL. 

Superfund responds to both short-term emergencies and longterm remedial action needs. Each year about 30,000 calls come into 

the national response center and many of these are best handled 

by state and local responders. But EPA works with our Coast 

Guard partners in responding to roughly 150 to 200 of these releases each year. 

EPA has a 24-hour response capability and for the last 11 years 

EPA completed or oversaw 3,600 and some response actions. At the 

same time as those short-term emergencies are being dealt with, 

the Superfund remedial program addresses complex, high-priority, 

9 

long-term cleanups. They reflect both legacy practices from decades 

ago and more recent contamination as well. 

Through 2017, EPA and our partners completed final remedial 

assessments at more than 51,000 potentially contaminated sites. 

But at the same time much has been done, there’s much left to do 

and we’ve taken several steps to further improve and expedite the 

process of site remediation. 

The administrator established a Superfund task force to provide 

recommendations on an expedited time frame. The task force report provides 42 recommendations and we adopted it in July. We 

included a list, as Mr. Tonko mentioned, of the 21 sites for immediate and intense attention. In developing the list, we considered 

sites that would benefit from the administrator’s direct engagement 

and have identifiable actions to protect human health and the environment. We wanted to spur action at sites where opportunities 

exist to act quickly. Sites will move on and off the list as appropriate. 

We also recently released an initial list of Superfund sites with 

the greatest expected redevelopment and potential for commercial 

development. These are where we think there’s been previous outside interest, access to transportation corridors, land values, and 

similar development drivers. It’s not a complete list of everything 

with redevelopment potential and we hope sites will move on and 

off the list as appropriate. 

And we are addressing risk at all Superfund sites, not just of 

those on the list. The administrator’s expectation is a renewed 

focus on accelerating work in progress at all sites nationwide. 

We appreciate your interest in our program. Protecting human 

health and the environment by enhancing ongoing cleanup and 

reuse remains one of EPA’s top priorities. 

Such efforts will always be undertaken in partnership with other 

federal departments and agencies, states, tribes, and local communities in a manner that protects human health and the environment and seeks economic development as well. 

Thank you very much, and I will look forward to your questions. 

[The prepared statement of Mr. Breen follows:] 

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TESTIMONY OF 

BARRY BREEN 

PRINCIPAL DEPUTY ASSISTANT ADMINISTRATOR 

OFFICE OF LAND AND EMERGENCY MANAGEMENT 

U.S. ENVIRONMENTAL PROTECTION AGENCY 

BEFORE THE 

SUBCOMMITTEE ON ENVIRONMENT AND THE ECONOMY 

ENERGY AND COMMERCE COMMITTEE 

HOUSE OF REPRESENTATIVES 

JANUARY 18,2018 

Chairman Shimkus, Ranking Member Tonko, and members of the Subcommittee, thank you for 

the opportunity to appear today to discuss the Superfund program's accomplishments and 

challenges. 

At EPA, cleaning up the nation's Superfund sites and returning them to communities for 

beneficial use is one of Administrator Pruitt's top priorities. The Superfund program is a premier 

example of how EPA can accomplish its core mission of protecting human health and the 

environment while simultaneously promoting jobs and economic growth in thousands of 

communities across the country. 

The importance of the Superfund cleanup program to human health is highlighted by academic 

research by faculty at Princeton University, University of Chicago, and University of California, 

Berkley, published in the American Economic Review. that found that investment in Superfund 

cleanups reduces the incidence of congenital abnormalities in infants by as much as 25 percent 

for families living within 2,000 meters of a site. 1 

1 Currie, Janet, Michael Greenstone, and Enrico Moretti.20 II. "Superfund Cleanups and Infant Health". American 

Economic Review, 101(3): 435-441 
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Superfund cleanups also provide significant economic benefits to communities. EPA has 

collected data showing that at 487 Superfund sites that are in reuse, 6,622 businesses are 

generating $43.6 billion in sales and employ 156,352 people who earned a combined income of 

$11.2 billion.2 Work under the Superfund program improves property values as well. A peerreviewed study by researchers at Duke University and University of Pittsburgh found that 

residential property values within three miles of Superfund sites increased 18.7- 24.4% when 

sites were cleaned up and deleted from the NPL. 3 

Superfund Removal/Emergency Response 

The Superfund program includes shorter-term removal actions to mitigate immediate threats to 

human health and the environment, and remedial actions, which address more complex and 

longer-term cleanup. 

Each year, approximately 30,000 applicable release notifications arc reported in the United 

States. While many of these arc best handled by state and local responders, EPA works with the 

Coast Guard as our key partner in the federal government's response to these releases. EPA has a 

24-hour-a-day response capability, and from FY 2007 through FY 2017, EPA completed or 

oversaw 3,655 response actions to protect communities and reduce the immediate threat to 

human health and the environment across the country. The total for FY 2017 alone was 255. 

2 For more information on Redevelopment Economics and in depth case studies please use the link below. 

https://www.epa.gov/supcrfund~redevelopment-initiative/redevelopment-cconomics 

3 Gamper-Rabindran, Shanti and Christopher Timmons. 2013. "Does cleanup of hazardous waste sites raise housing values? 

Evidence of spatially localized benefits," Journal of Environmental Economics and Management 65(3): 345-360 

2 
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Superfund Remedial Program 

The Superfund Remedial program addresses complex, high-priority, longer-term cleanups. 

These contaminated sites reflect both legacy practices and more recent activity. There are 

currently I ,345 sites on the NPL, and 55 sites have been proposed for the list but not yet 

finalized. 

Earlier this month, EPA announced that in 2017, the agency deleted all or parts of seven 

Superfund sites from the NPL. As of the end of fiscal year 2017, 394 sites had been deleted from 

the NPL and 836 Superfund sites were ready for anticipated usc on a site-wide basis. Another 

key measure at Superfund sites is when human exposure has been brought under control. This 

information is currently available on the Superfund site profile website. 

State partnerships are critical to the Superfund remedial cleanup efforts. They are well situated to 

evaluate what sites should be on the NPL in the first place. Through FY 2017, the EPA and its 

state, tribal, and federal partners completed final remedial assessments at more than 51,000 

potentially contaminated sites, and just as with the sites added to the NPL that was announced 

last week, EPA routinely seeks the state's written concurrence before adding a site to the NPL. 

As you can see, the Superfund Program is hard at work, and at the same time there is a great deal 

of work left to do. Administrator Pruitt has taken several steps over the past year to further 

improve and expedite the process of site remediation and to promote reuse. For example: 

• To promote increased oversight, accountability and consistency in remedy selections, the 

Administrator retained the authority to select Superfund NPL remedies estimated to cost $50 

million or more at sites; 

3 
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• Overall, the Administrator has directed the EPA regional offices to more closely and more 

frequently coordinate with the Administrator's office throughout the NPL process of 

developing and evaluating alternatives and selecting a remedy, particularly at sites with 

remedies estimated to cost $50 million or more; 

• In May, the Administrator established a Superfund Task Force to provide recommendations 

on an expedited timeframe on how the agency can restructure the Superfund cleanup process, 

realign incentives of all involved parties to promote expeditious remediation, reduce the 

burden on cooperating parties, inccntivize parties to remediate sites, encourage private 

investment in cleanups and sites and promote the revitalization of properties across the 

country. 

In July, EPA released the Task Force's report, which provided 42 recommendations to improve 

the Superfund Program. The Administrator issued a directive to implement a number of specific 

actions right away. In December, EPA addressed one of the recommendations and released a list 

of Superfund sites that Administrator Pruitt has targeted for immediate and intense attention. In 

developing this initial list, EPA considered sites that will benefit from the Administrator's direct 

engagement and have identifiable actions to protect human health and the environment. The list 

is designed to spur action at sites where opportunities exist to act quickly and move site cleanup 

and reuse forward. Sites will move on and off the list as appropriate. At times, there may be 

more or fewer sites based on where the Administrator's attention and focus is most needed. 

EPA recently released an initial list of Superfund NPL sites with the greatest expected 

redevelopment and commercial potential. The sites on this list were found to have significant 

redevelopment potential based on previous outside interest, access to transportation corridors, 

4 
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land values, and other critical development drivers. This list is not a complete list of sites in the 

Superfund pipeline with redevelopment potential, and sites will move on and off the list as 

appropriate. EPA remains dedicated to addressing risks at all Superfund sites, not just those on 

these lists. The Administrator has set an expectation for a renewed focus on accelerating work 

and progress at all Superfund sites nationwide. 

CONCLUSION 

We appreciate the Committee's interest in the Superfund Program. Protecting human health and 

the environment by enhancing ongoing cleanup and reuse activities remains among 

Administrator Pruitt's top priorities. Such efforts will always be undertaken in partnership with 

other federal departments and agencies, states, tribes and local communities and in a manner that 

continues to protect human health and the environment. 

5 
15 

Mr. SHIMKUS. I thank the gentleman and now we’ll turn to the 

round of questions and I will start with—recognize myself 5 minutes for the first—for the first member to speak. 

First of all, welcome. We are glad to have you here and, just to 

put this in perspective, a long-time career professional employee 

from the EPA. We appreciate your service, and that gives us a 

pretty good insight into—you have seen a lot over the years. 

So, I want to thank Administrator Pruitt and the EPA for making the Superfund cleanup program a priority. If we don’t have a 

Superfund site in our district we have one close enough and we’ve 

been bedeviled by this process, as you all have been, for decades 

and that’s a frustration that you will hear from members who have 

been on the committee for a long time just how long this takes, the 

cost it takes, the parties involved and those issues. 

Would you please walk us through what you view as the most 

important issues that need to be addressed to make the program 

more effective and more efficient? 

Mr. BREEN. Thank you. 

In fact, we asked ourselves those questions when we put together 

the task force over the summer and developed the 42 recommendations. 

The way the recommendations were developed was by asking 

senior career staff, for the most part, what we should do and we 

all listened as well to outside input. 

But in the end, it was the task force that put the recommendations together and provided it to the administrator in June on 

about the 30-day timeline he’d asked for. 

Then there was interaction with the administrator and then we 

came out with the report as reflected in July. So, I would have to 

say what we would reflect back are what’s in the task force report. 

For one thing, it’s looking for hindrances that can be moved 

aside. Things were put in place for a reason at one time, but that 

time may well have passed. 

We want to focus on demonstrable outcomes like construction 

completion, getting site wide ready for anticipated use. We want 

sites deleted when they can be safely. We want to get the work 

done. 

So I would turn us to those 42 recommendations as what I would 

suggest as the consensus view. 

Mr. SHIMKUS. Thank you. 

The state cleanup programs when I had the history of the Superfund in my opening statement—that’s what I was pulling out—enacted in 1980, the National Priority List in 1983. There are still 

sites on that list that haven’t been remediated, which is, again, I 

think, embarrassing from a national government perspective. 

Having said that, what has evolved and what is different is state 

involvement in cleanup and cleanup actions. Would cleanups be 

more efficient if certain Superfund CERCLA authorities were delegated to the states? 

Mr. BREEN. Thank you. 

So let me start by saying we, at least from our perspective, have 

a very strong relationship with the states and we appreciate it, 

and, in fact, we couldn’t accomplish nearly enough without that 

strong relationship. 

16 

We have a baseline already of many sites not being addressed on 

the Superfund National Priorities List because states are addressing them under state programs, and in many cases we have formal 

agreements to that end and in other cases we have strong working 

relationships that don’t need a formal agreement. 

But there are indeed probably thousands of sites that are not on 

the National Priorities List thanks to strong state programs. In 

order for a site to get on the National Priorities List, our practice 

is to ask states for their concurrence before putting it on the list 

and, indeed, many of the filtering and screening and site assessment work that leads to a site being put on the NPL are actually 

accomplished by state programs. And so, in fact, for one recent 

year, in 2017, we provided $58 million to states in total, both to 

conduct activities on NPL sites and to support state Superfund programs. 

Where states are undertaking work on their own, the statute already provides that states have the same ability that the EPA does 

to recover cost from polluters. And so Superfund is a response statute. It involves men and women working on the ground. We’d be 

ready to talk further about ways we can work together. But I 

wouldn’t want to miss the reality that the strong working relationship is already making a big difference. 

Mr. SHIMKUS. In my short time remaining, does the national contingency plan need to be updated and modernized to more effectively deal with sites that are being cleaned up? 

Mr. BREEN. Thank you. 

We recently amended the hazard ranking system to account for 

subsurface intrusion. This is the TEC, typically, or other halogenated solvents that can move with the water through the ground 

water and then come up into homes and basements. 

We recently amended the hazard ranking system to address that. 

In terms of other NCP amendments, we’d be open to discussion. I 

know it’s not just Superfund but the oil program as well in the 

NCP. 

Mr. SHIMKUS. I want to thank you, and I will now recognize the 

ranking member of the subcommittee, Mr. Tonko, for 5 minutes. 

Mr. TONKO. Thank you, Mr. Chair. 

Mr. Breen, how does the EPA consider concerns from the public, 

from peer agencies, states, and independent scientists in its 5-year 

review determinations? 

Mr. BREEN. There is a formal process for doing a 5-year review 

determination and, as you mentioned, with the Hudson River we 

did a draft and put it out for public comment and we did extensive 

interagency coordination on it, and now we are in that step with 

the final. 

It is the case that we are working hard on this, and I listened 

carefully to what you said and I will, naturally, take that back and 

we’ve had input as well from New York State as well as natural 

resource trustees at the federal level, including. 

So we’ll take that all back. But we have not yet resolved the 5- 

year review. 

Mr. TONKO. And you will factor all of those concerns that the 

state has shared, and others into its final decision? 

Mr. BREEN. Yes, sir. 

17 

Mr. TONKO. I do not believe the site possibly being protected 55 

years from now is deserving of it being granted a current status of 

being complete and protected. 

I would encourage EPA to take another look at the evidence 

gathered by your counterparts in the New York State government 

and other federal agencies. 

One of the goals of the Superfund task force recommendations is 

to engage partners and stakeholders. So, unfortunately, everything 

we have seen from this administration has been contrary to that 

given goal. 

There has been a shocking lack of transparency in both the development of the task force recommendations and the choice of 21 

targeted sites. Given that lack of transparency, it is especially 

problematic that we do not have the Agency’s political leadership 

here today to testify. 

Mr. Breen, how were the members of the Superfund task force 

chosen? 

Mr. BREEN. For the most part, they are overwhelmingly career 

members of the EPA whose assignments—they are mostly senior, 

very senior members—whose assignments bring them into the kind 

of work that the task force has undertaken. 

There wasn’t a formal sort of filter where only some people could 

be on. I was on some of the phone calls and it seemed to be a considerable matter of people’s work making them the natural choice 

to be on. 

Mr. TONKO. OK. Now, for the next questions I would appreciate 

a yes or no answer. 

Administrator Pruitt noted that stakeholder partners contributed 

to the task force report. Did the task force comply with the requirements of the Federal Advisory Committee Act? 

Mr. BREEN. To the best of my knowledge, the answer is yes. 

Mr. TONKO. Were task force members announced in the Federal 

Register or at least on the Agency’s website? 

Mr. BREEN. There is a list posted. I don’t think it’s on the Agency’s website but I would have to check on that. 

But I want to be clear, this is an internal group, not an external 

federal advisory committee. 

Mr. TONKO. Right. But, again, were they listed in the register? 

Mr. BREEN. No, I don’t believe so. 

Mr. TONKO. Did the task force hold public meetings? 

Mr. BREEN. No. 

Mr. TONKO. Did the task force publish proposed recommendations for public comment and other responses to public comments? 

Mr. BREEN. So I understand you want a yes and no. 

The task force report itself, which we published in July, is intending to be a living document and we would be grateful for input 

on it. 

Mr. TONKO. So did they publish proposed recommendations for 

public comment? 

Mr. BREEN. Not before July of 2017. 

Mr. TONKO. OK. Did the task force maintain and publish records 

of its meetings and process? 

Mr. BREEN. So, again—— 

Mr. TONKO. Yes or no on that one. 

18 

Mr. BREEN. I understand, sir. 

Again, the task force isn’t a freestanding body. It’s a group of 

people who work together and—— 

Mr. TONKO. Right. But do they maintain and publish records of 

their meetings and process? 

Mr. BREEN. We have not published records. 

Mr. TONKO. OK. This is disappointing and, frankly, counterproductive. 

Transparency can go a long way to building trust and community 

support for Superfund activities, which is essential for effective 

cleanups. 

Let’s move on to the list of 21 targeted sites announced on December 8. Again, yes or no answers, please. 

Did EPA develop a formalized methodology for selecting sites? 

Mr. BREEN. You’re asking did EPA acknowledge—— 

Mr. TONKO. Did they develop a formalized methodology for selecting sites? 

Mr. BREEN. We have an objective for what we were looking for 

in the list of sites. 

Mr. TONKO. But no formalized methodology? 

Mr. BREEN. Well, I would say there was a methodology. We 

asked the regions for candidates. We understood what that objective was, which I can tell you, and then the regions came in with 

sites. 

There was discussion about it and then finally a list was given 

to the administrator. 

Mr. TONKO. OK. Let’s move on. Did EPA hold public meetings or 

solicit public recommendations for sites to be included on the list? 

Mr. BREEN. So a number of times, I have to say, we asked people 

what should be included. But I don’t think we held a public meeting—— 

Mr. TONKO. OK. 

Mr. BREEN [continuing]. Specifically on that topic. 

Mr. TONKO. OK. Did EPA publish a proposed list for public comment? 

Mr. BREEN. No. 

Mr. TONKO. Did EPA confer with stakeholders at sites before 

they were listed including the formal community advisory groups? 

Mr. BREEN. So we did not ask the regions to formally go out to 

the community advisory groups. But in asking the regions what 

sites to put on the list, regions may usefully have taken into account what they thought would be the public—— 

Mr. TONKO. All right. Has EPA met with stakeholders at the listed sites since they were listed to explain the consequences of listing? 

Mr. BREEN. I would have to check on that on a site by site basis 

and get back to you. 

Mr. SHIMKUS. OK. The chair has been very patient. The chair 

now will reclaim the time and yield to the gentleman from West 

Virginia, Mr. McKinley. 

Mr. MCKINLEY. Thank you, Mr. Chairman, and thank you, Mr. 

Breen, for appearing here today. 

I was impressed with how quickly you were able to put together 

these recommendations because apparently the charge was put in 

19 

May and by July they had 42 recommendations. Given the work 

output in Washington, that’s a dynamic thing to be able to accomplish—42 recommendations in 2 months, to come up with it. And 

I was particularly impressed with one component of it. It was I 

think recommendation 23 and 28 perhaps. Had to do with comfort 

letters. 

Having come from the engineering practice and working on some 

of these Superfund sites and other Brownfield locations, owners 

desperately want to understand whether or not this site is clean. 

And I don’t know whether people have been able to read yet the 

recommendations that you had. But one of the comfort levels that 

in the past is pretty illuminating in that here it is at the conclusion, a typical comfort level it says this letter—this is coming from 

the EPA—‘‘This letter is provided solely for informational purposes.’’ An owner is trying to find out, or a prospective buyer, is 

this site clean. 

And so the government gets back to them in a bureaucratic fashion by saying this letter is provided solely for informational purposes and is not otherwise intended to limit or affect the EPA’s authority under CERCLA or provide a release from CERCLA liability. 

There is no comfort. 

So I am curious now. How much progress have you made since 

July when this report came out that you might be able to have 

something on a comfort level that actually does give comfort and 

support for someone? 

Mr. BREEN. Thanks, Mr. McKinley. 

So we do intend to come out with a quarterly progress report 

starting soon that would have recommendation by recommendation—our approach. 

What I would like to do is offer a briefing for you and your staff 

on where we are on that particular recommendation in particular 

without waiting for the quarterly report. We’ll get back to you with 

some specifics. 

Mr. MCKINLEY. OK, if you could. 

The other is I am trying to understand the driving factor that 

puts these sites—— 

Mr. BREEN. Yes. 

Mr. MCKINLEY. Is it bankruptcies? If a company declares bankruptcy, it seems to be unclear whether or not they can shed their 

liability in a bankruptcy. 

What causes a site to be transferred from a corporation or a business over to the federal government to clean it up? What would be 

an example? 

Mr. BREEN. So a site could be on the national Superfund priority 

list with a bankruptcy situation or without—either one. Bankruptcy would be an important marker that there are not enough 

assets in the corporation in order for the enforcement part of the 

Superfund program to seek cost recovery. 

Mr. MCKINLEY. But couldn’t we go back personally on the stockholders or someone? Why has this become a way to shed responsibilities of corporations to the Federal Government? 

Mr. BREEN. So there are lawyers at the Justice Department who 

do this 12 hours a day. I would probably do best to get you one of 

the environmental bankruptcy lawyers at the Justice Department. 

20 

Mr. MCKINLEY. Yes. I would like to hear back from someone 

what would be some suggested legislation that we might be able to 

do to make sure they can’t shed this, because we’ve had enough 

problems around here with corporations shedding their pension responsibilities, and I don’t like the idea of them also shedding their 

environmental liabilities as well. So—— 

Mr. BREEN. Thank you. 

Mr. MCKINLEY [continuing]. Is there anything else that—there 

was another question. If it’s taking 5 years to come up with a plan, 

what can we do from Congress to speed up this process—that after 

we’ve identified it, why would it take 5 years to come up with a 

remedial process when EPA has demonstrated that within 2 

months they can come up with 42 suggestions? 

Mr. BREEN. So we don’t want it to take long either. That’s why 

we come to work every day is to get it cleaned up. 

The truth is we don’t pick the worst sites. The worst sites get— 

what I mean to say is we pick the worst sites. We didn’t make 

them. So they’re on our list precisely because they’re hard and difficult. 

So sometimes to do it right does take time. But we want to go 

faster, too. 

Mr. MCKINLEY. OK. I yield back. 

Mr. SHIMKUS. Gentleman yields back his time. The chair now 

recognizes the ranking member of the full committee, Mr. Pallone, 

for 5 minutes. 

Mr. PALLONE. Thank you, Mr. Chairman. 

Obviously, I wanted to use my time today to ask Albert Kelly, 

the controversial political appointee who’s been put in charge of the 

Superfund program, to explain to the American people exactly 

what he did to get barred for life from the banking industry. 

But, unfortunately, he backed out, probably because he doesn’t 

want to answer these questions, and like my colleague from New 

York, Mr. Tonko, I find this lack of transparency unacceptable and 

I am also concerned that my Republican colleagues on the committee continue to enable this lack of transparency because they 

don’t insist on his being here or do other things to try to get him 

here. 

So I am going to have to turn to Mr. Breen because he’s the only 

witness. Mr. Breen, can you explain to the American people what 

exactly Mr. Kelly did to get barred for life from the banking industry? 

Mr. BREEN. I understand that Mr. Kelly elected to settle a matter with the FDIC. He suggested I pass on to you that he is fully 

willing to discuss this matter. 

Mr. PALLONE. Well, I would hope then that, as I said before, Mr. 

Chairman, that we can get him back for another hearing—bring 

him in here to testify because I think he’s the only one that can 

really answer the question. 

But I appreciate the fact that he’s willing to come back and I 

would hope that that would mean that you would be willing to 

bring him back because, this really is a matter that relates, I 

think, to the long-term solvency of the Superfund program. 

21 

Now, since 1983, EPA has relied on the National Priorities List 

to identify and target the Superfund sites that present the greatest 

threat to human health and the environment. 

In December, EPA introduced a new list of sites that would be 

targeted for immediate intense action. That list is not based on risk 

to human health or the environment, meaning that some of the 

most dangerous Superfund sites are not being targeted ‘‘for immediate intense action.’’ 

Then yesterday EPA published yet another new list of sites, the 

sites that EPA believes have the greatest potential for redevelopment. 

This list is also not based on risk to human health or the environment and suddenly one list has become three, and I think the 

public is understandably confused. 

So, Mr. Breen, am I correct that neither of these new lists targets the sites that present the greatest risk to human health and 

the environment? 

Mr. BREEN. The answer is yes. I want to thank you, Mr. Pallone, 

for your personal support and interest over the years. 

Mr. PALLONE. Well, I appreciate that. 

Isn’t the mission of EPA and the Superfund program to protect 

human health and the environment? Isn’t that the reason? 

Mr. BREEN. That’s right. So the National Priorities List is risk 

based. These are units within the NPL that we use to say these 

need the administrator’s attention and—— 

Mr. PALLONE. OK. 

Mr. BREEN [continuing]. These others are available for redevelopment to bring money and jobs to the site even while we are addressing risk. 

Mr. PALLONE. No, I understand that. 

But we’ve heard a great deal about how Administrator Pruitt is 

attempting to focus on the core mission of the Agency. So, to me, 

it’s kind of alarming to see that these actions seem to focus the 

EPA attention away from the riskier sites. 

Mr. Breen, is EPA still committed to cleaning up the sites that 

pose the greatest risk to human health and the environment? 

Mr. BREEN. Yes. 

Mr. PALLONE. OK. And even if those sites don’t appear on either 

of these new lists that’s still true? 

Mr. BREEN. Yes. 

Mr. PALLONE. OK. But, again, it’s kind of ridiculous that I have 

to ask you these questions. But EPA’s recent actions, in my opinion, have called into question whether the Agency is still focused 

on the most dangerous sites. 

I’ve heard from communities in my district that are threatened 

by these sites and the sites that weren’t included on the new list 

and they don’t know what it means. 

So does EPA have plans to reach out to those communities to reassure them that their cleanups are still a priority even though 

they’re not on these new lists? 

Mr. BREEN. You have marked for us work we need to do. We are 

not moving away from cleaning up all the sites and, for that matter, the riskiest sites get a very high priority. 

22 

Mr. PALLONE. All right. You seem to be saying but I am going 

to ask you more specifically—can you say right now to reassure 

these communities that their sites will still get funding, still get 

EPA attention, and still get health protective cleanups—that that’s 

the goal? 

Mr. BREEN. Yes, sir. The one thing I have to worry about is funding, as do you all. 

Mr. PALLONE. OK. Well, again, you know, when we talk about 

funding, myself and many Democrats on this committee have, you 

know, introduced legislation to try to reinstitute the trust fund and 

reinstitute, you know, the tax on the oil and chemical industry that 

will provide more funding so we don’t have to rely on the general 

revenue. 

But we haven’t been able to get the Republicans to do that, and 

I go back to when Newt Gingrich was the Speaker and it expired 

because he didn’t want to do it. 

So, again, I am just concerned that many endangered communities are being ignored, even as Administrator Pruitt declares the 

Superfund to be his top priority. 

But thank you, Mr. Chairman. 

Mr. SHIMKUS. The gentleman yields back his time. The chair now 

recognizes the gentleman from Texas, Mr. Olson, for 5 minutes. 

Mr. OLSON. I thank the chair, and welcome, Mr. Breen. 

As you know, Texas has more than its fair share of Superfund 

sites. One site that is causing the most concern in Texas-22, as you 

mentioned earlier, is the San Jacinto River Waste Pits. 

Waste from paper manufacturing has been stored in hardened 

caps at the bottom of the San Jacinto River for about 40 years. 

Hurricane Harvey, bringing down 60 inches of rain in some places, 

overwhelmed those caps and cancer-causing dioxin was released. 

One EPA estimate of the release measured 70,000 nanograms per 

kilogram. The cleanup threshold is 30 nanograms per kilogram. 

That’s the same chemical in natural forces that started the Superfund in Love Canal. 

We’d like to thank you and Mr. Pruitt for committing to remove 

all of that waste—not just recap it but remove it from threat. You 

also mentioned emergency response in your testimony. You said 

that you have to deal with 30,000 release notifications each year. 

Some of those are really important. Some not as important. 

My question is, how do you determine when it’s appropriate for 

you to step in in an emergency or when should you let that go to 

the states and locals to take care of some contamination? 

Mr. BREEN. Thank you. 

There’s a very well-practiced protocol for that. The calls go to one 

central place, the National Response Center, which is operated by 

the U.S. Coast Guard. 

They get, as I said, about 30,000 calls a year. It’s a 24-hour line. 

There are people on duty all the time, and as well there are 10 

EPA regional emergency operation centers and one EPA headquarters emergency operation center. As calls come in, the watch 

officer at the Coast Guard national response center is making some 

on-the-spot decisions about who to tell and, as I said, probably 99 

percent of the time it’s the local fire department or the state 

hazmat unit, and that’s as it should be. 

23 

These are the people who are closest geographically anyway and 

they know the communities the best. But frequently they ask us 

to come in and then we come in right alongside beside. 

Mr. OLSON. Thank you. 

Now, do you have the resources you need to address these calls 

to do what you have to do by law? 

Mr. BREEN. There’s considerable work sharing between us and 

the states and local governments, and what’s really happening very 

often is that professionals are deciding among themselves who’s 

closest to the site, who can get there fastest, who’s got the equipment and the people with advanced degrees to know what are the 

gases being released, what are the constituents going into the 

water. 

Mr. OLSON. So it sounds like you’re OK. You could probably use 

more but you got what you need right now. 

Mr. BREEN. We will work with whatever you give us. 

Mr. OLSON. Well, thank you. 

I would like to also talk about responsible parties and how we 

tackle some other sites like the San Jacinto River Waste Pits. In 

that case, we have three class action lawsuits out there right now 

with at least three defendants, none of whom were actually involved in the waste storage when it happened. 

And so we are trying to find out the responsible party. Can you 

talk about how we can determine who is the responsible party and 

what’s the process for getting them to the table earlier rather than 

later? 

Mr. BREEN. I can speak in general terms. Given the litigation, 

I probably ought to be careful not to speak in particular terms 

about this site and this set of potentially responsible parties. 

In general terms, Congress sets who is a potentially responsible 

party—present owners and operators, owners and operators at the 

time of disposal, those who arranged for the hazardous substance 

to be put at the site, and those who transported it there. 

There’s a PRP search typically early in a site’s development, and 

while the engineers are doing site evaluation and remedial investigations, the enforcement program is seeing who could ultimately 

be brought to the table. 

There are notice general and special notice letters that go out. 

But that’s not the end of the story. We continue to look for potentially responsible parties. 

Ultimately, we’ll pick those who we think both have responsibility and the assets to pursue. 

Mr. OLSON. Well, thank you. Those are my questions. I would 

like to also congratulate you and Chairman Shimkus because for 

the first time in 15 years you all have beaten my Navy-Army at 

football. Congratulations. 

[Laughter.] 

I yield back. 

Mr. SHIMKUS. I think we are 2–0 right now. 

So the chair now recognizes the gentleman from California, Dr. 

Ruiz, for 5 minutes. 

Mr. RUIZ. Thank you, Mr. Chairman. 

Since 1980, the Superfund program has cleaned up hazardous 

sites and helped corporations such as landfill operators, chemical 

24 

companies, and manufacturers—hold them accountable for polluting communities across the country. 

In May, Administrator Pruitt announced the creation of a Superfund task force that would prioritize and streamline procedures for 

remediating more than 1,300 sites. 

While it would be appropriate for this committee to hold public 

hearings on potential updates to the Superfund program and how 

to ensure necessary cleanups are not delayed, Administrator Pruitt’s unilateral decision to streamline the process raises some serious transparency concerns. 

Which procedure specifically is the task force streamlining? 

Meaningful consultation with affected tribes are required by Executive Order 13175? The scientific evaluation scoring of sites based 

on the severity of the contamination? The prioritization of the most 

contaminated sites for limited federal cleanup funds? 

The American public and this committee are all wondering which 

specific proposals Administrator Pruitt unilaterally decided to 

streamline and I hope today’s hearing will shed some light. 

Since I came to Congress I have heard horror stories about the 

pollution and contamination of tribal lands or near tribal lands 

that tribes rely on that our government turned a blind eye toward 

for decades. 

Two years ago, I convened a round table discussion to hear from 

tribal leaders across the Nation and learned more about the environmental injustices they have dealt with and continue to face with 

federal agencies. 

One tribe in particular, the St. Regis Mohawk in New York, 

raised concerns with the EPA’s effectiveness in mitigating the impacts of two Superfund sites located directly upstream and upwind 

from where the tribes draw their drinking water. Although consulted, the EPA disregarded the St. Regis Mohawk’s input on the 

level of remediation required at each site. Later, testing revealed 

elevated levels of pollution in fish from nearby water sources that 

the tribe relies on for their economy and their consumption. 

Living in close proximity to environmental hazards yet not being 

meaningfully consulted in the government’s mitigation planning 

threatens the health and well-being of tribal members who rely on 

resources like rivers for survival. 

That’s why I, along with Ranking Member Pallone, Ranking 

Member Grijalva, and 24 other members of Congress asked the 

Government Accountability Office to prepare an investigative report on the adequacy of federal policies that protect tribal lands 

and recommendations for how the policies can be improved. 

GAO has since initiated the study and I look forward to seeing 

the results and identifying how we can improve the way our government works with tribal governments, not walk away from our 

responsibility. 

Now is not the time to stop this momentum and push environmental injustices back into the shadows. The flagrant lack of transparency surrounding the task force selection of sites coupled with 

the failure to uphold any public meetings confirms that the task 

force is a step perhaps in the wrong direction. 

We have a duty to ensure that the families living in these communities and disproportionately suffering from exposure to pollutVerDate Nov 24 2008 12:32 Jan 10, 2019 Jkt 037690 PO 00000 Frm 00028 Fmt 6633 Sfmt 6633 I:\MY DOCS\HEARINGS 115\HEARINGS\115-92 CHRIS
25 

ants emanating from these Superfund sites are being meaningfully 

engaged in the remediation process so that they can enjoy a cleaner 

and safer outdoor environment to work, play, and raise their families. 

Mr. Breen, since the last task force failed to generate a record 

of its deliberations, I am troubled by the lack of transparency and 

whether affected communities were meaningfully consulted. 

So what specific procedures did the task force follow to meaningfully consult with affected tribes and communities living near toxic 

sites during the selection process of the 21 sites recommended for 

immediate intense action? 

Mr. BREEN. Thank you very much. 

We completely agree that our relations with tribal governments 

are of high importance. This is a government-to-government relationship and the many cases there are—— 

Mr. RUIZ. I have heard that for so many years. But the actions 

speak louder than words, and the actions do not show that. 

So what have you actually done to consult with tribes? 

Mr. BREEN. I will address that. I just didn’t want to let it go unsaid. 

Mr. RUIZ. I only have 47 seconds left and it seems like you’re 

stalling. So what actions—— 

Mr. BREEN. I am definitely not stalling. 

Mr. RUIZ [continuing]. Have you done to meaningfully implement 

meaningful consultation with tribes? 

Mr. BREEN. Of the 21 sites that we identified for the administrator’s immediate and intense attention in our data system, 8 of the 

21 are identified as having Native American interest. 

Mr. RUIZ. That’s not meaningful consultation. That’s what I’ve 

heard over and over again where they have Native American interest or they invite a Native American to a room just to check a box. 

That is not meaningful consultation where you take their considerations, their concerns, and actually implement with them at the 

table. 

This is exactly what went wrong with the St. Regis Mohawk 

problem with the contamination of the rivers. They went to a meeting. They checked the box. They weren’t listened to. Nothing was 

implemented, and now they have a problem. 

I yield back my time. 

Mr. SHIMKUS. I thank the gentleman. The gentleman yields back 

his time. 

The chair now recognizes the gentleman from Georgia, Mr. Carter, for 5 minutes. 

Mr. CARTER. Thank you, Mr. Chairman. 

Mr. Breen, thank you for being here. Appreciate your indulgence 

with us. I am over here. Hello. 

Mr. BREEN. I am sorry. I am looking at—— 

Mr. CARTER. OK. Thank you. Appreciate it. 

Mr. BREEN. I was getting out my right sheet of paper. 

Mr. CARTER. That’s OK. That’s OK. 

Mr. Breen, I was just wondering, in 1996 do you remember what 

you were doing? Were you with the Agency then or—— 

Mr. BREEN. I was. 

Mr. CARTER. You were? 

26 

Mr. BREEN. Yes. 

Mr. CARTER. OK. That’s a long time ago, right? 1996, yes. 

In 1996, the LCP chemical site in Brunswick, Georgia, was put 

on the National Priorities List, in 1996. Twenty years later in 2016 

a settlement was announced. But we still don’t have funding. The 

funding still hasn’t materialized. 

Seriously? Dumb it down for me. Tell me what’s going on here. 

I mean, seriously. 

Mr. BREEN. The reason I was looking for my sheet of paper was 

to get some facts. But on the question of why not funding, I don’t 

have that and I will commit to getting you that. 

Mr. CARTER. We got a settlement in 2016 and we don’t expect 

funding for years to come, and this is something that happened in 

1996. 

Mr. BREEN. Right. I will commit to getting you more information 

on that. 

Mr. CARTER. OK, and I appreciate that. I sincerely do. 

Why did it take so long? 

Mr. BREEN. I am going to have to just get you more on the site 

in general for that as well. 

I can tell you some things but I can’t tell you that. 

Mr. CARTER. Let me ask you, just in general why do these claims 

take so long? Is the EPA doing the work or is the DOJ doing the 

work? Who is responsible here? 

Mr. BREEN. So I can help with that. So the remedy selection and 

the remedy design and the construction is an EPA responsibility. 

Often, we are doing it with the state, but it is an EPA responsibility. 

Pursuing the potentially responsible parties is a Justice Department lead in courtroom matters, always with an EPA strong participation. 

Mr. CARTER. So the EPA does have a say in these settlements. 

Mr. BREEN. Yes. 

Mr. CARTER. In these type of settlements, they have a say and 

they’re divided up and they provide direction on funds outside of 

the direct remediation. EPA has that authority and has that ability. 

Mr. BREEN. Yes. 

Mr. CARTER. So is the EPA able to usher these claims along? 

Mr. BREEN. Which claims? 

Mr. CARTER. These claims, such as this, with the one that I am 

stating here with the LPC chemical site in Brunswick? 

Mr. BREEN. Sure. So where there’s a potentially responsible 

party, EPA would be doing the site investigation that would lead 

to the referral to the Justice Department. 

Mr. CARTER. OK. Earlier, you talked about the 42 recommendations that were outlined in the Superfund task force report and one 

aspect of these sites is that it’s taken so long to remediate. 

The administration’s top ten list—has it materialized and has 

that been set yet? 

Mr. BREEN. Thank you. 

When we did the task force report, we envisioned a top ten list. 

It turns out that we thought there was more progress we could 

make than just at 10 sites. 

27 

So what we thought was going to be 10 turned out to be 21 and 

that’s the list that we produced last month. 

Mr. CARTER. So what started out as 10 turned out to be 21? 

Mr. BREEN. Yes. 

Mr. CARTER. Right. You mentioned about state involvement and 

about task force report, and in the task force report it describes the 

importance of third party investments. 

Can you elaborate on that just a little? 

Mr. BREEN. Sure. So there are hundreds of sites that are in productive reuse, and often that’s taking the work from mere clean to 

actually useable and the use of private investment for that is a 

strong possibility. 

Mr. CARTER. Do you see any alternative methods or approaches 

to financing site cleanups? 

Mr. BREEN. I think there probably are things we could be thinking about. 

Mr. CARTER. Any examples? 

Mr. BREEN. Sure. I think the Brownfields program gives us some 

examples we could look toward and understand better and learn 

from. 

Mr. CARTER. OK. 

Mr. Breen, I am not trying to give you a hard time. But I am 

the one who has to go back to my district and answer these people 

and they want to know, 20 years, seriously? And yet, we got a settlement where we still haven’t had any financial relief whatsoever. 

What am I supposed to tell them? 

Mr. BREEN. Well, we’d like to sit down with you and walk you 

through it so you have that information. 

Mr. CARTER. OK. All right. I hope it will be within the next 20 

years. I mean, seriously. 

Mr. SHIMKUS. If the gentleman would yield. I know he’s about 

ready—not much time. But if and when you have that meeting I 

would like to attend. I think it’s a budgetary issue. I think it’s a 

funding issue and I think there’s a deeper answer—question to this 

answer. 

Mr. CARTER. Right. Thank you very much, and I yield. 

Mr. SHIMKUS. Gentleman’s time has expired. 

The chair now recognizes the gentleman from Texas, Mr. Green, 

for 5 minutes. 

Mr. GREEN. Thank you, Mr. Chairman and Ranking Member, for 

holding today’s hearing. 

A strong and well-funded Superfund program is necessary to ensure the toxic sites in Texas and throughout the United States are 

cleaned up. 

Mr. Breen, thank you for joining us today at our hearing. I have 

a district in Houston, Texas, and Texas was hard hit by Hurricane 

Harvey in August. It destroyed houses, schools, businesses along 

the Texas Gulf Coast. 

A major concern from our community during Hurricane Harvey 

was the status of the nearly two dozen Superfund sites in and 

around the Houston area. The major one was the San Jacinto River 

Waste Pits, and I want to thank EPA and the administrator for 

being there right after the water subsided and visiting that site 

and also making the decision that they will be cleaned up. 

28 

Of course, we have a responsible party with that facility. One of 

the things I kept hearing—because we did have a fire that’s just 

east of my area—is there a national toll-free number that can people call at the EPA on some tragedy or something like that to get 

information or—— 

Mr. BREEN. Well, there is a national number for calling and reporting a release. In terms of getting information, we would, I 

think, probably hope those calls get routed to the people in the regions who are closest to it rather than handling them back—— 

Mr. GREEN. Yes. Well, in our Region Six—like I said, on this one, 

but because of where we are located and our industries we have 

a significant number of Superfund sites. 

Is there a team that’s ready to be deployed at sites immediately 

after a national disaster? 

Mr. BREEN. Yes. We have about 200 to 250 on-scene coordinators. 

These are men and women who, as they say, sleep with their boots 

by their beds and there is at all times someone who is on call ready 

to go. 

Mr. GREEN. OK. Because we did have some tragedies at some of 

our facilities after that. 

One of the hallmarks of Superfund is a ‘‘polluter pays’’ principle, 

which holds polluters liable for the cleanup of toxic substances. 

Last month, Administrator Pruitt came before our committee and 

I asked Administrator Pruitt about the ‘‘orphaned’’ Superfund sites 

that do not have identifiable responsible parties, or PRP. 

I would like to follow up on the questions. How many ‘‘orphaned’’ 

sites are listed on the National Priorities List? Do you have a number? 

Mr. BREEN. And I wondered about that, too, when your staff 

mentioned you would ask. 

I don’t have a specific number. I can tell you we usually approximate that at the remedial actions the responsible parties are performing the work about 60 to 70 percent of the time. 

But even at the remaining 30 to 40 percent, it’s often the case 

that there are people we can go after. But we don’t want to wait 

to make them do it. So we are doing it ourselves and we’ll get reimbursed. 

So I don’t know how many ‘‘orphaned’’ sites there are. 

Mr. GREEN. I hope that reimbursement works. 

Mr. BREEN. Yes. We hope so, too. So but it usually does and we’ll 

commit to getting you as best a number as we can. 

Mr. GREEN. OK. And so my second question is does the taxpayer 

pay for the cleanup in those cases on an ‘‘orphan?’’ But you’re still 

going after somebody who may be the responsible party. 

Mr. BREEN. That’s right. If it’s a truly ‘‘orphaned’’ site then 

there’s nothing else but the federal government. But even at sites 

where there are PRPs not doing the work, we will seek cost of recovery if we think we can get the money. 

Mr. GREEN. The appropriations process, the money for the Superfund trust fund, did EPA request a funding increase for the Superfund for this current year do you know of? 

Mr. BREEN. I think the president’s budget does not. 

29 

Mr. GREEN. OK. Was there a proposed cut in the Superfund? I 

haven’t looked at the president’s budget. We are not on appropriations so we don’t carry it around with us. 

Mr. BREEN. I think the president’s budget showed a reflection of 

less money. But as I said, we’ll work with whatever you give us. 

Mr. GREEN. In the Obama administration, 61 sites, or Superfund 

sites, were removed from the NPL including 12 toxic sites in 2014 

alone. 

Can the administrator set an expectation for accelerating work 

in progress on all these Superfunds nationwide when EPA is recommending the sharpest budget cuts in the Nation’s history, or the 

Agency’s history, in eliminating 4,000 positions. 

Of course, the president’s budget—and we appropriate the 

money—someday we’ll have an appropriations bill maybe, but I 

hope that EPA seriously reexamines it budget request for 2019 that 

will fully protect what in our area is human life and environment 

in a very urban area but also a very industrialized area in the 

upper Texas coast. 

I want to thank you, Mr. Chairman, for the time. 

Mr. SHIMKUS. Gentleman’s time is expired. 

The chair now recognizes the gentleman from Texas, Mr. Barton, 

for 5 minutes. 

Mr. BARTON. Thank you, Mr. Chairman and Mr. Tonko, for holding this hearing. 

Mr. Breen, we appreciate you being here. I’ve looked at your limited bio that we are presented and it’s unbelievably positively impressive. Princeton, Harvard Law, active Army, Justice Department criminal division, and that’s all before you went to the EPA. 

That’s impressive. It really is. 

How long have you actually been at the EPA? 

Mr. BREEN. About 25 years. 

Mr. BARTON. Twenty-five years. So you—that would be ’93? 

Mr. BREEN. It was toward the end of 1992. 

Mr. BARTON. 1992. OK. So 1992, first Bush was president. 

Mr. BREEN. Right. 

Mr. BARTON. Did you go into the EPA as a civil service or as a 

political? 

Mr. BREEN. Civil service. 

Mr. BARTON. Civil service. So your career has been in the civil 

service? 

Mr. BREEN. Yes. 

Mr. BARTON. Do you have at present at EPA a political appointee 

above you other than Administrator Pruitt? 

Mr. BREEN. No. 

Mr. BARTON. No. Has there been someone who has been sent to 

the Senate? 

Mr. BREEN. No. 

Mr. BARTON. Is there anybody under consideration? 

Mr. BREEN. That I—— 

Mr. BARTON. You don’t know. 

Mr. BREEN. I would have to defer on. 

Mr. BARTON. So for the time being, you’re the man. Is that fair 

to say? 

30 

Mr. BREEN. I am the national program manager for the Superfund program. 

Mr. BARTON. In Texas we’d say you’re the man. Yes. 

[Laughter.] 

Just out of curiosity, does the name Jan Gerro strike a bell with 

you? 

Mr. BREEN. It does, but I—— 

Mr. BARTON. She’s my sister. She is an environmental enforcement attorney for Region Six EPA in Dallas. 

Mr. BREEN. Congratulations. 

Mr. BARTON. And is reputed to be a holy terror. 

[Laughter.] 

Mr. BREEN. I will take that back. 

Mr. BARTON. I don’t normally admit to that up here in Washington, since I am a conservative Republican. But she goes at them. 

She goes and gets them. 

Mr. BREEN. Thank you. 

Mr. BARTON. Has almost a 100 percent conviction rate, at least 

that’s what she tells me. 

Our Congressman Carter from Georgia was just, rightfully so, 

complaining about Superfund site in his district that apparently 

nothing has been done on in 22 years. 

Can you tell me how many Superfund sites have actually been 

cleaned up in the history of the program? 

Mr. BREEN. Yes, and I ought to get you the exact number. 

Cleanup is a term that really occurs in stages. So we have deleted hundreds from the National Priorities List. But even before 

a site is deleted it can be ready for anticipated use and we have 

hundreds more ready for anticipated use. 

And even sometimes cleanup is when is the construction complete, even if the public isn’t ready to use it yet, and we have even 

more yet. 

So I will get you specific numbers on all of the—— 

Mr. BARTON. Just kind of a ballpark number. Seven or 800? 

Mr. BREEN. For construction completion, I think we are higher 

than that. 

Mr. BARTON. OK. Now, the staff briefing says that there are 

1,341 sites that are still listed. 

Mr. BREEN. Right. 

Mr. BARTON. Do you agree with that number? 

Mr. BREEN. If the question is whether it includes the list we just 

put out a few weeks ago so I could—— 

Mr. BARTON. For debating purposes—— 

[Simultaneous speaking.] 

Mr. BREEN. Yes. 

Mr. BARTON. What’s a reasonable number for Congress to expect 

of the existing sites to be cleaned up per year? 

Mr. BREEN. How many? 

Mr. BARTON. Yes. Ten per year? Twelve per year? 

Mr. BREEN. So we will make projections in our budget forecast 

that we’ll give you in a week and a half for what we would project 

to do. I would probably be best to wait to get you those numbers. 

Mr. BARTON. OK. But, I mean, is it reasonable for the Congress 

to expect double digit sites per year to be cleaned up? 

31 

Mr. BREEN. Yes, for construction completions I think so. How 

many double digits, whether it’s 10 or 30 or whatever, I am going 

to wait. 

Mr. BARTON. Now, and our chairman alluded to this, is the primary reason we don’t have more progress on sites like Congressman Carter’s because we just don’t have the funding? Is that the 

primary reason? Or is it the complexity and the technical issues involved with the actual cleanup? 

Mr. BREEN. It’s a mix. We think—we think there are things we 

can do and that we are undertaking to be more efficient and we 

are going to push hard on those. 

In the end, though, there may be sites that still we can’t get to 

and that’s been the case for years. For probably every year but one 

out of the last, say, 10 or 15 there are sites we haven’t gotten to. 

Mr. BARTON. OK. Well, my time is expired. But we do appreciate 

your service and I think we’ve got a bipartisan agreement on the 

subcommittee that we need to modernize the Superfund process. 

But we also need to fund it if it’s a funding issue. We need to 

clean these sites up. I mean, you know, Congressman Carter’s got 

a very legitimate issue. When this sites’ been on the list for 22 

years and it doesn’t appear that anything has been done—— 

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

Mr. BARTON. I yield back. 

Mr. SHIMKUS. Gentleman yields back. The chair now recognizes 

our own holy terror from the State of Colorado, Ms. DeGette, for 

5 minutes. 

[Laughter.] 

Ms. DEGETTE. Thank you so much for that vote of confidence, 

Mr. Chairman. 

Mr. BARTON. Holy terror is a compliment. 

Ms. DEGETTE. All right. From you, probably. 

So, Mr. Breen, Congressman Carter—in your conversation with 

him you talked about the potential of using Brownfields money for 

Remediation. But, of course, we are prohibited from using 

Brownfields money, yes or no? 

Mr. BREEN. I didn’t mean to suggest Brownfields money. 

Ms. DEGETTE. OK. Yes. Yes. We are prohibited from using 

Brownfields money for Superfund cleanup, right? 

Mr. BREEN. Yes. 

Ms. DEGETTE. And, in fact, the whole idea of Brownfields is very 

different from Superfund, right? 

Mr. BREEN. Not necessarily. 

Ms. DEGETTE. You wouldn’t want to take all the Brownfields 

money and use that for Superfund? 

Mr. BREEN. We wouldn’t want to do that. 

Ms. DEGETTE. Thank you. 

Now, I want to ask you a couple of other questions. You told Mr. 

Tonko that there’s a list of the members of the task force. Is that 

right? 

Mr. BREEN. Yes. 

Ms. DEGETTE. Can we get a copy of that list? 

Mr. BREEN. Yes. 

Ms. DEGETTE. Thank you so much. 

Now, do we have records of when the task force met? 

32 

Mr. BREEN. What we have are a hundred people’s meeting notes 

that they took from the meetings that—— 

Ms. DEGETTE. But do we have actual records of when the meetings were? 

Mr. BREEN. I would have to check. 

Ms. DEGETTE. If you have them can we get a copy of that, too? 

And were there minutes of what was requested at those meetings? 

Mr. BREEN. Not to my knowledge. 

Ms. DEGETTE. Just the notes of the—— 

Mr. BREEN. Of individuals. 

Ms. DEGETTE. OK. Now, in your experience, is it a normal practice at the EPA for a task force to develop a report with nor written 

records? 

Mr. BREEN. It’s not the case that we have no written records. 

Ms. DEGETTE. Well, OK. Let me ask you this then. 

Is it the practice for a task force to meet and to have no minutes 

or other records of what was discussed? 

Mr. BREEN. Minutes would be pretty unusual. Other records is 

kind of the same situation as—— 

Ms. DEGETTE. Do we have other records of the task force? 

Mr. BREEN. Sure. 

Ms. DEGETTE. OK. Can we get a copy of those? 

Mr. BREEN. I will have to turn that over to the people who actually manage—— 

Ms. DEGETTE. But you don’t have an objection? 

Mr. BREEN. I don’t personally have—— 

Ms. DEGETTE. OK. I just have to say, Mr. Chairman, it seems 

a little odd to me that you’d have a task force with a recommendation but no minutes, no nothing. So I will be eager to see what I 

can get, Mr. Breen. 

I want to talk to you for the time I have remaining about the 

Gold King Mine. I imagine you’d assume that. 

The Gold King Mine in Colorado, it was included on the EPA list 

released on December 8 targeted for immediate intense action. A 

lot of us from Colorado have been focused on addressing the environmental damage caused by the August 2015 release of toxic mine 

water that tainted the Animas River and caused hardship for Coloradoans, New Mexicans, and members of the Navajo tribe living 

downstream. 

So I want to ask you a couple questions. First of all, I understand that the EPA is currently conducting a remedial investigation and feasibility study. Can you give us a timeline for when that 

study will be released? 

Mr. BREEN. It is the case we are undertaking remedial investigation. I don’t have a target date for conclusion of it. I will get that 

to you. 

Ms. DEGETTE. That would be great. Thanks. 

Now, one of the goals highlighted by the Superfund task force 

was ‘‘engaging partners and stakeholders.’’ What actions is the 

EPA taking to engage stakeholders while the remediation plan is 

being developed? 

Mr. BREEN. Thank you. 

33 

So, first of all, we have provided more than $2 million to states 

and tribes to support water quality monitoring while the work is 

going on. 

Ms. DEGETTE. Right. Well, that’s great. But what are you doing 

to engage the stakeholders? Are you having meetings? What efforts 

are you—— 

Mr. BREEN. There are community involvement coordinators who 

are working on what we call the Bonita Peak Mining District because—— 

Ms. DEGETTE. Right. 

Mr. BREEN [continuing]. Because the Gold King Mine and several 

dozen more. 

Ms. DEGETTE. Is part of that. Yes. 

Mr. BREEN. Let me ask them to summarize for you what they’re 

doing and get that to you. 

Ms. DEGETTE. That would be excellent. Thank you, because I 

know people are concerned. 

Also, in terms of funding, the EPA spent about $29 million responding to the release and about $5 million in additional cleanup 

at the site. Is that correct? 

Mr. BREEN. The number $29 million is in my notes. I didn’t have 

the other $5 million. 

Ms. DEGETTE. The $5 million was after that. 

Mr. BREEN. OK. 

Ms. DEGETTE. So my question to you is, is the EPA committed 

to providing sufficient funding to complete the cleanup that we 

need to do? 

Mr. BREEN. Yes. 

Ms. DEGETTE. OK. Great. 

Finally, I understand the EPA is opening a water treatment plan 

to clean up the water from Gold King Mine at the cost of $1.2 million. What is the EPA’s long-term plan for the plant’s operating 

cost? 

Mr. BREEN. Well, if we are talking about the same thing, we 

know that in 2018 we’ll continue to treat all the water—— 

Ms. DEGETTE. Right. 

Mr. BREEN [continuing]. Gold King Mine. Beyond 2018, I don’t 

have written down. I will have to get that for you. 

Ms. DEGETTE. You don’t know who’s going to be in charge of that 

after—— 

Mr. BREEN. Oh, I know who will be in charge. I just don’t have 

it to tell you at the minute. 

Ms. DEGETTE. OK. Great. 

Mr. BREEN. But we’ll get that for you. 

Ms. DEGETTE. If you can let me know I would appreciate it. 

Thank you so much. Thanks for your years of service to the Agency, too. 

Mr. BREEN. Thank you. 

Mr. SHIMKUS. Gentlelady’s time has expired. 

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

for 5 minutes. 

Mr. JOHNSON. Thank you, Mr. Chairman, and Mr. Breen, thank 

you for joining us today. 

34 

How can the EPA use incentives to encourage responsible parties 

to cooperate and come to the table early in order to avoid the increased transaction costs associated with protracted negotiations? 

Mr. BREEN. Yes. The statute gives us considerable tools and I 

can explain a few of them and tell you we are eager to find whatever more tools, and that’s one of the recommendations is to look 

at this. 

Mr. JOHNSON. OK. 

Mr. BREEN. This is probably the most powerful statute in terms 

of civil liability that the Congress has written for environment law. 

If we give an order and the responsible party does not comply, 

in addition to daily penalties of $25,000 or more per day, when we 

ultimately clean up the site ourselves, we can sue for punitive trouble damages. 

So if we clean up for $5 million, the defendant is exposed to our 

$5 million cost recovery, $15 million in punitive damages, and 

$25,000 or more per day. It’s an enormous exposure on the defendant’s part—not one that companies take on lightly. 

Mr. JOHNSON. OK. Well, that actually answers my second question—how can you use enforcement authorities and that’s some of 

the enforcement leverage that the EPA has to get a cleanup started 

or to help reach settlement, right? 

Mr. BREEN. Right. 

Mr. JOHNSON. OK. How does the EPA ensure the timeliness and 

the cost effectiveness, consistency, and quality of cleanups? 

Mr. BREEN. We have a number of methods in place. First of all, 

the remedial project managers are well-trained and they all have 

branch chiefs who are experienced and veterans. 

And so the natural thing is to design remedies by people who are 

well-trained and expert. For most remedies above a certain 

amount, we then take it into what’s basically an internal peer review process. 

For about the last 20 to 25 years we have used what’s called a 

remedy review board, and remedies over a certain size get discussed by all 10 regions before the remedy selection is finalized. 

And now for the largest remedies we take them to the administrator himself and that in that way the whole region, including the 

regional—we take them to the U.S. EPA administrator. So the regional administrator will be involved as well as headquarters. 

Mr. JOHNSON. OK. All right. 

Finding new ways to efficiently addressing clean up sites on the 

National Priority List is certainly commendable and we’ve talked 

a lot about that here today. 

That’s why I am encouraged by EPA’s focus on this issue through 

the Superfund task force and its recommendations. So while the 

Superfund task force notes that there is no need for statutory 

changes to carry out its recommendations, were there ideas omitted 

that did require congressional action and are there any recommendations that could be most effective through a statutory 

change? 

Mr. BREEN. So in the deliberations of the task force, we just put 

aside anything that might lead to a need for statutory change. It 

just wasn’t within the scope. 

35 

I did observe that in last month’s hearing the administrator— 

when one of your colleagues asked that question, the administrator 

said that perhaps there are lessons to be learned from the new 

Brownfields legislation that could be carried into Superfund. We 

would be prepared to discuss those kinds of ideas or others with 

you. 

Mr. JOHNSON. OK. All right. Thank you. 

Mr. Chairman, I yield back a whole minute and 13 seconds. 

Mr. SHIMKUS. The chair thanks and the chairman yields back his 

time. 

Now we recognize the gentleman from California, Mr. McNerney, 

for 5 minutes. 

Mr. MCNERNEY. OK. Thank you, Mr. Chairman, and thank you, 

Mr. Breen, for appearing this morning. 

When Administrator Pruitt was here last month I brought up the 

importance of enforcing all of our environmental laws, not just relating to Superfund. 

If we fail to enforce all of our environmental laws we will continue to create new dangerous sites, adding to the national Superfund priorities list. 

Unfortunately, I think this administration’s efforts to delay and 

dismantle regulations will do just that. Mr. Breen, as deputy administrator for the Office of Land and Emergency Management, I 

would like to ask you about some of the rules that have been delayed or repealed. 

The risk management planning program amendments would 

have made chemical facilities with large stores of dangerous chemicals safer. Those amendments were about to take effect last year 

but had been repeatedly delayed and are now being reconsidered. 

If a disaster were to strike a facility covered by the risk management planning program, leading to a large-scale release of toxic 

chemicals, could that release lead to the creation of new Superfund 

sites? 

Mr. BREEN. Thank you. 

So the risk management program, the public comment period in 

2016 ended within a few days of an important ATF finding that the 

west Texas explosion, which had motivated so many of us to do better—that the west Texas explosion was associated with arson rather than an accident. 

That important fact needed to be taken into account. So we delayed the effective date in order to take that and similar kinds of 

input into account. 

But to answer your question, any site could explode and create 

a Superfund site. 

Mr. MCNERNEY. Well, turning now to the requirements for safe 

disposal rule of waste under the resource conservation and recovery 

rule, we all know that unsafe disposal of waste can lead to the creation of Superfund sites. 

Despite this, the EPA announced in September that the Agency 

would reconsider the final rule governing the disposal of coal ash. 

When the Kingston coal ash impound burst in 2009, the contaminated water that was released created a new Superfund site. Is 

that right? 

36 

Mr. BREEN. I don’t know if it created a new Superfund. But it 

certainly released material that we responded to. 

Mr. MCNERNEY. Thank you. 

Your office also handles emergency response including response 

to hurricanes. 

Mr. BREEN. Yes. 

Mr. MCNERNEY. As we’ve seen this year, and also illustrated by 

my friend, Mr. Olson, hurricanes can damage Superfund sites and 

cause dangerous release from refineries and chemical plants. 

In my State of California, we’ve seen devastating wildfires and 

mud slides, which also have the potential to spread environmental 

contamination. 

Do you agree that extreme weather events have the potential to 

create or worsen Superfund sites? 

Mr. BREEN. Yes. 

Mr. MCNERNEY. Hasn’t the EPA found that Superfund sites are 

vulnerable to the effect of climate change including flooding, rising 

sea levels, increasing wildfires, and changes in temperature? 

Mr. BREEN. So we took a study on this ourselves and found that, 

first of all, we have to respond to climate change and that’s just 

part of our mission set and so we need to design remedies that account for that. 

And we don’t get to pick where Superfund sites are. We deal 

with the waste where it is. So we found in our own study that our 

procedures were, for the most part, satisfactory but that we needed 

to be careful and attentive and have some additional tools to meet 

those procedures. 

But as well I think there are external reviews both by the general—Government Accountability Office and the inspector general 

and we’ll look forward to working with them to understand whether they think we need to be doing different, not just better. 

Mr. MCNERNEY. Well, thank you. 

Mr. Chairman, I have here a June 2014 climate change adaptation implementation plan adopted by Mr. Green’s office to address 

the risk of climate change to Superfund sites. 

Unfortunately, this document does not appear on the EPA’s 

website. So I would like to include it for the record. 

Mr. SHIMKUS. Hearing no objection, so ordered. 

[The information appears at the conclusion of the hearing.] 

Mr. MCNERNEY. All right. 

Mr. SHIMKUS. And I thank you. 

Mr. MCNERNEY. Despite this evidence, the climate change will 

make Superfund sites more dangerous and potentially create new 

additional Superfund sites. 

The Trump administration and the Pruitt EPA are undermining 

and rolling back our efforts to fight climate change. If the president 

and Administrator Pruitt are serious about addressing contaminated sites in our country, they need to abandon the regulatory 

rollbacks and strongly enforce all of our environmental laws including the Clean Air Act to address climate change. 

Thank you. I yield back. 

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

The chair now recognizes the gentleman from Michigan, Mr. 

Walberg, for 5 minutes. 

37 

Mr. WALBERG. Thank you, Mr. Chairman, and thank you, Mr. 

Breen, for being here. 

One of the questions that always comes up about special accounts and I would like to ask if you could give us a brief overview 

of how special account funds are collected. If you would tell us 

what the current balance of the special accounts is and if you could 

walk us through how special account funds are spent. 

Mr. BREEN. Yes, sir. 

So the current balance is about $3.2 billion in special accounts 

and over all the years we’ve collected about $6.8 billion. So $6.8 billion collected, $3.2 billion approximately on hand. 

In nearly every case, special accounts are funded as a result of 

a consent decree with a responsible party and they give us cash. 

We can settle for cash or work or both, and there are plenty of 

times they would give us cash. 

The United States has the authority under legislation that the 

Congress gave us to not turn that money over to the miscellaneous 

receipts account, which is where it would otherwise go, but to instead keep it in the EPA accounts at the Treasury in order to 

spend it at the site. 

So this is thanks to you that we do this. 

Mr. WALBERG. So that’s why the balance is so high at this point 

right now? 

Mr. BREEN. I will just add one more thing. 

Mr. WALBERG. OK. 

Mr. BREEN. We earn interest on it and Treasury credits us interest. So not just get the money from the PRPs but we get money 

from the Treasury as interest grows. 

Many of these sites it’s smart to take the money now because we 

don’t know—if we said to the PRP, ‘‘Give us a million a year for 

the next 30 years,’’ we are betting on that PRP having that money 

for the next 30 years and it’s just smarter to take it now and put 

it in the Treasury where it’s safe and then spend it as it’s needed. 

So for that $3.2 billion that’s on hand, we have multi-year plans 

for every site with a material amount of money for how that money 

will be used year by year into the future. 

Mr. SHIMKUS. Would the gentleman yield just a minute? 

Mr. WALBERG. I certainly would. 

Mr. SHIMKUS. So why we are asking this question is really following up on what Buddy Carter had said on his site and it would 

be interesting in the discussions if some of the litigation or whatever went into that special account and if so why isn’t that money 

being then used. That’s kind of how we are following up this line 

of questioning. 

Mr. BREEN. Thank you. We will factor that in then. Thank you. 

Mr. SHIMKUS. Thank you, Mr. Walberg. 

Mr. WALBERG. One of the recommendations of the task force is 

to use special account funds as financial incentives to potentially 

responsible parties perform cleanup work. Can you explain how 

these incentives would work? 

Mr. BREEN. There are important discussions to be had with the 

Justice Department on this and the Office of General Counsel. Obviously, we can only do what’s statutorily authorized and most of 

38 

these accounts are created because we have a consent decree, 

which the Justice Department has been instrumental in providing. 

But it may be that within the terms of the consent decree the 

money doesn’t have to be used only in the way it was originally visioned but it can be used in the way that’s needed now. 

So we would be open to thinking about that and seeing what can 

be done. 

Mr. WALBERG. So you could give incentives. Could you reimburse 

a potentially responsible party that completes the work early at the 

site? 

Mr. BREEN. That I would need to get counsel on to give a good 

answer for. 

Mr. WALBERG. OK. Does the statute need to be updated to clarify 

what special account funds may be used for? 

Mr. BREEN. We’d like to work with you on that. We’d want to 

make sure we sort of articulated for you what the need is. So let 

us work with you on that. 

Mr. WALBERG. OK. Well, thank you. I yield back. 

Mr. SHIMKUS. The gentleman yields back his time and the chair 

thanks my colleague for that round of questions. 

The chair now recognizes the gentlelady from Michigan, Mrs. 

Dingell, for 5 minutes. 

Mrs. DINGELL. Thank you, Mr. Chairman, and I want to thank 

you and Ranking Member Tonko for having this hearing, and Mr. 

Breen, I do believe that you deeply care about this program but I 

still have a lot of concerns, which I think you have been hearing 

all of my colleagues, Republican and Democrat, express today. 

The EPA’s Superfund program is really one of our cornerstone 

environmental pieces, so legislation that has always shared great 

bipartisan support. 

Today, as you look at the future of the program, you can tell that 

all of us here are really worried about it and we are really worried 

about what’s not happening, and I hope that we are all going to 

work together in Congress to provide and protect full robust funding during the annual appropriation process. 

Without strong and continued funding, we continue to increase 

the risks to our public health and the environment long term. We 

would also see negative economic consequences in communities 

plagued by contaminated pollution sites. 

Of the 1,345 sites on the National Priorities List, Michigan has 

88 listed Superfund sites and in my district alone we’ve got three 

contaminated sites that need serious attention. 

Only one of them has been designated as an official—it’s been 

put on this National Priorities List—and I am going to go off script, 

which I always do, and make this point that I’ve been in the Congress for 3 years. Walked into, in my first year, a meeting that the 

city people had asked me to organize for Brownfield sites and was 

told by my region that this was on the list for the national priority 

site. It was a serious site. It’s the Trenton McLouth Steel site, as 

you know. 

And by the way, my colleague, Mr. Walberg, abuts and shares 

with me the Gelman Science dioxin plume in Ann Arbor as well, 

which we’ve been doing many meetings, and you know that you too 

have shared concerns on that. 

39 

But I think, unfortunately, I’ve been in too many meetings on 

both of these sites and what stuns me is that the site is leaking, 

that we are not telling the community there could be danger, and 

this Superfund site or potential Superfund site that you have told 

me is going to be listed at some point on the national priority site 

there was raw sugar being stored that was then being distributed 

in Michigan. 

So I think all of us are concerned that there are many more sites 

that are even on the site that need to be cleaned up and it’s taking 

too long to be designated, and then I’ve even been told on both sites 

but even when you get designated it’s going to take years to get 

the money to clean it up. 

Now, we founded this law to keep communities clean. You heard 

my colleague, Mr. Carter, talk about how long that site had been 

sitting there. 

This is a crisis in our country that we’ve got sites that are hurting areas that aren’t being cleaned up. So with my remaining time, 

I think funding for EPA’s Superfund program matters so it’s going 

to be the focus of what’s left. 

Appropriations to the Superfund program have generally declined between fiscal year 1999 and 2016 by about 45 percent. Additionally, cuts were announced for fiscal year 2018. 

Mr. Breen, in EPA’s budget for fiscal year 2018 the Superfund 

program was decreased by 30 percent? Yes or no. 

Mr. BREEN. That’s approximately right, certainly. 

Mrs. DINGELL. Concerning, this long decline in funding had delayed the start of the new remedial action projects in many states 

that I was just talking about and additional cuts will only delay 

further projects. 

And yet, despite declining funds and a slowdown of completed remedial actions, Superfund sites continue to be added to the National Priorities List which, by the way, I think they should be. 

Mr. Breen, why were dramatic cuts made to the Superfund program in the fiscal year 2018 budget? How do you justify these cuts 

as the National Priorities List grows and can we expect future cuts 

to the program, and what the hell does that mean? 

Mr. BREEN. Thank you. 

First of all, of course, we always support the president’s budget. 

Secondly, it’s always true that we will work with what you give us. 

Let me now turn to what we can do within that. First, we are 

looking for ways to save money no matter what. Even if you were 

going to give us more money, we should be looking for ways to save 

money. 

The inspector general told us a few months ago that they 

thought we could reallocate where Superfund personnel are assigned and be more efficient. The inspector general told us that 

some regions are having to hold up work because of insufficient 

people to do it and other regions are not. 

So we are going to undertake a way to, in a multi-year plan, look 

at how we distribute FTE among regions. We are looking at ways 

to do contracting better with a remedial action framework and, 

frankly, we think the 42 recommendations some of those will yield 

savings. In the—— 

40 

Mrs. DINGELL. Mr. Breen, can I ask you—because we are now in 

positive—do you need more money to do what you need to do? 

Mr. BREEN. So there are choices we even make. 

Mrs. DINGELL. But that’s not my point. Do we have sites that 

need to be cleaned up that are threatening people that need dollars 

to clean them up? 

Mr. BREEN. So I can answer that in this way. In almost every 

year for the last 10 or 15, at the end of the year we have had sites 

that are ready to be funded but that we didn’t have funds to get 

to. These are projects that we didn’t fund. That’s been true for a 

very long time. 

Mr. SHIMKUS. The gentlelady’s question has been answered and 

she yields back her time, and the chair thanks Mr. Breen for his 

attendance and I think it was an excellent job in answering the 

questions as we put forward, based upon the place where you’re at. 

Are you ready to ask questions, Mr. Ca ́ rdenas? 

Mr. CA ́ RDENAS. Thank you. 

Mr. SHIMKUS. So you’re not excused. We still have one last member. The gentleman from California is recognized for 5 minutes. 

Mr. CA ́ RDENAS. Thank you very much, Mr. Chairman. 

Sorry about that. You were almost excused. But thank you for 

holding this important hearing. Let me gather my thoughts really 

quick. 

When it comes to environmental cleanups and it comes to the 

status of where we are at in this country today, are we up to par? 

Are all in order? Or do we have much work to do? 

Mr. BREEN. First of all, we have a remarkable legacy that I 

couldn’t be prouder of. We also have a lot more to do. 

Mr. CA ́ RDENAS. OK. Is it specifically confined to one region or one 

state where we have more work to do? 

Mr. BREEN. We have nationwide a considerable amount of work 

to do. 

Mr. CA ́ RDENAS. I would venture to believe that there’s probably 

not a state in the nation that doesn’t have some effort that we need 

to address. 

Mr. BREEN. I would have to check on whether it’s every state. I 

would need to get back to you on that. 

Mr. CA ́ RDENAS. Again, not every corner of the country but there’s 

probably no state exempt from work that still needs to be done. 

Mr. BREEN. We have unfinished work in lots and lots of places. 

Mr. CA ́ RDENAS. Yes. When it comes to the amount of funding 

that we have afforded ourselves to address these issues, are we 

where we need to be or should we figure out a way to make sure 

that we responsibly try to help our local governments and our local 

communities address these issues? 

Mr. BREEN. We are looking for ways to be more efficient with the 

dollars that we get. 

Mr. CA ́ RDENAS. Sure. Always. 

Mr. BREEN. And in fact, one of the things the Superfund program 

does is fund on-the-ground emergency response and there’s a choice 

to be made about how much to put into emergency response and 

how much to save for the long-term cleanups. It’s kind of a pick 

your favorite child situation. You want to do more of both but 

that’s a judgment call. 

41 

Mr. CA ́ RDENAS. We are a very blessed nation. We have a pretty 

high standard of living, et cetera. But is potable water still an 

issue in parts of our country and also is potable water being affected by activities that, unfortunately, we’ve affected that potable 

water in communities around the country? 

Mr. BREEN. Indeed, in your district. As you certainly know so 

well, better than me, we’ve produced 95 billion gallons of clean 

drinking water, thanks to the work of the Superfund sites in your 

district. 

Mr. CA ́ RDENAS. And those Superfund sites are still going on, literally, today. 

Mr. BREEN. Exactly. 

Mr. CA ́ RDENAS. As my neighbors and even my children said, 

‘‘Dad,’’ thinking I know everything, ‘‘what’s that?’’ They cordon off 

a portion of a street and I said, ‘‘Well, they’re cleaning up the 

ground water below us,’’ et cetera. With issues as dangerous as 

chromium-6 and, again, your average American says, ‘‘Chromium 

what?’’ But the bottom line is it’s dangerous elements, heavy metals, et cetera, that we, unfortunately, allowed to leach into our 

drinking water. 

So that being the case, Los Angeles has been fortunate that—I 

believe, that with the cooperation of the state and support and the 

federal government and with a—the largest department of water 

and power that serves my community of the 4 million people of Los 

Angeles we’ve been able to do a little bit of catch up but we still 

have much work to do. 

Let’s take a community like Los Angeles. People think it’s a big 

city. But it is spread out. We have many aquifers. We have many 

sources of water, et cetera. 

Can you give me an example of what we could do more together 

with local government and the Federal Government when it comes 

to the cleanup that still has to be done in a community like Los 

Angeles? 

Mr. BREEN. Yes. One thing that we aren’t doing right now is seeing whether we can make upgrades to the Superfund remedies 

presently installed in the sites in your district rather than just say 

that we are going to let them run themselves down. 

We want to see if we can upgrade them and that work is ongoing. 

Mr. CA ́ RDENAS. OK. Again, to the earlier point that you and I 

agreed, much work to do. 

Mr. BREEN. Absolutely. 

Mr. CA ́ RDENAS. Now, that being the case, what can Americans do 

today to help make sure that we reduce the number of future 

Superfund sites, et cetera? 

And I am not picking on business. I am just saying as a populace 

whether it’s business or individuals or government what could we 

do to be more preventative? 

Mr. BREEN. This is a complicated question and some of it is not 

law. Some of it is the ways in which we make things. One of the 

programs in my office at the EPA is sustainable materials management. It’s a use of things that don’t have to be thrown away—that 

can be reused or repurposed—and there’s a lot of progress that 

could be made there. 

42 

Mr. CA ́ RDENAS. Yes. And, unfortunately, sometimes regulation is 

labeled as bad. But when it comes to, for example, potable water, 

it’s so precious and to every community. 

Isn’t it important that we have right size regulation and responsible efficient regulation? 

Mr. BREEN. Yes. 

Mr. CA ́ RDENAS. OK. Thank you very much. 

I yield back. 

Mr. SHIMKUS. The gentleman yields back his time. All time is expired and we want to thank Mr. Breen again. 

We are going to talk real quick so you can get out of here before 

someone else shows up. 

Thank you very much and we would like to sit the second panel 

and we will dismiss Mr. Breen. 

Thank you all for being here and thank you for listening to the 

first panel. I think that could be helpful and as we have our discussion here today because we want—the whole intent is to try to see 

if there’s legislative changes we can do to make the system work 

better. 

So we want to thank you for being here today and taking the 

time to testify. 

At the second panel we have Mr. Steve Cobb, chief of land division, Alabama Department of Environmental Management on behalf of the Association of State and Territorial Solid Waste Management Officials. 

We have John Winston Porter, environment and energy consultant. We have James McKenna, Portland Harbor policy analyst for 

Governor Brown’s Natural Resources Office. Debbie Mans is executive director and baykeeper, New York/New Jersey Baykeeper, and 

Katherine Probst, who is an independent consultant. 

Your full records have been submitted for the record. You will 

have 5 minutes. And with that, I would like to turn to Mr. Cobb 

to start. 

You are recognized for 5 minutes. 

STATEMENTS OF STEVE COBB, CHIEF, LAND DIVISION, ALABAMA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT, 

ON BEHALF OF THE ASSOCIATION OF STATE AND TERRITORIAL SOLID WASTE MANAGEMENT OFFICIALS; DR. J. WINSTON PORTER, ENVIRONMENTAL AND ENERGY CONSULTANT; JAMES MCKENNA, PORTLAND HARBOR POLICY ANALYST, GOVERNOR BROWN’S NATURAL RESOURCES OFFICE; 

DEBBIE MANS, EXECUTIVE DIRECTOR AND BAYKEEPER, NY/ 

NJ BAYKEEPER; KATHERINE PROBST, INDEPENDENT CONSULTANT 

STATEMENT OF STEVE COBB 

Mr. COBB. Thank you for the introduction, Mr. Chairman. 

Good morning, Chairman Shimkus, Ranking Member Tonko, 

members of the subcommittee. I want to thank you for the opportunity to speak at today’s hearing. 

Representing ASTSWMO, which is the State and Territorial 

Solid Waste Management Officials with the waste management officials including those responsible for the oversight of cleanups, we 

43 

appreciate the opportunity to present our thoughts on the topic of 

modernizing the Superfund cleanup program. 

As you’re aware, much has changed and many lessons have been 

learned in the almost 40 years since CERCLA has been enacted. 

For example, robust cleanup programs have been developed by the 

states and EPA. The methods and technologies have been expanded. States have become key co-regulators and program partners with EPA in protecting human health and the environment. 

Given the history and growth of our cleanup programs both state 

and federal, I will describe several recommendations to consider in 

evaluating the modernization of the cleanup program. 

CERCLA is a vitally important tool in the EPA and state toolboxes for ensuring and implementing needed cleanup at many sites 

across the country. 

However, effective tools must be periodically sharpened and 

maintained to ensure their continued relevance and effectiveness. 

As a part of any effort to modernize the program, the national 

contingency plan should be updated to reflect important lessons 

learned from the almost 40 years of cleanup experience by states 

and EPA. 

In order to truly affect streamlining and efficiency improvements 

for the long term, changes to the program must be incorporated 

into the fabric of the program and communicated to those individuals who conduct the day-to-day implementation. 

The NCP is the rule book that project managers, supervisors, 

and legal support refer to on a regular basis for guidance and direction in managing cleanup and decision making, and the foundation 

that CERCLA cleanup program guidance is based upon. 

The NCP should also be updated to provide for a more streamlined and efficient process for managing responsible party-led and 

funded cleanups as compared to those cleanups conducted directly 

by EPA using funds from the Superfund trust fund, where additional documentation is often required in order to support future 

litigation and cost recovery efforts. 

By providing for a more streamlined process for sites where the 

responsible party is funding and implementing the process, a further incentive is created to encourage responsible parties to step 

forward and work with EPA and the states cooperatively to clean 

up sites in a more timely, efficient, and cost-effective manner. 

The process for identifying and selecting ARARs is also an area 

which should be addressed as part of modernizing the program. In 

addition, the statute and regulations should be updated to make 

clear the state environmental covenant, laws, and regulations are 

essential components of many remedial actions, especially those 

that require longer-lasting remediation activities. 

As a part of improving the ARAR’s identification and selection 

process and in recognition of the co-regulator role of the states, it’s 

important that the role for state co-regulators in CERCLA decision 

making is enhanced. As a part of the evaluation of the ARAR process perhaps the long-standing CERCLA exemption for permits 

should be reconsidered. 

While this exemption may have been advantageous in the beginning of the program to ensure that cleanups were timely, the 

44 

states’ and EPA’s permanent programs have matured to the point 

where this may no longer be a benefit. 

Modernization of the program should include strengthening and 

clarifying the federal facilities compliance provisions of CERCLA. 

In implementing the cleanup provisions of CERCLA, it is imperative to ensure that both industry and government responsible parties are held to the same high standards. 

Recognizing that robust state cleanup programs have been developed and implemented in the four decades since the enactment of 

CERCLA, the program should also more clearly recognize the 

cleanups conducted under other cleanup authorities achieve results 

at least as productive as CERCLA actions. 

The states generally consider the nomination of a site for the 

NPL as a last resort and only after exploring and exhausting all 

other available state and federal programmatic enforcement and 

incentive options to either motivate a recalcitrant PRP or entice an 

unliable party interested in taking on the cleanup as a part of redevelopment. 

It is not wise to give the impression that only CERCLA cleanup 

actions are protective. By ensuring that CERCLA recognizes the 

merits of other programs, we increase the overall effectiveness and 

efficiency of cleanups regardless of the program under which 

they’re conducted. 

States’ concerns related to cost share related to fund-led cleanup 

should also be addressed including consideration of greater flexibility and credit for states in providing in-kind contributions to 

cleanups which may be used to fulfill these cost contribution obligations, and modernization should include provisions to ensure that 

needed regulatory cleanup standards are developed and updated in 

an expeditious manner using sound science and the best information available. 

The program consists of at least four distinct components: the assessment and identification of releases, referred to as the preliminary assessment site investigation component, short-term removal 

actions, long-term removal actions conducted and funded by responsible parties, and long-term actions conducted by EPA using 

the trust fund. 

Many states have the resources and desire to play a greater role 

in the process, and when willing and able those states should be 

encouraged to do so. 

Consideration should be given to authorizing states to directly 

implement both the PA/IS and the responsible party-led and funded removal and remedial components, which would add substantial 

capacity to the cleanup and decision making authority of the program and free up precious federal resources to focus on those 

‘‘orphan‘‘ sites and fund-led sites. 

In conclusion, states consider the Superfund cleanup program to 

be a vitally important tool for cleaning up our nation’s contaminated sites and restoring and protecting human health and the environment. 

States have positioned themselves to be effective partners and coregulators with EPA in implementing the cleanup program and 

look forward to working with EPA, Congress, and others in our colVerDate Nov 24 2008 12:32 Jan 10, 2019 Jkt 037690 PO 00000 Frm 00048 Fmt 6633 Sfmt 6633 I:\MY DOCS\HEARINGS 115\HEARINGS\115-92 CHRIS
45 

lective efforts to continue to modernize and improve the effectiveness and efficiency of this program. 

Thank you. 

[The prepared statement of Mr. Cobb follows:] 

46 


29742.006

Main Points: 

Hearing 

"Modernizing the Superfund Cleanup Program" 

U.S. House of Representatives 

Committee on Energy and Commerce 

Subcommittee on the Environment 

January 18, 2018 

Testimony of 

Stephen A. Cobb 

on behalf of the 

Association of State and Territorial Solid Waste Management Officials 

1) States consider the Superfund Cleanup Program to be a vitally important tool for cleaning up many 

of our nations' contaminated sites. 

2) States have positioned themselves to be effective partners and co-regulators with EPA in 

implementing the Superfund Cleanup Program. 

3) The National Contingency Plan (NCP) should be updated to reflect important lessons-learned from 

almost 40 years of environmental cleanup experience by States and EPA under not only CERCLA, 

but also under the RCRA, Brownfields and State cleanup programs. 

4) The process for identifying and selecting ARARs, including the applicability permits and of State 

environmental covenant and land use control laws and regulations, should be addressed. 

!101 !7'hStreet !\W,Suite707, Washington, DC20036 

T:tl0lj640-!060 F:\202)33!·3254 

ww"'.aotswmo.org 
47 


29742.007

5) The federal facilities compliance provisions of CERCLA should be strengthened and clarified in a 

manner similar to improvements made to the federal Solid Waste Disposal Act (SWDA) through the 

Federal Facilities Compliance Act of 1992. 

6) The Superfund Cleanup Program should more clearly recognize and embrace that investigations 

and cleanups conducted under other cleanup authorities achieve results at least as protective as 

CERCLA actions. Recognizing the protectiveness and value of cleanups conducted under State and 

federal cleanup programs other than CERCLA expands our capacity as a nation to respond 

effectively to releases of hazardous substances, and increases our cleanup efficiency by minimizing 

unnecessary redundancy and duplication of efforts. 

7) State's concerns related to the 10% Cost Share and the 100% of operations and maintenance 

(O&M) costs which States are required to contribute to Fund-lead cleanups should be evaluated 

and addressed, including consideration of greater flexibility and credit for States in providing "in 

kind" contributions to cleanups. 

8) Modernization of the Superfund Cleanup Program should include provisions to ensure that needed 

regulatory cleanup standards for emerging contaminants are developed and updated in an 

expeditious manner using sound science and the best information available. 

9) Consideration should be given to authorizing States to directly implement the PA/SI component of 

the program and the RP-Ied and RP-funded removal and remedial program components, while 

removal and remedial actions conducted by EPA using funding from the Superfund Trust Fund 

should continue to be implemented and conducted directly by EPA 
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Good morning Chairman Shimkus, Ranking Member Tonko, and Members of the Subcommittee. Thank you 

for the opportunity to speak at today's hearing. My name is Stephen Cobb and I am Chief of the Land Division 

of the Alabama Department of Environmental Management (ADEM). I am also a Past-President of the 

Association of State and Territorial Solid Waste Management Officials (ASTSWMO), of which the ADEM is a 

member organization. I am here today to testify on behalf of ASTSWMO. ASTSWMO is an association 

representing the waste management and cleanup programs of the 50 States, five Territories and the District 

of Columbia (States). Our membership includes managers from the State environmental protection 

programs, including those responsible for overseeing the cleanup of Superfund sites. 

Modernizing the Superfund Cleanup Program 

We appreciate the opportunity to present our thoughts on the topic of "Modernizing the Superfund Cleanup 

Program". Periodic review, reassessment and modernization of our statutory and regulatory authorities is a 

critical process of government to ensure that we are able to continue to provide the desired protection of 

human health and the environment for all of our citizens in an efficient and effective manner as we learn 

from the past and plan for the future. As you are aware, much has changed and many lessons have been 

learned in the almost 40 years since the Comprehensive Environmental Response, Compensation, and 

Liability Act (CERCLA) was enacted and we as a nation began in earnest to clean-up hazardous substance sites 

which pose a threat to human health and the environment. For example: 

1) Robust cleanup programs have been developed by the States and EPA, including both mandatory 

and voluntary programs, under federal cleanup and enforcement authorities including CERCLA, the Resource 

Conservation and Recovery Act (RCRA), Brownfields and also under various State authorities, 

2) Site investigation methods and technologies have expanded and matured, 
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29742.009

3) Existing cleanup technologies have improved, and new technologies have been developed, 

4) Our understanding of how to assess, investigate, remediate, and monitor contaminated sites has 

greatly improved, 

5) Our understanding of, and the available tools for, the assessment and management of 

environmental risks from contaminated sites have been substantially expanded, 

6) Many lessons have been learned from the thousands of sites which have been assessed, 

investigated and remediated through these various cleanup programs, 

7) The inherent value of early intervention and prevention programs in reducing the need for afterthe-fact remediation programs has repeatedly been underscored, 

8) The environmental permitting programs of the States and EPA have developed and matured such 

that permit application requirements are well understood, required environmental permits are reviewed, 

processed, and issued in a timely and consistent manner, and the permitting processes of the States and EPA 

have been shown to be an effective management tool for ensuring consistency in the application and 

enforcement of our various environmental laws and regulations, and 

9) States have become key co-regulators and program partners with EPA in protecting human health 

and the environment through the implementation of our various regulatory and cleanup programs, including 

the Superfund Cleanup Program. 

Given this reflection of history and the growth of our State and federal cleanup programs, I will describe 

below several recommendations to consider in evaluating the modernization of the Superfund Cleanup 

Program. Many of these recommendations have been the subject of discussion for years, while others are 

more recent. Some would require changes to the statute, others to existing regulations, guidance and policy. 
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29742.010

CERCLA (aka Superfund) is a vitally important tool in the EPA and State toolboxes for ensuring and 

implementing needed cleanup at many sites across the country. CERCLA cleanups prevent continued harmful 

impacts from hazardous substances. However, we must recognize that effective tools must be periodically 

sharpened and maintained to ensure their continued relevance and effectiveness. 

ASTSWMO members have provided testimony to this Subcommittee (see attached testimony by Jeffery 

Steers, VA on May 17, 2013, Bonnie Buthker, OH on September 16, 2015, and Amy Britton, OK on July 13, 

2016) and to the Senate Committee on the Environment and Public Works (EPW) (see attached testimony by 

Jeffery Steers, VA on August 1, 2017) in previous hearings regarding various aspects of the CERCLA program. 

The issues, concerns and observations raised in their statements are still relevant and should be addressed 

in any effort to modernize CERCLA. 

ASTSWMO and its member agencies routinely work with our partners at EPA to identify opportunities for 

improvements in the Superfund Cleanup Program. Examples of this collaboration in recent years include a 

LEAN process evaluation of various aspects of the program, as participants in a workgroup to develop tools 

to improve the process of identifying Applicable or Relevant and Appropriate Requirements (ARARs), as part 

of an effort to evaluate and improve State Superfund Contracts which define the terms and conditions for 

States and EPA to share remedial action costs at individual Fund-lead National Priorities List 

(NPL) sites, and a detailed analysis of the Superfund Site Assessment Program which is used to identify 

releases of hazardous substances, pollutants or contaminants that may endanger human health or the 

environment and to determine whether those sites qualify for inclusion on the NPL. Our members are 

currently collaborating with EPA regarding the recommendations of the Superfund Task Force regarding 

potential improvements to improve the pace and efficiency of the Superfund Cleanup Process. ASTSWMO 

and its members value this collaborative partnership with EPA, and stand ready to work with EPA to 
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implement the various streamlining and process improvement recommendations that have resulted from 

these efforts as well as others that may be identified in the future. As co-regulators working together to 

clean up contaminated sites, we share common goals and objectives, and it is imperative that we work 

together to improve the effectiveness and efficiency of the programs and processes through which we 

accomplish these cleanups. 

As a part of any effort to modernize the Superfund Cleanup Program, the National Contingency Plan (NCP) 

should be updated to reflect important lessons-learned from almost 40 years of environmental cleanup 

experience by States and EPA under not only CERCLA, but also under the RCRA, Brownfields and State cleanup 

programs. In order to truly effect streamlining and efficiency improvements for the long-term, any changes 

to the program must be clearly documented, incorporated into the fabric of the program, and communicated 

down the chain-of-command to the individuals who conduct the day-to-day implementation of the program. 

The NCP is the "rulebook" that project managers, supervisors, and legal support refer to on a regular basis 

for guidance and direction in managing cleanups and decision-making, and the foundation that CERCLA 

cleanup program guidance is based upon. 

For a clear example of the positive effect of modernization and streamlining efforts on a national cleanup 

program, we should look to the progress of the RCRA Corrective Action program before, as compared to 

after, the series of RCRA Corrective Action Reforms enacted by EPA and the States in the late 1990's and early 

2000's. As a direct result of the policy and procedural changes enacted through these reforms, the RCRA 

Corrective Action program was transformed into a much more efficient and effective cleanup program, and 

States and EPA continue to find more efficient and effective ways to speed up the investigation and cleanup 

process while maintaining stringent and protective cleanup standards. As a part of updating the NCP, 

consideration should be given to streamlining not only the investigation and remediation processes under 
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CERCLA, but also the more routine paperwork and documentation processes, such as those for reviewing, 

approving and amending reports, records of decisions, deferral and delisting petitions. 

The NCP should also be updated to provide for a more streamlined and efficient process for managing and 

implementing Responsible Party (RP) -led and RP-funded cleanups, as compared to cleanups conducted 

directly by EPA and its contractors using funds from the Superfund Trust Fund where additional 

documentation may be required to support future cost-recovery efforts and other litigation needs. By 

providing for a more streamlined process for sites where the RP is funding and implementing the cleanup 

process, as compared to sites where EPA must conduct the cleanup using Trust Fund monies and then seek 

to recoup those costs through litigation, a further incentive is created to encourage RPs to step forward and 

work with EPA and the States to cleanup sites in a more timely, efficient and cost effective manner. An 

example of the increased cleanup efficiency that can be realized from such a streamlining approach can also 

be seen from the improvements in pace and effectiveness of cleanups which resulted from EPA's RCRA 

Corrective Action Reforms of the late 1990's and early 2000's. 

States are the primary implementers of the majority of our collective environmental laws and regulations, 

and we have a vested and important interest in ensuring that our laws and requirements are applied 

consistently and fairly across all regulated entities within our jurisdictions. As Ms. Brittain testified before 

this Subcommittee on July 13, 2016 and as Mr. Steers testified before the Senate EPW on August 1, 2017, the 

process for identifying and selecting ARARs is also an area which should be addressed as a part of modernizing 

the Superfund Cleanup Program. In addition to clarifying and modernizing the ARARs identification and 

selection process, the statute and regulations should also be updated to make clear that State environmental 

covenant and land use control laws and regulations are essential components of many remedial actions, 

especially those that require longer lasting remediation activities and those which utilize risk management 

7 
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cleanup approaches to ensure long-term protection of human health and the environment. These laws and 

regulations, which have generally been developed and implemented in the last twenty years for the express 

purpose of ensuring that environmental cleanup remedies remain protective for generations to come, have 

often been challenged as ARARs on the basis that they are viewed as "property laws", as opposed to 

"environmental laws". Clarification in the statute and regulations that such laws and regulations are indeed 

ARARs under CERCLA is needed to address repeated issues which the States encounter in ensuring 

compliance with these requirements as a part of CERCLA remedies, and thus ensuring the continued 

protectiveness of the selected remedies. As a part of improving the ARARs identification and selection 

process, and in recognition of the co-regulator role of the States, it is also important that any modernization 

of CERCLA ensures that the role for State co-regulators in all CERCLA decision-making for sites within their 

boundaries is enhanced. As a part of the evaluation of the ARARs process, perhaps the long-standing CERCLA 

exemption from permits should be reconsidered. While this exemption may have been advantageous in the 

beginning of the program to ensure that cleanups were timely, the States' and EPA's permit programs have 

matured to the point where this is no longer a benefit. This exemption leads to unnecessary inconsistency 

and less efficiency in the review and approval of cleanup plans and other actions. The environmental 

permitting requirements ofthe States and EPA should be the same to implement remedial actions at a given 

site, regardless of whether it is conducted under a State-led cleanup program, by a RP as part of a CERCLA 

cleanup, or by EPA at a Fund-lead site. 

As discussed in Ms. Buthker's testimony before this Subcommittee in 2015, modernization ofthe Superfund 

Cleanup Program should include strengthening and clarifying the federal facilities compliance provisions of 

CERCLA in a manner similar to improvements made to the federal Solid Waste Disposal Act (SWDA) through 

the Federal Facilities Compliance Act of 1992. In implementing the cleanup provisions of CERCLA, it is 

imperative to ensure that both industry and government RPs are held to the same high standards. And as 
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the State role in CERCLA cleanups continues to increase through an increased role in the decision-making 

process, and through the application and utilization of ARARs and other State cleanup programs and 

authorities, it is important to make clear that federal entities must comply with State environmental laws 

and regulations to the same extent as non-federal entities when conducting those cleanups. 

Recognizing that robust and effective State cleanup programs and authorities have been developed and 

implemented in the four decades since the initial enactment of CERCLA, and that the vast majority of our 

nation's contaminated sites are cleaned up under State regulatory oversight using authorities other than 

CERCLA, the Superfund Cleanup Program should also more clearly recognize and embrace that investigations 

and cleanups conducted under other cleanup authorities (e.g., RCRA Corrective Action and many State 

cleanup programs) achieve results at least as protective as CERCLA actions; when such cleanup has occurred 

or is occurring, CERCLA should more readily defer action under CERCLA to those programs when appropriate. 

States generally consider the nomination of a site for the NPL a "last resort", and only after exploring and 

exhausting all other available State and federal programmatic, enforcement, and incentive options to either 

motivate a recalcitrant potentially responsible party (PRP) or entice a non-liable party interested in taking on 

the cleanup as part of a redevelopment. It is not correct, productive or wise to create or foster the impression 

that only CERCLA cleanup actions are protective. Recognizing the protectiveness and value of cleanups 

conducted under State and federal cleanup programs other than CERCLA expands our capacity as a nation to 

respond effectively to releases of hazardous substances, and increases our cleanup efficiency by minimizing 

unnecessary redundancy and duplication of efforts by both regulatory agencies and by the RPs. We must 

remember that CERCLA is only one of the tools in our environmental cleanup toolbox, it is not the only tool 

for the job. By ensuring that CERCLA recognizes the merits and effectiveness of similar cleanups conducted 

under other State and federal authorities, we increase the overall effectiveness and efficiency of needed 

9 
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environmental cleanups regardless of the program under which they are conducted, and thus enhance and 

increase our overall protection of human health and the environment. 

Mr. Steers and Ms. Brittain have also testified before this Subcommittee and the Senate EPW regarding 

State's concerns related to the 10% Cost Share and the 100% of operations and maintenance (O&M) costs 

which States are required to contribute to Fund-lead cleanups. In looking at the modernization of the cleanup 

program, these issues should be evaluated and addressed, including consideration of greater flexibility and 

credit for States in providing "in kind" contributions to cleanups which may be used to fulfill these cost 

contribution obligations. 

In conducting cleanups under the Superfund Cleanup Program and other State and federal cleanup 

authorities, State and federal project managers rely on EPA as a centralized clearinghouse for technical 

expertise that States and EPA Regions cannot and should not maintain individually, including the 

development of toxicity and risk information, evaluation of cleanup technologies and analytical methods, and 

research and information on new threats from, and strategies for addressing, contaminants of emerging 

concern. Without this critical support and information, and the resulting chemical-specific remediation 

standards that are derived from it, States and EPA are often unable to satisfactorily address the concerns of 

the public regarding releases of these emerging contaminants, which currently include well known chemicals 

of concern such as the perfluorinated compounds (PFAS), perchlorate, 1-4-Dioxane, and others. Therefore, 

modernization of the Superfund Cleanup Program should also include provisions to ensure that needed 

regulatory cleanup standards are developed and updated in an expeditious manner using sound science and 

the best information available. 

10 
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29742.016

The Superfund Cleanup Program consists of at least four distinct components: 1) the identification and 

assessment of releases to determine whether a cleanup under CERCLA is needed, which is often referred to 

as the Preliminary Assessment and Site Investigation (PA/SI) component, 2) short-term removal actions which 

are conducted to perform short-term abatement and stabilization of releases and imminent threats of 

release, 3) long-term remedial actions which are conducted and funded by RPs, and 4) long-term remedial 

actions which are conducted by EPA and its contractors and funded by the Superfund Trust Fund. 

The CERCLA PA/SI program component has historically been largely implemented by States through 

cooperative agreements with EPA. This program component has been proven to address numerous 

developing hazardous substance issues and sites before they rise to the level of requiring NPL listing and longterm remedial action under CERCLA. This early intervention is a wise investment in prevention and early 

action at sites across the country, which greatly reduces future taxpayer funded cleanup needs. Under the 

PA/SI program component, States assess the vast majority of contaminated sites evaluated under the 

Superfund Cleanup Program, with fewer than 10% of these sites ultimately requiring listing on the NPL. The 

balance of those sites requiring remediation are addressed under State cleanup authorities, under voluntary 

cleanup authorities, or under Brownfields cleanup authorities with State oversight. As a result, the PA/SI 

program serves as a kind of clearinghouse to evaluate sites and direct them to the authority best suited to 

address the site-specific situation. ASTSWMO has documented the effectiveness of the PA/SI program in two 

recent reports, its May 9, 2014 report "Analysis of Superfund Site Assessment Program Cooperative 

Agreements with States: Benefits of Effective State and Federal Partnerships" and its subsequent "Site 

Assessment Program Analysis" report dated August 26, 2017. 

Many States have the resources, expertise and desire to play a greater role in the Superfund process. When 

willing and able, those States should be encouraged (and funded) to do so. Given the development and 

II 
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maturation of State cleanup and authorities which has occurred over the past four decades, consideration 

should be given as a part of modernizing the Superfund Cleanup Program to establishing a State and Tribal 

Assistance Grant (STAG) program, and authorizing States to directly implement in lieu of EPA, with 

appropriate EPA oversight, both the PA/SI component of the program and the RP-Ied and RP-funded removal 

and remedial program components. Such authorization, including appropriate provisions for information 

collection and enforcement (e.g., CERCLA Section 106) authority by the State program, would: 

a. add substantial resources and capacity to both the technical project management and 

oversight component of the Superfund Cleanup Program and to the cleanup decision-making 

capacity of the program, 

b. free up precious federal EPA resources needed to focus on the timely and effective cleanup 

of Fund-lead sites where there is no viable RP, or where the RP is unwilling or unable to 

conduct the required cleanup themselves, 

c. provide for faster and more efficient cleanups at both RP-Iead sites and at Fund-lead sites 

simultaneously by reducing the competition for limited agency resources for needed 

regulatory oversight and decision-making, 

d. reduce duplication of effort in cases where both EPA and the State are regulating and 

overseeing the same cleanup, 

e. retain overall EPA program oversight of State programs, while removing existing process, 

capacity, and decision-making bottlenecks, and 

f. build on proven State-led cleanup programs and regulatory systems already operating in 

other federal environmental programs (e.g., RCRA, Clean Water Act, Clean Air Act). 

Under this scenario, removal and remedial actions conducted by EPA using funding from the Superfund Trust 

Fund should continue to be implemented and conducted directly by EPA in order to 1) maintain direct federal 

12 
58 

[The attachments to Mr. Cobb’s statement can be found at: 

https://docs.house.gov/meetings/if/if18/20180118/106783/hhrg115-if18-wstate-cobbs-20180118.pdf.] 


29742.018

control and management of Trust Fund expenditures for cleanup, 2) enable meaningful prioritization of Trust 

Fund expenditures for sites in various States, and 3) facilitate subsequent federal legal action necessary to 

seek re-imbursement of Trust Fund expenditures from RPs. 

In conclusion, States consider the Superfund Cleanup Program to be a vitally important tool for cleaning up 

many of our nations' contaminated sites and for restoring and protecting human health and the environment 

for all of our citizens and for generations to come. States have positioned themselves to be effective partners 

and co-regulators with EPA in implementing the Superfund Cleanup Program, and look forward to working 

with EPA, Congress, and others in our collective efforts to continue to modernize and improve the 

effectiveness and efficiency of this important program. 

Thank you for the opportunity to speak with you today. I would be happy to answer any questions you may 

have. 

13 
59 

Mr. SHIMKUS. Thank you. 

Dr. Porter, you’re recognized for 5 minutes. 

STATEMENT OF J. WINSTON PORTER 

Mr. PORTER. It’s good to be here. I want to be very direct this 

morning. I used to run this program for a long time and I was 

going to tell Mrs. Dingell that I spent a lot of time with her husband. I would certainly call the him Father of Superfund. 

Mr. SHIMKUS. We have all dealt with Congressman Dingell. 

Mr. PORTER. We all—and Mr. Oxley and many other people have 

dealt with this committee. 

Anyway, I want to be very, very direct here, if I can. I am in private practice now but I spent a lot of time in Superfund. I still 

spend a lot of time in Superfund. 

I liked the 40 items that the previous speaker—Barry Breen’s a 

good guy. I know him well. He’s very smart. He’s not in the position to make the kind of things you need to make this program 

going. You need somebody that represents the president, and I’ll 

talk more about that later. 

One of the things I want to mention is that, as several people 

have said today, the most important thing in Superfund—we got a 

lot of people who worked on the Superfund. EPA has got a lot of 

good people. The states have done a lot of good work. 

But the basic thrust today, Superfund costs way too much and 

does not nearly as much work as it should, period. That’s my bottom line. 

Now, how do we improve this situation? And by the way, I think 

we can do it. I’ve seen several assistant administrators who have 

done quite well. Others have not done so well. It’s a tough job and 

you need people who can really run this program. 

In fact, I would say the most important thing I can say to you 

today I’ll start out with. It’s critical that the president put in someone in my old job or other assistant administrators. 

They had the ability to do it. They are authorized by law to make 

remedy selections. So if you really have a site that’s not being done, 

you go to my old position and that person has the authority in the 

CERCLA statute to make the decision. 

Otherwise, it’s a very large committee process. 

So it’s critical, in my opinion, that the president appoint an assistant administrator to run the Superfund program on a day-today basis. 

He or she has the authority to make the key decisions and can 

run the projects. I don’t mean micro manage them all but to be 

sure things get done, and make the tough decisions. 

Excuse the name dropping, but I’ve talked to at least a dozen or 

so governors when I was there, many, many hundreds or dozens, 

at least, of people, Congressmen, where you had to kind of get 

down to making a decision, and I think that’s really critical that 

you get somebody who can do that. 

That person, in my judgement, should have a technical background probably, is a good manager, understands the program, and 

is willing to make tough decisions and is, frankly, a pretty good 

communicator. 

60 

Now, there are three or four things I want to present today, some 

of which you heard, some of which you haven’t. Probably the next 

most important thing is to set and enforce deadlines. 

One thing I used to do, every quarter I would send all 10 regional administrators, here’s what we are going to finish this quarter—give me a call—send your staff up if you don’t make it. 

I grew up in the private sector where I ran large projects around 

the world and I try to treat this just as seriously. So you set and 

enforce deadlines, and a key job of the assistant administrator is 

to be sure we get these things done. When I tell the governor or 

I tell a member—Congressmen or Senators I’ll bring in and finish 

the site, we finish it. 

Love Canal, just a quick name we all know—I spent a lot of time 

with senior people in the state of New York. I spent a lot of time 

in Buffalo, et cetera, and a lot of time with Mr. LaFalce who was 

a Congressman at that time. 

When I said we were going to do it in a year and a half, we did 

it in a year and a half. I am not the only one that can do that. 

Many people can do that. You just got to get the right people. 

Set and enforce deadlines and, particularly, help with the selection of remedy. That’s the key thing in this program is what are 

we going to do here. I have a couple sites—well, I may mention 

several, and I gave a lot of names here. But there have been sites 

where you’ve spent $100 million in 10 years and don’t have a remedy. 

I am not saying don’t clean up the site. I am saying don’t even 

have a remedy, and these are fairly recent sites and there are 

many others. 

One thing that’s not been discussed today—and Mrs. Dingell 

might be interested in this, from what she said—there is an A+ 

program at EPA called Emergency Removals and Early Actions. 

It’s not done as well as it could be done but it’s very—when I was 

interviewed, a reporter when I left said would you give yourself an 

A on anything? I said, well, I’d get some B’s and B minuses, but 

A+ is the Emergency Removal program. 

And what that basically means is I, and other people in the regions, can agree to do something that’s, they might say to me, ‘‘Can 

you give me a couple million dollars to go out; these barrels are 

leaking,’’ and stuff like that. Very good program. 

In fact, one of the guys—I’ll mention one name here—several 

people I know that have been in that position and one or two of 

them became assistant administrators. They were very good because they were used to doing things quickly. 

So I think Emergency Removals are going to be important. Number three, I wanted to take a little different tack on one issue. The 

term PRP—potential responsible parties—has not been mentioned 

much today. 

Those are the companies or the cities or the other people who are 

caught up in this program. They are going to have to pay for it, 

et cetera. And that needs improvement. And I’ve talked a lot to my 

industry colleagues out there about how I am concerned that many 

large companies, when they start a program like this, they immediately turn to their legal department. 

61 

My dad was a lawyer. Many of you are lawyers. I have nothing 

against lawyers. But you need top managers to do this work. And 

I think I talked to—most of the EPA when I was there was the 

general counsel. He was extremely good, extremely helpful. He 

would always tell me, ‘‘Where do you want to get to and how do 

we get there?’’ 

So it’s important that the PRPs, or responsible parties, be dealt 

with and they need to improve because they have the know how. 

I don’t need to necessarily tell a Dupont or a Monsanto or AT&T 

how to run a project. But what I do need to do is say, ‘‘You’re going 

to pay for this. Let’s do it in the most cost-effective way we can and 

let’s really get on with it.’’ 

So I think it hasn’t been talked about enough. There is some real 

failure here, in some cases, of the companies involved to get serious, work with us. Not listen only to their lawyers but also their 

engineers and, frankly, their senior management—that we want to 

get this thing done. It’s a terrible PR problem, et cetera. 

One thing that has most—— 

Mr. SHIMKUS. Give me your last or quick—you’re already over so 

give me—— 

Mr. PORTER. OK. Just going to say I’d like to see us get rid of 

some of the things that are just a drag on us. 

Mr. Breen mentioned the Remedy Review Board. It’s worse than 

nothing. It takes a lot of time and stuff. Nice people and all that, 

but it takes a lot longer. It’s because that one thing. So there are 

many other things like that, too. 

[The prepared statement of Mr. Porter follows:] 

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29742.019

Modernizing the Superfund Program 

Testimony of Dr. J. Winston Porter 

Subcommittee on Environment 

House Committee on Energy and Commerce 

January 18, 2018 

Mr. Chairman, my name is .1. Winston Porter, and I am an environmental and energy 

consultant, based in Savannah, Georgia. Formerly, I was the EPA's Assistant 

Administrator with national responsibility for the Superfund program 

It is a pleasure to be here today to provide testimony on EPA's progress in the cleaning 

up of Superfund sites. Specifically, I will make a number of recommendations to improve 

the effectiveness of these remedial activities. 

In my testimony I will draw on about 30 years of Superfund experience, including 

management of the early EPA program as well as consulting activities with various 

federal agencies, states and private parties. My professional background also includes the 

fields of chemical engineering and project management. My degrees are from the 

Universities of Texas (Austin) and California (Berkeley). 

I understand that some are critical of President Trump and his EPA Administrator Scott 

Pruitt for reducing funds for the Superfund hazardous waste cleanup program. But money 

is not Superfund's problem. 

While Superfund has completed over a thousand contaminated sites, the work completed 

is not nearly commensurate with the huge public and private dollars spent- well over 

$100 billion. Also important, people living near Superfund sites are often unhappy with 

the excessive times needed to complete the sites. 

Actually, over the 37- year life of Superfund the basic problem has been site cleanups 

take too long and cost too much. The good news is that Mr. Pruitt has put a high priority 

on completing Superfund sites in a timely and cost-effective manner. Also, my belief is 

that EPA career staff are competent, but what is often missing are EPA presidentialappointees who can ensure that Superfund sites are dealt with effectively. 

Specifically, the President and Congress need to get the new Assistant Administrator for 

Land and Emergency Management (OLEM) in place . As such, this AA has the final 
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29742.020

authority to approve Superfund cleanups. In this position, we need a person with 

technical and project management skills and a strong bent toward environmental results 

and common sense. 

The idea is not for the AA to micro-manage every Superfund site, but to see that major 

site schedules are adhered to and make, if necessary, final decisions for such complex 

matters as site remedies. 

The key Superfund subordinates for the AA should continue to be the 10 EPA regional 

administrators and Superfund chiefs. No longer should the making of Records of 

Decision (site remedies) be made by middle level EPA personnel and committees. 

Here are the other steps needed to fix Superfund. 

The key is that Superfund remediation is not an exact science, which is why experienced 

senior managers are needed to deal with such disparate Superfund items as waste toxicity 

issues as well as cost-effectiveness and community and state interactions with EPA. 

Second, EPA should promptly deal with the most important Superfund problem- the 

lack of firm deadlines for completing projects. It is actually unusual to have clear 

deadlines for remedy selection and site completion activities. 

Also, EPA senior management should insist that remedy selection for Superfund sites 

should take place in less than 30 months. The assistant administrator can always allow 

somewhat more time for very complex sites, like remediation of nuclear weapons 

facilities. 

Unfortunately, at many sites, the study work meanders around for 5 to 15 years without 

even selecting a cleanup remedy. As for costs, some recent studies, ranging from New 

Jersey to Oregon, have exceeded $100 million. 

Frankly, much of the costly activities are because Superfund has become a lucrative 

source of work for lawyers and consultants. At a Senate hearing a number of years ago I 

was asked by the late Senator Frank Lautenberg (D-N.J.) why, after all these years, 

Superfund cleanups take so long. My answer: At many sites I find few people who seem 

to really want to finish the project. It is a very lucrative program for many. 

One answer to this problem is to ensure that both EPA and the potentially responsible 

parties need to ensure that the contracted work is only focused on information needed to 

select the best site remedy. 

Third, the most effective part of the Superfund program has been "emergency removals" 

and other early actions, which directly correct obvious environmental problems. These 

early cleanup activities also inform later, more extensive work activities 
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Unfortunately, the EPA bureaucracy and lawyers for the potentially responsible parties 

(PRPs) often stymie these early action efforts with such interminable debates as to who 

will pay what. 

Fourth, PRPs caught up in Superfund should be more active and not just with their 

contractors, some of whom tend to string out the process. A more cost-effective approach 

by PRPs would be to make proposals to EPA for good remedies and then offer to conduct 

the cleanup work themselves. (They will have to pay anyway someday.) 

Over the years, a troubling trend has been for many companies to turn Superfund over to 

their legal departments. The resultant outside lawyers have increasingly become the de 

facto Superfund site managers. 

The EPA should get rid of"remedy review boards" which were set up years ago to make 

sure that the "right" site remedy was selected. In other words, EPA middle managers 

from around the country can second-guess more senior local managers regarding the 

remedy. This adds much more time to remedy selection and further confuses the EPA 

chain of command. 

Finally, the Congress may need modest legislative activities to ensure some of the fixes 

noted in this testimony, particularly those related to deadlines for major site remediation 

activities. Some specific suggestions: The cost and time limits for emergency removals 

should be increased from two to five million dollars and one year to two years to 

maximize these cost effective measures. 

In addition, within 18 months of a Superfund site listing EPA should identify any early 

responses needed to deal with obvious contamination problems. The site remedial 

investigation/feasibility study (RI/FS) should nonnally be completed in no more than 30 

months of site listing on the Superfund list. Finally, a site ROD (remedy) should be 

issued no later than 12 months of completion of the RT/FS. 

Looking ahead, Superfund sites should increasingly be taken on by appropriate state 

superfund programs, which are usually much less costly than EPA and closer to the 

problems. For example, unlike air and water issues, waste site problems usually involve a 

matter of acres and only one state. 

Mr. Chairman, I will be happy to answer any questions that you or other members may 

have. 
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One-Page Summary of Testimony: 

Energy and Commerce Committee 

Subcommittee on Environment 

Testimony of James McKenna 

January 18, 2018 

Witness Name: James McKenna, Portland Harbor Superfund Policy Analyst 

Witness Organization: Office of Oregon Governor Kate Brown 

Name and Date of Hearing: Modernizing the Superfund Cleanup Program, January 18, 2018 

Subcommittee: Energy and Commerce Committee; Subcommittee on Environment 

Main Points of Testimony: 

The federal Superfund Program must remain strong and viable in order to live up to its promise of protecting 

public health and the environment, and ensuring people live and work in healthy, vibrant places. In that spirit the 

State of Oregon recommends: 

Increasing the Superfund program budget to ensure timely resolution of existing and new NPL sites. 

Maintaining adequate staffing and technical expertise at the Headquarter and Regional levels. 

Reinstating a revenue source(s) to replenish the "Fund" for orphan sites (the State of Oregon is spending 

nearly $5-million/year on orphan sites). 

For mega-Superfund Sites, breaking the sites up into manageable Operable Units. 

For sites with numerous PRPs, recognize the difficulty of negotiating one settlement with the entire PRP 

group. EPA should develop tools that give PRPs enough certainty so they can settle-out in ways that 

allow cleanup to move forward, while maintaining the government's need for prudent reopeners. And, 

Accommodating flexibility in cleanup design and implementation. EPA should work with PRPs and the 

community to appropriately accommodate flexibility in area-specific cleanup designs that are not 

inconsistent with the ROD, but which recognizes the unique conditions and likely future land uses at each 

location. 
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Energy and Commerce Committee 

Subcommittee on Environment 

Testimony of James McKenna 

January 18, 2018 

Chairman Shimkus, Ranking Member Tonka, and members of the subcommittee, thank you for providing me the 

opportunity to testify today on the Superfund Program. I am here representing the Office of Oregon Governor 

Kate Brown to discuss the Federal Superfund Program. Before I get into the details of my testimony please allow 

me to convey my background to demonstrate my expertise with superfund sites. 

I have been involved with the Superfund cleanups for over thirty years, starting as Environmental Coordinator 

with NASA's Jet Propulsion Laboratory in the 1980s. JPL had a contaminated groundwater plume adversely 

impacting the City of Pasadena water supply wells. Prior to joining the Office of Oregon Governor Brown I owned 

and managed a private environmental consulting firm that focused primarily on cleanup of Superfund sites. 

Governor Brown supports the Federal Superfund Program. One of Oregon's most complex, the Portland Harbor 

Site, is critical for the vitality of the region's economy. The challenges of site cleanup for Portland Harbor are 

similar to those in many other sites across the country and I will present this committee with recommendations 

for improving the federal program to help sites like Portland Harbor and those in your districts and those of your 

colleagues. For Portland Harbor the Governor will ensure State agencies coordinate with EPA to adequately and 

timely reduce risks to the community, protect the environment, and uphold the polluter pays principle. It is also a 

high priority of the Governor that at-risk and underserved communities are not inordinately impacted or unjustly 

burdened by cleanup activities. 

Achieving this common vision calls for close coordination with Tribal governments, key stakeholders, local 

businesses, and the community. Governor Brown will therefore ensure the state retains a prominent seat at the 

table in regards to cleanup of the Portland Harbor. This level of coordination and leadership is vital considering 

the complexity of the Portland Harbor site: 
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Energy and Commerce Committee 

Subcommittee on Environment 

Testimony of James McKenna 

January 18, 2018 

Technical: The Willamette River is a large and dynamic system, and cleanup must address numerous 

contaminants from a multitude of legacy industrial operations and some on-going sources. Willamette 

River salmon and stealhead are Endangered Species, and hence limit the in-water work to about 4 

months per year. 

Regulatory: EPA manages the in-water sediment cleanup; DEQ oversees the upland and upstream source 

control efforts; the Army Corps of Engineers maintains the Federal Navigation Channel; and six sovereign 

Tribal Governments are engaged as Natural Resource Trustees. 

Legal: there are over 100 identified potential responsible parties (PRPs), including public and private 

entities. This includes federal and State agencies and departments, local governments, international 

corporations, and local small businesses. Most of the PRPs are participating in a private mediation to 

resolve their respective liabilities. 

The Portland Harbor Superfund Site was placed on the National Priorities List in 2000. Field studies were 

conducted and reports generated through 2015. EPA presented their Proposed Plan to the public in mid-2016, 

and issued its Record of Decision in January 2017. 

Cleanup of Portland Harbor is critical to revitalizing and sustaining a vibrant regional economy. The harbor is an 

industrial sanctuary and an economic engine for regional industries and agriculture. The Harbor supports 

approximately 30,000 direct jobs and 30,000 induced or indirect jobs. Annually this translates to approximately 

$4-billion in payroll, $400-million in State and local taxes, and $13-billion in business revenue. Maintaining a 

healthy, safe, and clean working harbor is essential to all Oregonians. 

Portland Harbor benefits from unique transportation interconnectedness: North to south and east to west 

interstate highways and railroads; a deep-water draft federal navigation channel; and an international airport. 

Nowhere else in the State will you find this confluence of infrastructure. That being said, economic studies 
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Energy and Commerce Committee 

Subcommittee on Environment 

Testimony of James McKenna 

January 18, 2018 

indicate the Portland region needs to add approximately 10,000 industrial family-wage jobs in next 15 to 20 years. 

To do so will require reinvestment and revitalization of hundreds-of-acres of under-utilized or vacant industrial 

lands in and near Portland Harbor. Redevelopment of these Brownfield sites will require a cooperative effort of 

private businesses, and local, State and federal agencies and resources. Oregon has a track record of successfully 

implementing complex Brownfield projects, as evidence by the recent Howard Orlean Excellence Award for 

redevelopment of the former Reynolds Aluminum site (a Superfund Site east of Portland and along the Columbia 

River). 

Implementation of EPA's Record of Decision, along with the resolution of PRP liabilities, will help lift the cloud of 

economic uncertainty that has hung over Portland Harbor since being listed as a Superfund Site in 2000. It has 

been one year since the ROD was released and we have momentum in moving the project towards final cleanup: 

four private PRPs have signed an Order with EPA to conduct the baseline sampling; Northwest Natural Gas has 

signed an Order to complete the cleanup design at their GASCO facility; the City of Portland is partnering with 

several private PRPs and they have signed an Order to finalize the cleanup design at River Mile-llEast; the Port of 

Portland is negotiating an Order with EPA for final design of cleanup at Terminal-4; and the State of Oregon is in 

preliminary discussions with EPA regarding Orders to design cleanup at Willamette Cove, generate a 

comprehensive Data Management Plan, and develop the Institutional Controls Implementation and Assurance 

Plan. 

The federal Superfund Program must remain strong and viable in order to live up to its promise of protecting 

public health and the environment, and ensuring people live and work in healthy, vibrant places. In that spirit the 

State of Oregon recommends: 

Increasing the Superfund program budget to ensure timely resolution of existing and new NPL sites. 

Maintaining adequate staffing and technical expertise at the Headquarter and Regional levels. 
69 

Mr. SHIMKUS. That’s the kind of testimony we like to hear. We 

appreciate your time. 

The chair now recognizes the gentleman from Oregon, Mr. 

McKenna. Welcome. It’s good to see you again. You’re recognized 

for 5 minutes. 

STATEMENT OF JAMES MCKENNA 

Mr. MCKENNA. Thank you. 

Chairman Shimkus, Ranking Member Tonko, and members of 

the subcommittee, I thank you and Governor Brown thanks you for 

providing this opportunity to provide testimony today on modernizing the Superfund program. 

Before I get into the details of the testimony, please allow me to 

convey a little bit of my background and my expertise in Superfund. 

I’ve been involved with Superfund sites for over 30 years starting 

off as an environmental coordinator for NASA’s Jet Propulsion Laboratory in Pasadena which, in and of itself, had a contaminated 

groundwater plume impacting the city of Pasadena water wells. 

Prior to joining Governor Brown’s Natural Resource Policy Office, 

I was a private consultant, owned my own firm doing primarily 

Superfund work. 

I know my time to testify is limited so you have my written material. So I am going to cut to the chase of the issues I want to 

bring forth in terms of improving the program. 

Any attempts to modernize or revamp the Superfund program 

should consider four existing principles. In other words, these are 

principles we wouldn’t support changing in any way, shape, or form 

and that is, number one, the ‘‘polluter pays’’ principle—that the 

polluters each pay their fair share at the end of the day for the contamination and not put that burden on the public. 

Number two, there could be no adverse impact or unjust burden 

placed on at-risk or underserved communities in the neighborhood 

of Superfund sites. In fact, we should be looking for ways to develop family wage jobs for those at-risk community members associated with the cleanup as the cleanup is progressing to see if we 

could actually do job force, work force development to get them involved in the cleanup as well as the Brownfield redevelopment 

sites’ post-cleanup. 

Number three, there’s no cookie cutter approach to revamping 

Superfund. All these sites are very unique. Portland Harbor is a 

very large mega complex site and so the fixes for a Portland Harbor-like site are not necessarily going to be the appropriate fixes 

for smaller Superfund sites. We need to keep that in mind. There’s 

no cookie cutter approach. 

And number four, any efforts to reduce or obviate the timely and 

meaningful input of the public and the Native American sovereign 

governments at these sites would not be acceptable to the State of 

Oregon. 

We have a very complex site. We have numerous community involvement. Community groups have been involved since the beginning in 2000. We have six Native American tribes, all sovereign 

governments that have been actively involved. The Nez Perce, Yakima, Warm Springs, Umatilla, Grand Ronde, and Siletz are all at 

70 

the table. There need to be seats maintained at that table for those 

parties to make sure that they have meaningful input in the process. 

So that being said, the State of Oregon has a list of proposed 

modifications to the program. I will go through this list very quickly and then be happy to answer questions at the end. 

We believe that we need to increase the funding for Superfund. 

That’s been a part of the conversation here this morning. The 

Superfund program needs a sufficient budget in order to ensure 

that there’s adequate staffing and resources available at the headquarters and regional offices to push these NPL sites to closure. 

We need to reinstate a revenue source—the Superfund tax—to 

replenish the fund for the ‘‘orphan’’ sites. Again, the topic has come 

up a number of times this morning. We need to have the orphan 

fund money available for those sites where there are no viable 

PRPs to do the cleanup. 

For mega Superfund sites, the complex ones like Portland Harbor, we think EPA should consider breaking those sites up into 

manageable areas. Some call them operable units or some form of 

smaller areas. So you could attack the sites and get to cleanups 

sooner than later. 

And then for sites with numerous PRPs, again, focusing on the 

Portland Harbor site, we have 19 Superfund sites in Oregon but, 

obviously, Portland Harbor is the most complex for a number of 

reasons. 

We have over a hundred PRPs at that site. We recognize the difficulty of EPA negotiating one settlement offer with all of those 

PRPs at once. So we suggest that EPA develop tools to give the 

PRPs enough certainty that they can settle out their respective liabilities and move on with cleanup while maintaining the government’s need for prudent reopeners of that cleanup. 

And then, finally, accommodating flexibility and cleanup design 

at each specific location. So a site like Portland Harbor where you 

got about 14 different cleanup areas each one will be unique. 

Our record of decision, which came out in January of 2017, accommodates flexibility at each of these sites. We promote that so 

that you can consider the unique conditions at each location and 

the future land use and groundwater uses at those locations. 

I know I am running out of time, but I am happy to answer questions. I have a lot of other information to talk about in terms of 

Portland Harbor, in terms of Brownfield redevelopment. 

[The prepared statement of Mr. McKenna follows:] 

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Energy and Commerce Committee 

Subcommittee on Environment 

Testimony of James McKenna 

January 18, 2018 

Reinstating a revenue source(s) to replenish the "Fund" for orphan sites (the State of Oregon is spending 

nearly $5-million/year on orphan sites). 

For mega-Superfund Sites, breaking the sites up into manageable Operable Units. 

For sites with numerous PRPs, recognize the difficulty of negotiating one settlement with the entire PRP 

group. EPA should develop tools that give PRPs enough certainty so they can settle-out in ways that 

allow cleanup to move forward, while maintaining the government's need for prudent reopeners. And, 

Accommodating flexibility in cleanup design and implementation. EPA should work with PRPs and the 

community to appropriately accommodate flexibility in area-specific cleanup designs that are not 

inconsistent with the ROD, but which recognizes the unique conditions and likely future land uses at each 

location. 

Sites with low-level risk or in the long-term Operations and Maintenance mode could be delisted and 

transferred to State environmental agencies that are willing and able to oversee these sites. 

Thank you for allowing me to testify today, and I am happy to answer questions. 
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Testimony of Debbie Mans 

NY/NJ Baykeeper, Executive Director and Baykeeper 

Co-Chair Passaic River Community Advisory Group 

January 18, 2018 

U.S. Congress House of Representatives 

Committee on Energy and Commerce, Subcommittee on Environment 

SUMMARY 

• My name is Debbie Mans and I am the co-chair of the Passaic River Community Advisory 

Group or CAG. I am also the Executive Director and Baykeeper for NY /NJ Baykeeper. NY /NJ 

Baykeeper was founded in 1989 to protect, preserve and restore the NY Harbor Estuary, 

which includes the lower Passaic River. NY /NJ Baykeeper holds the Technical Advisory 

Grant (TAG) for the Passaic River Superfund site. 

• The Passaic River Superfund site was first listed on the Superfund National Priorities list 

(NPL) in 1984, over 30 years ago, and includes 17 miles of the Passaic River, Newark Bay, 

and portions of the Hackensack River, Arthur Kill and Kill van Kull. 

• In March 2016, a Record of Decision was selected for the lower 8.3 miles of the River. The 

cleanup plan calls for dredging approximately 3.5 million cubic yards of contaminated 

sediment, bank to bank, and will cost $1.36 billion. 

• The EPA recently listed the Diamond Alkali Co. (aka Upper Lower Passaic) section of the 

Superfund site as a site targeted for "immediate and intense action." 

• Recent announcements on the Superfund program by EPA Headquarters on increased 

involvement and shifting decision-making authority would appear to add a layer of 

bureaucracy, rather than make processes more efficient at EPA. 

• The Superfund Task Force Recommendations report raises concerns with the emphasis on 

adaptive management, reuse or redevelopment of Superfund sites, and reduced oversight 

and the use of independent third parties to oversee certain aspects of the PRP lead 

cleanups. 

• It is essential that human health and environmental protection be the top priority for taking 

action at Superfund sites. 

• It is critical to keep the Superfund public participation program intact, through the use of 

CAGs, TAGs and other technical assistance provided by the EPA. 

• Finally, it is important to note that while Administrator Pruitt has stated that the Superfund 

program is a cornerstone of the work that EPA performs for citizens and communities 

across the nation, President Trump has proposed slashing the EPA budget by 31%. 
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Testimony of Debbie Mans 

NY /NJ Baykeeper, Executive Director and Baykeeper 

Co-Chair Passaic River Community Advisory Group 

January 18, 2018 

U.S. Congress House of Representatives 

Committee on Energy and Commerce, Subcommittee on Environment 

My name is Debbie Mans and I am the co-chair of the Passaic River Community Advisory Group 

or CAG. The CAG provides advice and recommendations to the Environmental Protection 

Agency and its Partner Agencies to help ensure a more effective and timely cleanup and 

restoration of the lower Passaic River. In 2015, the CAG won the Community Involvement 

Award from the US Environmental Protection Agency (EPA), a national award that recognizes 

outstanding achievements in environmental protection. 

I am also the Executive Director and Baykeeper for NY/NJ Baykeeper. NY/NJ Baykeeper was 

founded in 1989 to protect, preserve and restore the NY Harbor Estuary, which includes the 

lower Passaic River. NY/NJ Baykeeper holds the Technical Advisory Grant (TAG) for the Passaic 

River Superfund site. 

I am here today to represent the communities that have been harmed by the pollution in the 

Passaic River for many decades. 

This site was first listed on the Superfund National Priorities List (NPL) in 1984, over 30 years 

ago. Many members of our CAG can still remember when the federal and state agencies 

descended into their neighborhood in protective gear, sweeping the streets and local farmer's 

stand for dioxin dust. 

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Dioxin, pesticides and other hazardous substances were found in the soil and groundwater at 

80-120 Lister Avenue, the former location of the Diamond Alkali site. Dioxin, polychlorinated 

biphenyls (PCBs), metals, polycyclic aromatic hydrocarbons (PAHs) and pesticides are found in 

sediment in the Lower Passaic River. The primary polluter on the River was a company called 

Diamond Alkali, which produced Agent Orange during the Vietnam War. A by-product of this 

production was dioxin, which was shoveled off the bulkhead next to the plant into the River. 

Tidal action has spread dioxin, along with a suite of other contaminants, throughout the lower 

17 miles of the Passaic River, Newark Bay and portions of the Hackensack River, Arthur Kill and 

Kill van Kull, all of which lie in the NY Harbor Estuary and the port area surrounding New York 

City. 

Over the years the cleanup had progressed slowly along, primarily consisting of a constant back 

and forth negotiation between the Responsible Parties and the EPA over sampling locations and 

methodologies, sampling results, new-fangled ideas to "clean" the River, fish swaps or 

recommendations to "let the River heal itself." The recalcitrance of the PRPs was further 

amplified by the lack of funds to allow the EPA to move forward with the cleanup itself due to 

the lapse of the Superfund tax. 

When the Obama Administration arrived in 2009, the community knew it had a chance to really 

achieve a timely and comprehensive cleanup plan and in the Fall of 2009 instituted the CAG. 

Since that time, we have been meeting on a near monthly basis, in the basement of a Newark 

church, to advise and push for a cleanup that would make it safe for people to fish and crab 

from the River. 

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Right now, it is illegal to catch a blue claw crab from the River and there is a "Do Not Eat" 

advisory in place for all fish and shellfish in the tidal portion of the Passaic River because of the 

potential to cause cancer in humans. 

This risk to public health is unacceptable. 

In March 2016, a Record of Decision was finally selected for the lower 8.3 miles of the River, the 

most contaminated section of the Superfund site and the source for ongoing contamination 

spreading throughout NY Harbor Estuary. The cleanup plan calls for dredging approximately 3.5 

million cubic yards of contaminated sediment, bank to bank. After dredging, an engineered cap 

will be placed over the entire lower eight miles of the River. The contaminated sediment will 

be dewatered locally and transported off-site for disposal at a licensed facility. The estimated 

cost of the remedy is $1.38 billion. 

The Mayor of the City of Newark, both of New Jersey's United States Senators, all the 

Congressional Representatives in the region, and local community members celebrated the 

announcement. Design of the remedy is currently underway. 

However, the remainder of the Superfund site- an additional9 miles of waterway upriver and 

the Newark Bay- is still under investigation. Recently, the Diamond Alkali Co. (aka Upper lower 

Passaic) section was listed as a Superfund site targeted for "immediate and intense action" by 

the EPA. This is the upriver portion of the Superfund site. As described in EPA materials, "EPA 

considered sites that can benefit from Administrator Pruitt's direct engagement and have 

identifiable actions to protect human health and the environment." 

4 
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Further inquiries to regional staff and a thorough reading of the EPA's "Questions and Answers" 

document has not produced a clearer understanding of what this designation means for us in 

the impacted communities. 

This announcement, coupled with the May 2017 announcement and memo by Administrator 

Pruitt revising EPA's delegation of authority to ensure decision making comes straight from the 

Administrator to select remedies estimated to cost $50 million or more, rather than the 

Assistant Administrator for Office of Land and Emergency Management and the Regional 

Administrators, gives me pause. The May 2017 memo further states that "as part of 

effectuating this adjustment to the remedy selection process, I ask that you involve the 

Administrator's office early-on and throughout the process of developing and evaluating 

alternatives and remedy selection." 

This would appear to add a layer of bureaucracy, rather than make processes more efficient at 

EPA. Now, the regional offices must involve the EPA Headquarters early and often throughout 

the process. Now, the technical experts at the regional offices must confer with political 

appointees based in Washington, DC, on developing and evaluating cleanup alternatives and 

remedy selections for sites. This makes no sense to the stakeholders working locally on these 

cleanups. The people who know these sites the best are the local EPA technical experts, who 

come to our community meetings and inspect the sites, not someone sitting at a desk hundreds 

of miles away. 

My best guess as to why the "Upper Lower Passaic" site is on the list of Superfund sites 

targeted for immediate and intense action is that EPA Headquarters would like to test out 

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adaptive management through use of an early action being promoted by the Potentially 

Responsible Parties (PRPs). As outlined in the Superfund Task Force Recommendations, 

"[u]nder an Adaptive Management strategy, Regions are encouraged to consider greater use of 

early and/or interim actions including the use of removal authority or interim remedies, to 

address immediate risks, prevent source migration, and to return portions of sites to use 

pending more detailed evaluations on other parts of the site." (See Strategy 2, page 2.) 

This concept was first proposed by the PRPs after EPA released the proposed plan in 2014 for 

the lower 8.3 miles of the River. The PRPs alternative cleanup plan was called the "Sustainable 

Remedy." Essentially, the plan called for hot spot removal of contaminated sediments in the 

River, with natural attenuation to let the River heal itself. This plan was so lacking in scientific 

basis, actual data, and protections to public health, it was not even included in the EPA's review 

of alternatives. 

What concerns me is that the PRPs are potentially getting another chance to move forward 

with this concept, now under the guise of a Task Force report and new directives from EPA 

Headquarters. Indeed, regional staff recently informed the CAG that the PRPs will be 

presenting on an alternative cleanup plan for the upper portion of the River during our 

February 2018 CAG meeting. This proposal will also be the subject of an upcoming 

Contaminated Sediments Technical Advisory Group (CSTAG) meeting in Region 2. 

The CAG will need to be convinced of the merit of this proposal and how it is different than the 

plan that was presented, and rejected by EPA, just a few years ago. On a contaminated 

sediment site like the Passaic River, it could be years before we understand how an early action 

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has reduced public health risks and, by then, how will we ever bring the PRPs back to the table 

to finish a cleanup? Short cuts could result in insufficient assessment of the contamination and, 

therefore, an incomplete cleanup. This may ultimately make it more difficult for sites to be 

used for other purposes than future industrial locations. 

The Superfund Task Force Recommendations raises further concerns with the emphasis on 

reuse or redevelopment of Superfund sites and reduced oversight and the use of independent 

third parties to oversee certain aspects of the PRP lead cleanups. 

First, it is essential that human health and environmental protection be the top priority for 

taking action at Superfund sites. Redevelopment should never supersede human health 

concerns. When our CAG members talk about future use of the Passaic River, they mention 

habitat restoration, new boat ramps, waterfront parks and other recreational amenities, they 

do not mention industrial redevelopment. The City of Newark recently cut the ribbon on the 

third phase of waterfront park along the River, with plans to expand. The Passaic River has 

been cut off from the community for decades due to pollution and industrial use, it is now time 

to restore a healthy River back to the community. This is the community priority and it must be 

respected by the EPA. 

Second, reduced oversight and the use of independent third parties to oversee certain aspects 

of site cleanup has been underway in New Jersey for several years. This program is called the 

Licensed Site Remediation Professional (LSRP} Program (see http://www.nj.gov/dep/srp/} and it 

requires that all remediations under state oversight in New Jersey proceed under the 

supervision of a LSRP. It is important to bear in mind that the general tendency in New Jersey is 

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to ask EPA to take over more complicated contaminated sites or sites where the PRP is not 

cooperating, so simply transferring a LSRP-type program over to the Superfund program would 

not be appropriate. 

The implementation of the LSRP program in New Jersey, while potentially addressing smaller 

contaminated sites more quickly, has lead to less transparency and public engagement. This is 

due to the fact that our state agency, the New Jersey Department of Environmental Protection 

(NJDEP), no longer has immediate access to cleanup plans, sampling results or other technical 

reports because they are generated by a consultant hired by the property owner to conduct the 

investigation and then subsequently submitted to NJDEP, thus finally making them finally 

publically available. The onus is now on the public to work directly with multiple private 

consultants and property owners to get information, rather than one public agency. 

It is critical to keep the Superfund public participation program intact, through the use of CAGs, 

TAGs and other technical assistance provided by the EPA. The Passaic River CAG has worked 

side-by-side with the EPA to develop Community Health and Safety Plans, local jobs, public 

participation guidelines, and meaningful comments on proposed cleanup plans. An engaged 

and educated public is an asset, not a burden. 

The Superfund Task Force Recommendations make short shrift of engaging partners and 

stakeholders. The recommendations, tacked on at the end of the report, can be summed up as 

identify stakeholders, talk to them and form an advisory committee. This is unacceptable and 

falls far short of where EPA already is for the Passaic River Superfund site. 

8 
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Finally, it is important to note that while Administrator Pruitt has stated that the Superfund 

program is a cornerstone of the work that EPA performs for citizens and communities across 

the nation, his own President has proposed slashing the EPA budget by 31%. 

The Trump Administration proposed cuts to the Superfund program of 2S% nationally, which 

would result in the loss of S36 staff slots. New Jersey has 114 Superfund sites, the most of any 

state and receives approximately 25% of the national budget, so cuts like this would be 

devastating to our communities. 

Thank you for allowing me to testify today on this critical public health issue. 

More information on the Community Advisory Group (CAG) and the Passaic River Superfund 

site can be found here: http:/ /ourpassaic.org/ 

9 
81 

Mr. SHIMKUS. Very good. Appreciate it, and thank you for your 

testimony. 

And now we’d like to turn to Ms. Debbie Mans. You’re recognized 

for 5 minutes. And I am very generous with the time so don’t feel 

too pressured. We can go over. 

STATEMENT OF DEBBIE MANS 

Ms. MANS. Thank you. 

So good morning. Thank you for this opportunity to testify. 

Again, my name is Debbie Mans and I am the Co-chair of the Passaic River Community Advisory Group, or CAG, and the CAG provides advice and recommendations to the EPA and its partner 

agencies to help ensure a more effective and timely cleanup and 

restoration of the Lower Passaic River. It’s a construct of the 

Superfund law. 

In 2015, our CAG won the Community Involvement Award from 

the U.S. EPA, a national award that recognizes outstanding 

achievements in environmental protection. 

I am also the Executive Director and Baykeeper for New York/ 

New Jersey Baykeeper, which works to protect, preserve, and restore the New York Harbor Estuary, which includes the Lower Passaic River, and we hold the technical assistance grant for the Passaic River Superfund site. 

I am here today to represent the communities that have been 

harmed by the pollution in the Passaic River. The site was first 

listed on the NPL in 1984, so I think we might win the bets here. 

Dioxin, PCBs, metals, PHs, and pesticides are found in the sediment of the Lower Passaic River and the primary polluter on the 

river was a company called Diamond Alkali, which produced Agent 

Orange during the Vietnam War, and they used to shovel the byproduct of that production, dioxin, off the bulkheads into the Passaic River. 

The Superfund site now consists of 17 miles of the Passaic River, 

Newark Bay, and other portions of New York Harbor, and over the 

years the cleanup has progressed slowly along, primarily consisting 

of a constant back and forth negotiation between the PRPs and the 

EPA over sampling locations and methodologies, sampling results, 

newfangled ideas to clean the river, fish swaps, or recommendations to let the river heal itself. 

The recalcitrants of the PRPs was further amplified by the lack 

of funds to allow EPA to move forward with the cleanup itself due 

to the lapse of the Superfund tax. 

In March 2016, a record of decision was selected for the lower 8.3 

miles of the river, the most contaminated section of the Superfund 

site and the source for ongoing contamination, spreading throughout the New York Harbor estuary. 

However, the remainder of the Superfund site—an additional 9 

miles of waterway upriver in Newark Bay—is still under investigation, and recently the Diamond Alkali Company, AK Upper Lower 

Passaic Section, was listed as a Superfund site targeted for immediate and intense action by EPA Administrator Pruitt. This is the 

upriver portion of the Superfund site. 

This announcement, coupled with the May 2017 announcement 

by Administrator Pruitt revising EPA’s delegation of authority to 

82 

ensure that decision making comes straight from the administrator 

to select remedies estimated to cost $50 million or more—and we 

will be over that amount—rather than the assistant administrator 

and the regional administrators gives me pause. 

The May 2017 memo further states that as part of effectuating 

this adjustment to the remedy selection process I ask that you involve the administrator’s office early on and throughout the process 

of developing and evaluating alternatives and remedy selection. 

This would appear to add a layer of bureaucracy rather than make 

processes more efficient at EPA. Now the regional offices must involve EPA headquarters early and often throughout the process. 

Now technical experts at the regional offices must confer with political appointees based in Washington, D.C. on developing and 

evaluating cleanup alternatives and remedy selections per site. 

This makes no sense to the stakeholders on the ground. The people 

who know these sites the best are the local EPA technical experts 

who come to our community meetings and inspect the sites. My 

best guess as to why the Upper Passaic site is on the list of Superfund sites targeted for immediate and intense action is that EPA 

headquarters would like to test out adaptive management, a strategy outlined in the task force report for the use of an early action 

being promoted by the PRP. 

What concerns me is that the PRPs are potentially getting another chance to move forward with a concept that was earlier reviewed and rejected by the EPA due to lack of scientific basis and 

protections to public health. 

Now, under the guise of a task force report and new directives 

from the headquarters, indeed, regional staff recently informed us 

that our CAG will be updated on this potential cleanup proposal at 

our February CAG meeting and the proposal was also a subject of 

an upcoming Contaminated Sediments Technical Advisory Group, 

CSTAG, meeting in Region Two. 

On a contaminated site like the Passaic River it could be years 

before we understand how an early action has reduced public 

health risks and by then how will we ever bring the PRPs back to 

the table to finish a cleanup. 

One last point on the emphasis on reuse of Superfund sites, in 

New Jersey we’ve had for several years a private sector program 

that our state Agency delegates to private consultants to do cleanup of sites. It’s called the Licensed Site Remediation Professional 

Program, and simply transferring a program like this over to sites 

that are Superfund sites would be inappropriate. 

Generally, in New Jersey Superfund sites are, as we talked 

about, the last result, and they ask the EPA to take over sites that 

are very complicated or the PRP is not cooperating. 

This LSRP program in New Jersey has actually resulted in less 

transparency and public engagement because the use of private 

consultants with less Agency oversight results in less public participation and transparency. 

So I have the rest of my information in my written testimony. 

Thank you again for this opportunity. 

[The prepared statement of Ms. Mans follows:] 

83 


29742.036

Testimony of Debbie Mans 

NY/NJ Baykeeper, Executive Director and Baykeeper 

Co-Chair Passaic River Community Advisory Group 

January 18, 2018 

U.S. Congress House of Representatives 

Committee on Energy and Commerce, Subcommittee on Environment 

SUMMARY 

• My name is Debbie Mans and I am the co-chair of the Passaic River Community Advisory 

Group or CAG. I am also the Executive Director and Baykeeper for NY/NJ Baykeeper. NY/NJ 

Baykeeper was founded in 1989 to protect, preserve and restore the NY Harbor Estuary, 

which includes the lower Passaic River. NY /NJ Baykeeper holds the Technical Advisory 

Grant (TAG) for the Passaic River Superfund site. 

• The Passaic River Superfund site was first listed on the Superfund National Priorities List 

(NPL) in 1984, over 30 years ago, and includes 17 miles of the Passaic River, Newark Bay, 

and portions of the Hackensack River, Arthur Kill and Kill van Kull. 

• In March 2016, a Record of Decision was selected for the lower 8.3 miles of the River. The 

cleanup plan calls for dredging approximately 3.5 million cubic yards of contaminated 

sediment, bank to bank, and will cost $1.36 billion. 

• The EPA recently listed the Diamond Alkali Co. (aka Upper Lower Passaic) section of the 

Superfund site as a site targeted for "immediate and intense action." 

• Recent announcements on the Superfund program by EPA Headquarters on increased 

involvement and shifting decision-making authority would appear to add a layer of 

bureaucracy, rather than make processes more efficient at EPA. 

The Superfund Task Force Recommendations report raises concerns with the emphasis on 

adaptive management, reuse or redevelopment of Superfund sites, and reduced oversight 

and the use of independent third parties to oversee certain aspects of the PRP lead 

cleanups. 

• It is essential that human health and environmental protection be the top priority for taking 

action at Superfund sites. 

• It is critical to keep the Superfund public participation program intact, through the use of 

CAGs, TAGs and other technical assistance provided by the EPA. 

• Finally, it is important to note that while Administrator Pruitt has stated that the Superfund 

program is a cornerstone of the work that EPA performs for citizens and communities 

across the nation, President Trump has proposed slashing the EPA budget by 31%. 
84 


29742.037

Testimony of Debbie Mans 

NY /NJ Baykeeper, Executive Director and Baykeeper 

Co-Chair Passaic River Community Advisory Group 

January 18, 2018 

U.S. Congress House of Representatives 

Committee on Energy and Commerce, Subcommittee on Environment 

My name is Debbie Mans and I am the co-chair of the Passaic River Community Advisory Group 

or CAG. The CAG provides advice and recommendations to the Environmental Protection 

Agency and its Partner Agencies to help ensure a more effective and timely cleanup and 

restoration of the lower Passaic River. In 2015, the CAG won the Community Involvement 

Award from the US Environmental Protection Agency (EPA}, a national award that recognizes 

outstanding achievements in environmental protection. 

I am also the Executive Director and Baykeeper for NY/NJ Baykeeper. NY/NJ Baykeeper was 

founded in 1989 to protect, preserve and restore the NY Harbor Estuary, which includes the 

lower Passaic River. NY/NJ Baykeeper holds the Technical Advisory Grant (TAG) for the Passaic 

River Superfund site. 

I am here today to represent the communities that have been harmed by the pollution in the 

Passaic River for many decades. 

This site was first listed on the Superfund National Priorities List (NPl) in 1984, over 30 years 

ago. Many members of our CAG can still remember when the federal and state agencies 

descended into their neighborhood in protective gear, sweeping the streets and local farmer's 

stand for dioxin dust. 

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29742.038

Dioxin, pesticides and other hazardous substances were found in the soil and groundwater at 

80-120 Lister Avenue, the former location of the Diamond Alkali site. Dioxin, polychlorinated 

biphenyls (PCBs), metals, polycyclic aromatic hydrocarbons (PAHs) and pesticides are found in 

sediment in the Lower Passaic River. The primary polluter on the River was a company called 

Diamond Alkali, which produced Agent Orange during the Vietnam War. A by-product of this 

production was dioxin, which was shoveled off the bulkhead next to the plant into the River. 

Tidal action has spread dioxin, along with a suite of other contaminants, throughout the lower 

17 miles of the Passaic River, Newark Bay and portions of the Hackensack River, Arthur Kill and 

Kill van Kull, all of which lie in the NY Harbor Estuary and the port area surrounding New York 

City. 

Over the years the cleanup had progressed slowly along, primarily consisting of a constant back 

and forth negotiation between the Responsible Parties and the EPA over sampling locations and 

methodologies, sampling results, new-fangled ideas to "clean" the River, fish swaps or 

recommendations to "let the River heal itself." The recalcitrance of the PRPs was further 

amplified by the lack of funds to allow the EPA to move forward with the cleanup itself due to 

the lapse of the Superfund tax. 

When the Obama Administration arrived in 2009, the community knew it had a chance to really 

achieve a timely and comprehensive cleanup plan and in the Fall of 2009 instituted the CAG. 

Since that time, we have been meeting on a near monthly basis, in the basement of a Newark 

church, to advise and push for a cleanup that would make it safe for people to fish and crab 

from the River. 

3 
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29742.039

Right now, it is illegal to catch a blue claw crab from the River and there is a "Do Not Eat" 

advisory in place for all fish and shellfish in the tidal portion of the Passaic River because of the 

potential to cause cancer in humans. 

This risk to public health is unacceptable. 

In March 2016, a Record of Decision was finally selected for the lower 8.3 miles of the River, the 

most contaminated section of the Superfund site and the source for ongoing contamination 

spreading throughout NY Harbor Estuary. The cleanup plan calls for dredging approximately 3.5 

million cubic yards of contaminated sediment, bank to bank. After dredging, an engineered cap 

will be placed over the entire lower eight miles of the River. The contaminated sediment will 

be dewatered locally and transported off-site for disposal at a licensed facility. The estimated 

cost of the remedy is $1.38 billion. 

The Mayor of the City of Newark, both of New Jersey's United States Senators, all the 

Congressional Representatives in the region, and local community members celebrated the 

announcement. Design of the remedy is currently underway. 

However, the remainder of the Superfund site- an additional 9 miles of waterway upriver and 

the Newark Bay- is still under investigation. Recently, the Diamond Alkali Co. (aka Upper Lower 

Passaic) section was listed as a Superfund site targeted for "immediate and intense action" by 

the EPA. This is the upriver portion of the Superfund site. As described in EPA materials, "EPA 

considered sites that can benefit from Administrator Pruitt's direct engagement and have 

identifiable actions to protect human health and the environment." 

4 
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29742.040

Further inquiries to regional staff and a thorough reading of the EPA's "Questions and Answers" 

document has not produced a clearer understanding of what this designation means for us in 

the impacted communities. 

This announcement, coupled with the May 2017 announcement and memo by Administrator 

Pruitt revising EPA's delegation of authority to ensure decision making comes straight from the 

Administrator to select remedies estimated to cost $50 million or more, rather than the 

Assistant Administrator for Office of Land and Emergency Management and the Regional 

Administrators, gives me pause. The May 2017 memo further states that "as part of 

effectuating this adjustment to the remedy selection process, I ask that you involve the 

Administrator's office early-on and throughout the process of developing and evaluating 

alternatives and remedy selection." 

This would appear to add a layer of bureaucracy, rather than make processes more efficient at 

EPA. Now, the regional offices must involve the EPA Headquarters early and often throughout 

the process. Now, the technical experts at the regional offices must confer with political 

appointees based in Washington, DC, on developing and evaluating cleanup alternatives and 

remedy selections for sites. This makes no sense to the stakeholders working locally on these 

cleanups. The people who know these sites the best are the local EPA technical experts, who 

come to our community meetings and inspect the sites, not someone sitting at a desk hundreds 

of miles away. 

My best guess as to why the "Upper Lower Passaic" site is on the list of Superfund sites 

targeted for immediate and intense action is that EPA Headquarters would like to test out 

5 
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adaptive management through use of an early action being promoted by the Potentially 

Responsible Parties (PRPs). As outlined in the Superfund Task Force Recommendations, 

"[u]nder an Adaptive Management strategy, Regions are encouraged to consider greater use of 

early and/or interim actions including the use of removal authority or interim remedies, to 

address immediate risks, prevent source migration, and to return portions of sites to use 

pending more detailed evaluations on other parts of the site." (See Strategy 2, page 2.) 

This concept was first proposed by the PRPs after EPA released the proposed plan in 2014 for 

the lower 8.3 miles of the River. The PRPs alternative cleanup plan was called the "Sustainable 

Remedy." Essentially, the plan called for hot spot removal of contaminated sediments in the 

River, with natural attenuation to let the River heal itself. This plan was so lacking in scientific 

basis, actual data, and protections to public health, it was not even included in the EPA's review 

of alternatives. 

What concerns me is that the PRPs are potentially getting another chance to move forward 

with this concept, now under the guise of a Task Force report and new directives from EPA 

Headquarters. Indeed, regional staff recently informed the CAG that the PRPs will be 

presenting on an alternative cleanup plan for the upper portion of the River during our 

February 2018 CAG meeting. This proposal will also be the subject of an upcoming 

Contaminated Sediments Technical Advisory Group (CSTAG) meeting in Region 2. 

The CAG will need to be convinced of the merit of this proposal and how it is different than the 

plan that was presented, and rejected by EPA, just a few years ago. On a contaminated 

sediment site like the Passaic River, it could be years before we understand how an early action 

6 
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29742.042

has reduced public health risks and, by then, how will we ever bring the PRPs back to the table 

to finish a cleanup? Short cuts could result in insufficient assessment of the contamination and, 

therefore, an incomplete cleanup. This may ultimately make it more difficult for sites to be 

used for other purposes than future industrial locations. 

The Superfund Task Force Recommendations raises further concerns with the emphasis on 

reuse or redevelopment of Superfund sites and reduced oversight and the use of independent 

third parties to oversee certain aspects of the PRP lead cleanups. 

First, it is essential that human health and environmental protection be the top priority for 

taking action at Superfund sites. Redevelopment should never supersede human health 

concerns. When our CAG members talk about future use of the Passaic River, they mention 

habitat restoration, new boat ramps, waterfront parks and other recreational amenities, they 

do not mention industrial redevelopment. The City of Newark recently cut the ribbon on the 

third phase of waterfront park along the River, with plans to expand. The Passaic River has 

been cut off from the community for decades due to pollution and industrial use, it is now time 

to restore a healthy River back to the community. This is the community priority and it must be 

respected by the EPA. 

Second, reduced oversight and the use of independent third parties to oversee certain aspects 

of site cleanup has been underway in New Jersey for several years. This program is called the 

Licensed Site Remediation Professional {LSRP) Program {see http://www.nj.gov/deo/srp/) and it 

requires that all remediations under state oversight in New Jersey proceed under the 

supervision of a LSRP. It is important to bear in mind that the general tendency in New Jersey is 

7 
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29742.043

to ask EPA to take over more complicated contaminated sites or sites where the PRP is not 

cooperating, so simply transferring a LSRP-type program over to the Superfund program would 

not be appropriate. 

The implementation of the LSRP program in New Jersey, while potentially addressing smaller 

contaminated sites more quickly, has lead to less transparency and public engagement. This is 

due to the fact that our state agency, the New Jersey Department of Environmental Protection 

(NJDEP), no longer has immediate access to cleanup plans, sampling results or other technical 

reports because they are generated by a consultant hired by the property owner to conduct the 

investigation and then subsequently submitted to NJDEP, thus finally making them finally 

publically available. The onus is now on the public to work directly with multiple private 

consultants and property owners to get information, rather than one public agency. 

It is critical to keep the Superfund public participation program intact, through the use of CAGs, 

TAGs and other technical assistance provided by the EPA. The Passaic River CAG has worked 

side-by-side with the EPA to develop Community Health and Safety Plans, local jobs, public 

participation guidelines, and meaningful comments on proposed cleanup plans. An engaged 

and educated public is an asset, not a burden. 

The Superfund Task Force Recommendations make short shrift of engaging partners and 

stakeholders. The recommendations, tacked on at the end of the report, can be summed up as 

identify stakeholders, talk to them and form an advisory committee. This is unacceptable and 

falls far short of where EPA already is for the Passaic River Superfund site. 

8 
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Finally, it is important to note that while Administrator Pruitt has stated that the Superfund 

program is a cornerstone of the work that EPA performs for citizens and communities across 

the nation, his own President has proposed slashing the EPA budget by 31%. 

The Trump Administration proposed cuts to the Superfund program of 25% nationally, which 

would result in the loss of 536 staff slots. New Jersey has 114 Superfund sites, the most of any 

state and receives approximately 25% of the national budget, so cuts like this would be 

devastating to our communities. 

Thank you for allowing me to testify today on this critical public health issue. 

More information on the Community Advisory Group (CAG) and the Passaic River Superfund 

site can be found here: http://ourpassaic.org/ 

9 
92 

Mr. SHIMKUS. Thank you. 

And now we’ll turn to Katherine Probst, independent consultant. 

You are recognized for 5 minutes. Thank you for being here. 

STATEMENT OF KATHERINE PROBST 

Ms. PROBST. Thank you very much, members of the subcommittee, and thank you for inviting me to testify before you 

today. 

My testimony today is going to focus on three issues improving 

the effectiveness of the Superfund remedial program, estimating 

the funding needs for the Superfund program, and the Superfund 

task force recommendations. 

The first question that must be asked, and this has already come 

up many times today from both Republicans and Democrats, is why 

does it take so long to clean up sites on the NPL? It’s a great question and it’s really sad we don’t have any answers. At the end of 

fiscal year 2016, there were 441 nonfederal NPL sites that were 

not yet construction complete. 

Just over 40 percent of these sites were added to the NPL before 

fiscal year 2000. Some have been on the NPL since 1983. 

EPA needs to conduct an objective analysis to determine why 

these sites are still not construction complete in order to develop 

effective program reforms. 

Is the obstacle lack of funding, PRP inaction, bureaucratic morass, technical challenges, or something else? Until we know why 

these sites are taking so long, we really can’t develop solutions. 

And if it’s worth noting that more than half of remedial actions 

at NPL sites are PRP lead. Much more attention needs to be paid 

to whether at some sites PRPs are in fact responsible for lengthy 

cleanup durations. Second, the Agency needs to determine why 

there are still NPL sites where human exposure is not under control and what can be done about it. 

The most important goal for the remedial cleanup program is to 

protect public health. Yet, at the end of fiscal year 2016, there were 

over a hundred nonfederal NPL sites where human exposure was 

not under control and at another 150 sites there was insufficient 

information to determine if it was under control or not. 

This issue should be the top priority of the Superfund program. 

Interestingly, the July 25th, 2017 memo from Administrator Pruitt 

directs senior staff to ‘‘Prioritize and take action to expeditiously effectuate control over any site where the risk of human exposure is 

not fully controlled,’’ and to provide a report that identifies these 

sites and describes where such risks are expected to be controlled 

within 60 days, which I think would have been the end of September. 

No information on this effort has been made public. To address 

this pressing issue, EPA should issue a report lifting all nonfederal 

NPL sites where human exposure is not under control or whether 

there is insufficient data to determine if it is under control and detail what steps are needed to address potential exposure and when 

these actions will be implemented. 

Some have suggested there is little or no need for a federal cleanup program and that the program should be delegated to the 

states. Yet, few if any states have the financial resources to pay for 

93 

the cleanup of an average NPL site, much less a mega site with 

costs of $50 million or more. 

In fact, states have increasingly raised concerns about their ability to come up with the funds to cover the state cost share for fund 

lead actions at NPL sites. To address this issue, EPA should commission an independent analysis of the financial resources and 

NPL cost burden for all states and territories that have NPL sites. 

As Congress seeks to improve the Superfund program, one key 

question, which again has come up this morning is whether the 

program is receiving adequate annual appropriations to successfully carry out its responsibilities. 

EPA is not provided a public estimate of future funding needs to 

implement the program for many, many years. Congress should require that EPA issue an annual estimate of future costs of completing work at all nonfederal sites on the NPL. 

EPA should also develop an estimate of the amount needed for 

a PRP reserve fund. One of the important tools for EPA to get 

PRPs to agree to pay for and implement cleanups is the threat that 

if they don’t EPA will do so and then seek cost recovery or, potentially, treble damages. 

For this threat to be real, EPA needs to have a sizeable reserve 

fund to draw on, which is not the case. EPA should also investigate 

the potential savings of an optimal cleanup funding approach. 

Given the very real constraints on annual EPA funding for site 

construction, which was only $187 million for fiscal year 2017, it 

is almost certain that site cleanups are not funded in an optimal 

manner. 

This results in work at some sites being spread out over many 

years, likely increasing total costs. If an analysis of a different 

funding approach showed substantial cost savings, Congress could 

consider whether a few years of surge funding would be worthwhile 

as a mechanism to get some of the more expensive NPL site completed faster and at a total lower cost. 

Finally, as you know, in July EPA issued a Superfund task force 

report with 42 recommendations. As of yesterday, there has been 

no public information on the implementation status of any of the 

recommendations except for the release in December of the list of 

the 21 sites targeted for immediate and intense action, and yesterday the release of a list of 31 sites with high redevelopment potential. 

Congress, the public, other interested parties and, most importantly, residents living near NPL sites have no information on the 

status of the many task force recommendations nor on the impact 

of these recommendations on the day-to-day operations of the 

Superfund program. 

Neither has there been any information on exactly what it means 

to be included on the list of 21 sites targeted for immediate action. 

The lack of transparency is staggering. 

Thank you for asking me to testify before you today. Be happy 

to answer any questions. 

[The prepared statement of Ms. Probst follows:] 

94 


29742.045

Testimony of Katherine N. Probst 

before the 

Committee on Energy and Commerce, 

Subcommittee on the Environment 

Hearing on Modernizing the Superfund Cleanup Program 

January 18, 2018 

Members of the Subcommittee, thank you for inviting me to testify before you today. 

My name is Kate Probst, and I am an independent consultant. For over 20 years, I have 

worked as a researcher and policy analyst evaluating the Superfund program and making 

recommendations for improvement. I was the sole author of the report Superfund 2017: 

Cleanup Accomplishments and the Challenges Ahead, an independent report commissioned by 

the American Council of Engineering Companies that was released in June 2017. I was also the 

lead author and project director of the 2001 Report to Congress Superfund's Future: What Will 

It Cost? which was requested by the Senate and House Appropriations Committees and 

published by Resources for the Future (RFF). a Washington, DC think tank where I was a Senior 

Fellow for 20 years. The conclusions, recommendations, and opinions in my testimony today 

are mine and mine alone, and do not represent any other person or organization. I would 

appreciate it if the full text of the report Superfund 2017: Cleanup Accomplishments and the 

Challenges Ahead were submitted for the record. 

After presenting a few key facts about the status and funding of the Superfund remedial 

program, I have organized my testimony today around three key issues: 

1. Improving the effectiveness of the Superfund remedial program, that is, the 

program to address sites on the National Priorities List (NPL); 

2. Estimating the current and future funding needs for the Superfund program; and 

3. Administrator Pruitt's Superfund Task Force Recommendations report that was 

released July 25, 2017, as well as the December 8, 2017 list of 21 contaminated sites 

targeted for "immediate, intense action." 

All of the information presented today is for sites that are on the EPA's National 

Priorities list (NPL) that are not owned or operated by a federal agency, referred to inelegantly 

as "non-federal" sites. While federal facilities that are on the NPL are important and deserve 

attention, funding and management of these sites differ in important ways from non-federal 

sites, and thus present a host of different issues. Information on federal facilities, proposed 

(but not final) NPL sites, and Superfund Alternative sites is not included in any of the data or 

information herein. Most of the data is drawn from my recent report (Superfund 2017) and is 

as of the end of FY 2016. In some cases, I provide more recent information from the EPA 

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Superfund website or from data obtained at the end of May 2017, which is so noted. Finally, my 

testimony does not address the Superfund "removal" program. 

I. Status of NPL Cleanups at Non-Federal Facilities! 

1. At the end of FY 2016, over two-thirds of the 1,555 non-federal sites on the NPL either 

had been deleted from the NPL (meaning that all response actions had been 

completed and all cleanup goals had been achieved) or were construction complete 

(meaning all remedies had been constructed). As of the end of FY 2016, 24% (37S) of 

non-federal NPL sites had been deleted from the NPL and another 48% (739) were 

construction complete but not deleted, meaning that all remedies had been constructed 

but all cleanup objectives had not been achieved. The remaining 28% (441) of sites 

were in some stage of the remedial pipeline and require additional EPA work or 

oversight. See Figure 1, below. 

Figure 1. Non-Federal NPl Sites at the End of FY 2016 

800 

700 

600 

~ 500 

'0 

] 400 

E 

~ 

z 300 

200 

100 

Status 

Source: US EPA 

2. At the end of FY 2016, there were over 100 non-federal NPL sites where human 

exposure was not under control, and over 150 sites where there was insufficient 

information to determine if human exposure was under control (or not). Seven 

percent of non-federal NPL sites were categorized by EPA as "human exposure not 

1 Information from this section is not included in my oral statement. 

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29742.047

under control" at the end of FY 2016. At another 10% of non-federal NPL sites, there 

was insufficient data to determine whether human exposure was under control or not. 

3. Funding for the Superfund program has declined markedly since FY 2000, and it 

appears that the remedial program is facing a funding shortfall. In constant 2016 

dollars, annual Superfund appropriations declined from a high of $1.9 billion in FY 2000 

to a low of $1.09 billion in FY 2016, a decrease of 43% in real dollars, as shown in Figure 

2 below. Not surprisingly, funding for the remedial program declined as well, from a 

high of $749 million in FY 2004 to a low of $501 million in FY 2016, a decrease of 33% in 

constant dollars. 

Figure 2. Superfund Appropriations in Constant and Nominal Dollars, FY 200Q-FY 2016 

~ 

.!!! 

0 

0 

"5 

"' c: 

~ a; 

2.0 

1.5 

1.0 

0.5 

0.0 

Superfund Appropriations {Nominal Dollars) 

2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 

Fiscal Year 

Source: U.S. EPA 

Note: Funds from the American Recovery and Reinvestment Act (ARRA) of 2009 that were allocated to the 

Superfund program in FY 2009 are not included in this figure. 

Due to lack of funding, EPA has had to delay the start of some cleanups for 14 out of the 

past 17 years. Over the past five years, the end-of-year funding shortfalls for remedial action 

projects have averaged $67 million in constant 2016 dollars. Most likely, this is only the tip of 

the iceberg in terms of underfunding, as unfunded remedial action starts are among the easiest 

items to track. Much more difficult to quantify are more subtle results of funding constraints: 

sites not added to the NPL, site study and remedial projects spread out over a longer timeperiod, and other less visible actions not taken or delayed due to lack of resources. 

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29742.048

Funding for site-specific activities has also declined over time. Figure 3, below, shows 

the decline in remedial site allowances from FY 2002 through FY 2017 in constant 2016 dollars. 

The "remedial action site allowance" is the amount of annual appropriations from Congress 

that is available for fund-lead construction work at NPL sites. As documented below, in FY 

2017, this amount totaled approximately $187 million. 

Figure 3. Remedial Site Allowances in Constant 2016 Dollars, FY 2002- FY 2017 

$600.0 

tl!Rnmedia!Ar.tlonSitcAIIowance 

$500.0 

$400.0 

$200.0 

$1000 

$0.0 

Source: U.S. EPA 

Note: Additional funds lor remedial pipeline actions come from special accounts, PRP-Iead actions and 

state contributions. 

4. Responsible parties play a critical role paying for and implementing actions at nonfederal NPL sites. As envisioned in CERCLA, responsible parties take the lead- and pay 

for- many actions at non-federal NPL sites. Since FY 2000, potentially responsible 

parties (PRPs) have taken the lead for from 32% to 77% of the remedial action project 

starts each year, as shown in Figure 4 below. Discussion of how to improve the cleanup 

program needs to include the role of PRP-Iead cleanups. Encouraging more PRP-Iead 

cleanups and ensuring EPA has the enforcement resources and financial leverage to 

encourage PRP-cleanups is a critical element in an effective program. 

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Figure 4. Percentage of Remedial Action Project Starts at Non-Federal NPl Sites 

that were PRP and EPA lead, FY 2000 - FY 2016 

PRP lead 

EPAl.ead 

2000 2.001 2002 2003 2004 2005 }006 2007 2008 2009 2010 

Fiscal Year 

Source: U.S. EPA 

Note: Remedial actions starts are tracked at the project, not the operable unit, level. 

Percentages may not add to 100% due to rounding. 

II. Improving the Effectiveness of the Superfund Program 

2013 2014 2015 2016 

The Subcommittee's background memo for this hearing asks many salient questions about the 

Superfund program. Key among them is: "Are there changes that need to be made to make the 

program more efficient and effective?" The answer, is surely "yes." However, it is not possible to solve 

a problem if we do not know what is causing it. The Agency must invest, with the full support of the 

Subcommittee, in evaluating key aspects of the Superfund remedial program in order to develop 

effective and workable solutions to the issues of concern. Recommendations for improving the 

program should be based on sound, objective analysis- not on anecdotes about individual sites. 

While there are myriad issues once could address, I have chosen to focus my testimony on 

three key issues: duration of cleanup, sites where human exposure is not under control, and the need 

to better understand state financial capabilities to address NPL-caliber sites. 

1. Why does it take so long to complete cleanup at some of the sites on the NPl? 

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This is a great question. Unfortunately, we really don't have an answer. We know that some 

cleanups take a very long time, but we don't really know why. While it is true there are some very 

large and complex sites, it is not only these types of sites that are taking decades to address. And, even 

for the very large sites, it should be possible to identify the specific factors that have led to cleanup 

durations of 20 years or more. 

At the end of FY 2016, there were 441 non-federal NPL sites that were not yet construction 

complete. Just over 40% of these sites (189) were added to the NPL before FY 2000, and thus have 

been on the N Pl for almost 20 years, if not longer, as shown in Figure 5 below. 

Figure 5. Non-Federal NPL Sites that were not Construction Complete as of May 31, 2017 

by Year Added to Final NPL {1983 · 1999) 

11'1 Number of Sites Listed 

Iii! Number of Sites not Construction Complete as of 5/31/17 

0 0 

1983 1984 1985 1986 1987 1988 1989 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 

Fiscal Year 

Source: U.S. EPA 

Note: This is a different data set than used in the Superfund 2017 report, thus the total number of sites that are 

not construction complete is different than the end of FY 2016 data. 

Even more astonishing is the fact that 57 of the 403 sites listed in FY 1983 were still not 

construction complete at the end of May 2017. 

Investigating why these sites are still not construction complete is critical to 

understanding the causes of delay and to being able to develop meaningful program reforms. 

Is the obstacle to getting to construction complete lack of EPA funding? PRP inaction? 

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Bureaucratic morass? Technical challenges? Or something else? Examining the 189 sites listed 

on the NPL before FY 2000 that are not construction complete and determining why cleanup is 

taking so long and what kind of action- if any- could accelerate cleanup would be an efficient 

way to identify the factors delaying cleanup and provide useful input to making changes to 

improve program efficiency and effectiveness. And, it is worth noting, that while most of us 

(including me) tend to focus on lack of EPA funding or EPA inaction as a cause of delay, more 

than half of remedial actions at NPL sites are PRP-Iead. Much more attention needs to be paid 

to whether at some sites PRPs are in fact responsible for lengthy cleanup durations and, if so, 

what steps could be taken to address this issue. 

There is little or no useful information on the factors that result in cleanups taking so 

long. Any initiative by EPA to speed cleanup should begin by identifying the specific factors that 

are contributing to delay at NPL sites. Specific recommendations are below. The analyses 

below should all be made public to inform effective oversight and reform of the Superfund 

program. 

a) The Agency should develop a list of no more than 1S possible factors that lead to 

cleanup delay and identify which factor or factors are most important for each NPL site 

that is not yet construction complete. Possible factors include: Lack of adequate EPA 

funding, PRP-inaction, EPA-inaction, lack of adequate EPA staff, bureaucratic or process 

requirements, State concerns regarding their cost-share, State concerns about proposed 

remedy, other State issues, the sheer magnitude of the site and contamination, and 

technical limitations of available cleanup technologies, among other possibilities. Once 

this information is compiled EPA can: 1) seek to implement actions to accelerate 

cleanup, where appropriate, at individual sites, and 2) analyze the information to 

identify what appear to be the most important contributors to delay and develop 

specific actions to address these factors for the program as a whole. EPA should issue a 

report describing the factors that contribute to lengthy cleanup durations. 

b) The Agency should examine all sites that have been construction complete for 5 years or 

more but are not yet deleted, and conduct a similar analysis to identify the key factors 

making deletion elusive. A different list of factors will need to be developed, and should 

include: lack of effective technology, unenforceable institutional controls, and technical 

challenges, among others. EPA should issue a report on the factors making it difficult for 

sites to be deleted from the NPL and identify those specific sites that are unlikely to be 

deleted from the NPL for 10 years or more for purely technical reasons, i.e. not because 

of funding constraints or inaction. 

c) The Agency should develop or commission case studies of a handful of NPL sites that 

have been on the NPL for 15 years or more and are not construction complete to 

document the process, including examining the roles of EPA, states and responsible 

parties, describing the complexity of the sites, including the difficult technical and 

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scientific issues, describing the major contamination and risks at the sites, as well as the 

concerns of the affected community. The goal of the case studies should be to 

document what has happened in order to identify improvements to the way the 

remedial program is structured in the future, not to criticize the Agency or second guess 

past actions. It should be noted, there is no need for extremely long, academic quality 

case studies, the purpose is to amass a fact-based "picture" of actions at the sites over 

time to enable senior EPA management to identify which aspects of the cleanup process 

are in need of reform. Of the 17 final NPL sites (out of the 21) identified by 

Administrator Pruitt on December 8 as needing immediate attention, 11 were added to 

the NPL before 2000. These sites might be good candidates for case studies. That said, it 

would be helpful to evaluate the process at a few NPL sites that are less notorious as 

well. Again, this work should be made public. 

2. Why are there still sites on the NPL where human exposure is not under control, and 

what- if anything- can be done about it? 

The most important goal of the remedial cleanup program is to protect public health. 

Yet, at the end of FY 2016, there were over 100 non-federal NPL sites where human exposure 

was not under control, and at another 150 non-federal NPL sites, there was insufficient 

information to determine if human exposure was under control (or not). 

a) EPA should review all non-federal NPL sites where human exposure (1) is not under 

control, or (2) where there are insufficient data to determine if it is under control, to 

determine what steps would be needed to address the potential exposure. This 

assessment should identify the specific steps that are needed to bring human exposure 

under control, as well as whether the actions would be paid for and implemented by 

PRPs, EPA, states or some other entity, and include an estimate of the associated cost. 

For those sites with insufficient data, the report should detail why this is the case, and 

what steps would be needed to obtain sufficient data or information to make this 

determination. In addition, the assessment should examine whether there are technical 

obstacles to addressing these concerns and identify those specific sites where it is not 

technically possible to bring human exposure under control in the next decade, and 

why. For example, there are some sites where it is simply not possible to control 

exposure and to ensure compliance with institutional controls. EPA should make public 

the results of this analysis. 

This should be a top priority of the Superfund program. And in fact, a very similar task to 

that outlined above is the first item on page 2 of the July 25, 2017 memorandum from 

Administrator Pruitt laying out the next steps for reforming the Superfund program. The 

memorandum directs senior EPA staff to: 

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"Prioritize and take action to expeditiously effectuate control over any site where the 

risk of human exposure is not fully controlled. Within 60 days (Note: this would have 

been the end of September) regions should prepare a report to the chair of the task 

force that identifies these sites and describes when such risks are expected to be 

controlled. 2" 

Information has not been made public regarding whether this task has been 

implemented. If it has, information on the actions taken should be made public immediately, 

Information on this performance measure should be reviewed and updated at least monthly, 

and more frequently if needed, and should be communicated in a more user-friendly and 

accessible fashion than is currently the case on the EPA website. 

3. Understanding State Financial Capabilities for Addressing NPL-Caliber Sites 

Some have suggested there is little or no need for a federal cleanup program and that the 

program should be delegated to the states, or that states should take on a much larger role for NPL 

cleanups. Yet few (if any) states have the financial resources to pay for the cleanup of an NPL-caliber 

site, much less a mega site costing $50 million or more. 

a) To address this issue, as well as state concerns about their financial burden for cleanup 

and operation and maintenance costs at NPL sites, EPA should commission an 

independent analysis of the financial capacity, NPL cost share, and legal authorities of 

state Superfund programs. This report should be conducted in coordination with the 

Association of State and Territorial Solid Waste Management Officials, and potentially 

with the Environmental Council of the States and the National Governors Association. 

The report should provide information for all 50 states (and any US territories with NPL 

sites) and include for each state or territory, the names of the NPL sites where the state 

is currently responsible for 10% of EPA-performed remedial actions and the associated 

estimated annual and total cost share, as well as the estimated annual cost of operation 

and maintenance for these sites. In addition, the study should include information on 

the total amount of monies, if any, in each state's cleanup fund (that is, funds that could 

be used to pay for cleanup of contaminated sites similar to those listed on the NPL), 

whether these funds are replenished on an on-going basis, the average cost of any 

state-funded non-NPL cleanups implemented over the past 10 years, and whether state 

Superfund laws have the same liability provisions as CERCLA. This kind of information is 

critical to a frank assessment of the possible future state role for NPL cleanups. For a 

number of years, EPA commissioned an in-depth analysis of state Superfund programs 

that was conducted by the Environmental Law Institute. The last of these reports was 

issued in 2002. 

2 July 25, 2017 Memorandum "Receipt of Superfund Task Force Report and Next Steps for 

Revitalizing the Superfund Program" from E. Scott Pruitt, EPA Administrator, pg. 2. 

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Ill. Estimating Current and Future Funding Needs for an Effective Superfund Program 

As Congress seeks to improve the efficiency and effectiveness of the Superfund remedial 

program, one key question is whether the program is receiving adequate annual appropriations to 

successfully carry out its responsibilities. For many years, EPA developed and publicly released an 

estimate of the future funding needs for the Superfund program, called the "out-year liability model." 

While there were criticisms of the estimates (which is why RFF was asked to develop the estimates in 

the 2001 Report to Congress mentioned earlier), it did provide a baseline estimate of future funding 

needs, with assumptions that could be examined and debated. That report has not been issued in 

many years. Unfortunately, the 2001 RFF Report to Congress is the last time there has been a 

comprehensive public analysis of the key building blocks of the program and an estimate of future 

funding needs. 

It is time for Congress to require that EPA estimate future funding needs for the Superfund 

program on an annual basis. Absent an annual estimate of the future cost of cleaning up non-federal 

sites on the NPL, it is difficult, if not impossible, to evaluate whether annual funding levels are 

adequate. 

a) EPA should estimate the future cost of completing work at all non-federal sites on the 

NPL This estimate, and the assumptions behind it, should be made public and should be 

updated on an annual basis. To ensure the credibility of the effort, EPA should 

commission a small advisory panel of outside experts to review the approach, data used, 

assumptions, and results. This work does not have to be an expensive or timeconsuming exercise, as the goal is to have a reasonable ballpark estimate of future 

costs, not a precise figure. A simple model with site-specific costs for all mega sites 

(cleanup cost of $50 million or more) and average unit costs by site type for all other 

sites, based on the total number of operable units at each site, would be sufficient as a 

starting point. Over time, the estimate can become more precise. The model should 

include the cost of future EPA actions and activities at all non-federal NPL sites and of 

long-term response actions paid for by EPA. The estimate should include both 

extramural (contract) and intramural (staff) costs and the staff costs to oversee PRP-Iead 

actions. 

b) EPA should develop an estimate of the amount needed for a "PRP-reserve fund." One 

of the most important tools for EPA to get PRPs to implement actions expeditiously is 

the threat the EPA will itself implement cleanup actions if PRPs are recalcitrant or drag 

their feet. In order for this threat to be real EPA needs to have a sizeable reserve fund to 

draw on so that PRPs know if they don't take action in a timely manner, EPA will step in 

and move forward with the cleanup process at NPL sites on its own. In earlier years, 

when Superfund appropriations were more generous, this threat was real. In recent 

years, with the amount of cash on hand available for actual cleanup (see Figure 3) much 

depleted, EPA does not have the cash on hand to step in and take action. This imbalance 

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needs to be corrected in order to ensure an effective enforcement program. Every dollar 

paid by a responsible party is a dollar that does not need to be paid for by taxpayers and 

government revenues. 

c) EPA should investigate the potential savings of an "optimal cleanup funding" 

approach for NPL sites. It is well known that there are some very expensive fund-lead 

sites that, alone, would dwarf the annual remedial action site allowance, which in 2017 

was $187 million (in 2016 dollars) for all sites on the NPL. Given the constraint on 

annual EPA funding for site construction, the number of active NPL sites, and the 

average cost of a remedial action, it is almost certain that site cleanups are not funded 

in an optimal manner and that, due to cash constraints, the work at some sites is spread 

out over many years. Many believe that this approach increases total site costs, both in 

terms of staff time and support and the "extramural" cost of cleanup. If the goal is a 

more efficient program, it would be extremely useful to have a better understanding of 

the potential total cost savings to a different "optimal" approach to funding cleanups. 

Thus, EPA should conduct an optimal funding analysis for five or more fund-lead NPL 

sites each with total cleanup costs of $50 million or more, to examine whether less 

constrained annual funding for these sites would result in total cost-savings, and if so, 

how much. If the analysis showed substantial cost savings, coupled with the promise of 

faster cleanups, Congress could consider whether a few years of "surge" funding would 

be worthwhile as a mechanism to get some of the more costly sites completed faster, at 

less cost. 

d) What kinds of sites are being added to the NPL, and why? Any estimate of future 

cleanup needs requires some sense of what kinds of sites have been added to the NPL in 

recent years, and why, and what kinds of sites are likely to be added to the NPL in the 

future. EPA should examine the sites that have been added to the NPL over the past 

five years and issue a report detailing the types of site, why the site warranted EPA 

attention (orphan, enforcement difficultly, emerging contaminant, need for resident 

relocation, state referral/request, etc.) as well as a crude estimate of likely cleanup cost 

and complexity. 

IV. Administrator Pruitt's Superfund Task Force Recommendations Report (July 25, 2017) 

and list of 21 Contaminated Sites Targeted for "Immediate, intense action" (December 

8, 2017). 

As you know, on July 25, 2017 EPA issued a report that included 42 recommendations 

for improving the Superfund program which was accompanied by a memorandum from 

Administrator Pruitt identifying his top priorities for action. As of January 16th, there has been 

no public information on the implementation status of any of the recommendations, except for 

the recommendation calling for EPA to identify a "top 10" list of sites, which I will turn to in a 

moment. We in the public, and of course, more importantly, residents living near NPL sites, 

have no information on whether some or all of the recommendations have been implemented, 

nor of the disposition of the actions called for in the report. There has been no information on 

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[The attachments to Ms Probst’s statement can be found at: 

https://docs.house.gov/meetings/if/if18/20180118/106783/hhrg115-if18-wstate-probstk-20180118.pdf.] 


29742.056

the status of the recommended actions, on the progress implementing the actions, or perhaps 

on difficulties encountered, nor on how the 42 recommendations have affected or changed 

Superfund operations and priorities. Nor have there been any statements on when the public 

and affected residents can expect information on progress. In sum, information on the 

Superfund program has become more elusive than ever. 

Some of the recommendations in the July 25th report and memo- such as the task 

noted earlier that calls for EPA to take action at NPL sites where human exposure is not under 

control- clearly require EPA to gather substantive information on a subset of sites, information 

the public has a right to know. One would assume this information is either in an excel 

spreadsheet or a WORD document somewhere. It is curious that no information on this, or 

other tasks called for in the memorandum, has been made public. 

The list of 21 sites announced on Dec. 8 is equally troubling. It is unclear why or how 

these sites were chosen for "immediate and intense" action, and exactly what that means. We 

have been told it does not mean more EPA money, but other than that no information has been 

provided. One would have thought that having identified these sites as a top priority, that 

more information about these sites and the proposed actions by the Administrator would be 

forthcoming. My own analysis based on the individual site websites (the information on these 

websites can change any time, so the information below may be out of date) suggests that of 

these 21 sites: 

o At 9 sites, human exposure is not under control; 

o At 5 sites, there is insufficient data to determine if human exposure is under 

control; 

o At 3 sites, information on this measure is not readily available on line; and 

o At 4 sites, human exposure is under control. 

Given the importance of this measure, one would think that this is one of the first 

issues the Administrator would examine once the information on subsequent actions at these 

sites has been provided. 

What is needed are meaningful reforms for improving the Superfund program as a 

whole, not a list of 21 sites that receive the Administrator's personal attention. 

* * * * * 

Thank you for asking me to testify before you today. I would be happy to answer any 

questions. 

12 
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Mr. SHIMKUS. Thank you very much, and I will recognize myself 

5 minutes for the members’ questioning. 

And Mr. Cobb, in your written testimony you note that the national contingency plan should be updated and you specifically suggest perhaps the national contingency plan should be revised to 

apply separately to cleanups funded by potential responsible parties, or PRPs, versus cleanups paid for by the federal government. 

Can you walk us through your suggestion for updates to the national contingency plan? And if you can do it quickly. I want to try 

to get to as many people as I can. 

Mr. COBB. Yes, sir. I will be glad to. 

Yes. First, the NCP was written almost 35 years ago. We’ve 

learned a lot since then. We need to update it for the lessons that 

we’ve learned, and recognizing the difference between PRP-led 

cleanups and fund-led cleanups, recognizing that we have many 

PRPs who now get it, wwho want to be able to resolve their issues, 

want to be able to move forward and conduct cleanups, yet the 

NCP was written as though every site was going to litigation, every 

site was going to cost recovery. So it is very detailed. 

We need to make a difference there to enable sites and facilities 

that want to resolve their issues to be able to move forward quickly. That provides a greater incentive to encourage more sites to do 

that and still reserves the detail for those sites that need to go 

through the trust fund type cleanup and cost recovery. 

Mr. SHIMKUS. And I appreciate that. And for the panel as a 

whole, just as a statement, and I am not sure where we as a committee can get to—I think a lot of you have raised the issue in observing us, we are frustrated, it takes too long, we are looking for 

recommendations, and if we as members could eventually decide on 

what the solution to that goal is together, we maybe start writing 

something that would help update some of these records and files 

and timelines and stuff. 

So I would encourage a continued dialogue with us as we move 

forward. 

Back to Mr. Cobb. Do you—and part of this debate is do you 

think—and it was raised by other panelists, do you think that certain authorities under the Superfund act could be delegated to 

states? 

Mr. COBB. Yes. As I stated in my written testimony, I think that 

where responsible parties are willing and able to go forward with 

cleanup, states certainly have the expertise and the capacity to be 

able to do that. 

The advantage of that is it doesn’t take away from EPA’s actions 

under fund-led cleanups. In fact, it enhances them because it removes some of the decision making and technical bottlenecks that 

we see of everything going through the federal project managers 

through the federal decision makers and freeze up resources to be 

able to move sites faster through the process. 

Mr. SHIMKUS. And I don’t know if it was Ms. Mans, Ms. Probst— 

someone mentioned this. Ms. Mans, with your Passaic River issue, 

is there a problem with a proposal that some Superfund responsibilities be delegated to the states? 

Ms. MANS. Well, the Passaic River—there’s a close partnership 

with the states for that cleanup. It’s one of the largest and most 

107 

complicated in-water Superfund sites in the country. So I don’t 

think that’s an appropriate site to do that. 

The State of New Jersey has a lot of expertise in cleaning up contaminated sites. 

Mr. SHIMKUS. So is it fair to say that states wouldn’t want a 

huge one maybe like the Portland area, but smaller ones that can 

be managed, Mr. McKenna? 

Mr. MCKENNA. Yes. I think this is one of those issues where it’s 

really state-specific and site-specific. 

In Portland, we have the Portland Harbor Superfund site, which 

is about 11 miles, and EPA is the lead for the in-water cleanup 

there. The State of Oregon is the lead for the in-water sediment 

cleanups immediately adjacent and immediately upstream because 

we need to control those—— 

Mr. SHIMKUS. Because when I toured it, there was one site that 

was relatively remediated by the state—— 

Mr. MCKENNA. Right. 

Mr. SHIMKUS [continuing]. Where all the surrounding areas, in 

essence, were not, if I remember that. 

Mr. MCKENNA. That was McCormick and Baxter, which is a separate Superfund site and which it was an orphaned site, federal 

funds and the state implemented the cleanup there. 

The state also implemented the cleanup at sediment sites immediately upstream of the Portland Harbor Superfund site and in that 

area where there were multiple cleanup sites, they dealt with each 

one separately and the PRPs of those sites separately, and they’ve 

actually got the cleanups done at the same cleanup goals as Portland Harbor. But they’re actually done as opposed to the continuing work that’s going on at Portland Harbor. 

So I think there are ways and we are happy to sit down with 

anyone and talk about the lessons learned and some of the 

progress we’ve made in those areas. 

Mr. SHIMKUS. Thank you. And Dr. Porter, I don’t have time for 

a question but I appreciate your blunt straightforward analysis and 

we look forward to working with you on ways if we get a decision 

to try to move forward on trying to at least clean up the process 

legislatively. 

So I will yield back my time and turn to the ranking member, 

Mr. Tonko, for 5 minutes. 

Mr. TONKO. Thank you, Mr. Chair. 

Ms. Mans, as I mentioned, I’ve been very concerned with transparency, the Superfund task force process and the development of 

the administrator’s targeted list. 

Did anyone at EPA engage with you before the Diamond Alkali 

site appeared on the administrator’s targeted list? 

Ms. MANS. No. We actually, subsequent to the listing, requested 

a meeting with the regional administrator, Peter Lopez, and we 

just met with him last week to ask more. We didn’t really get much 

more information about what it means. 

Mr. TONKO. And are you going to continue to pursue to get information on that? 

Ms. MANS. Yes, we will. I mentioned we are anticipating a proposal by the PRPs for that cleanup for that portion that was put 

on the list next month and then we’ll have to turn around and proVerDate Nov 24 2008 12:32 Jan 10, 2019 Jkt 037690 PO 00000 Frm 00111 Fmt 6633 Sfmt 6633 I:\MY DOCS\HEARINGS 115\HEARINGS\115-92 CHRIS
108 

vide technical comments on that on behalf of the community for the 

CSAG meeting on March 1st. 

Mr. TONKO. For a little more clarification here, did EPA give any 

explanation to you as to what it means to have the site on the list? 

Ms. MANS. No. They were as helpful as they could be but it was 

just different variations of the word intense and immediate. 

Mr. TONKO. OK. People can accuse me of cynicism if they want 

but I do believe that this is a strategy for generating future press 

releases more than actually working toward remediating sites for 

the standard of protecting human health and our environment. 

So Ms. Mans, can you explain the role that local stakeholders 

play in making a remediation successful? 

Ms. MANS. Sure. Our CAG is very highly educated. We’ve been 

meeting since the fall of 2009 almost on a monthly basis, and we’ve 

done everything to provide advice on the community health and 

safety plan, the job training program. We created local jobs at our 

request on emergency action there or initial cleanup and as well as 

provide, like I said, technical advice to the—— 

Mr. TONKO. And how important is that engagement within buyin from the local community? 

Ms. MANS. It’s the most important thing you can have at a 

Superfund site. When the EPA announced the March—in 2016 

ROD we had both senators, every single congressional representative in the region, the community, the mayor, all standing up to 

support that decision and that’s what made the difference. 

Mr. TONKO. Well, I will not argue with Dr. Porter—that many 

cleanups could happen more quickly and more cost effectively. But 

I really do believe a well-funded EPA is critical to get these cleanups done. 

Ms. Probst, has a lack of EPA funding caused a delay in starting 

some cleanups? 

Ms. PROBST. Well, as Barry Breen mentioned, we know from 

EPA’s own data, I think it’s 14 of the last 17 years they’ve had to 

delay remedial actions that are—you can document that. 

I think it’s fair to say that if you listen to Mr. Carter or anybody 

who has a site, sites are taking a long time. One has to assume 

that the lack of actual funding for construction is causing EPA to 

spread things out over multiple years. 

That is much harder to capture. So all we know is the specific 

actions that have been delayed. But you have to assume that if you 

only have $187 million, which I would love to have personally, but 

is not a lot money for this program for cleanups, for construction, 

that things are being parceled out over years. 

So we don’t know exactly how much but I think it’s fair to say 

it contributes to the delay. 

Mr. TONKO. And can you explain how EPA needs both enforcement and cleanup resources in order to ensure responsible parties 

remediate these sites? 

Ms. PROBST. Sure. Although I am not a lawyer but, the enforcement program the whole goal is that the responsible parties will 

actually pay for and implement cleanups themselves. In theory, 

they see that as an advantage because they assume they’re more 

efficient than EPA, although one actually doesn’t know that. But 

it’s in their interest to have more control. 

109 

So under the enforcement program, and usually we are talking 

settlements here, EPA works with responsible parties and the implement, as Barry said, I think, we think it’s 60 or 70 percent of 

remedial actions. 

The other thing that’s important that I mentioned in my testimony is EPA being able to step in if there’s a site that has been 

sitting there for 5, 10, 15, or 20 years and the responsible party 

isn’t doing anything, and there are at least two of the 21 sites on 

the lists that it clearly says the PRPs have been sitting on this site. 

The idea is that EPA should have the funding to go in there and 

say OK, PRP, there’s been this remedial action ready to go for 3 

years or 5 years—you’re dragging your feet—forget it, we are going 

to implement. That’s part of the program. 

Mr. TONKO. And just quickly here, Ms. Mans, I mentioned the 

issues facing the Hudson River this morning. It is clear how important it is to get the remedy right the first time. Can you explain 

how an insufficient assessment for sampling or modelling or an incomplete cleanup will make it more difficult to make sites protective of human health and bring responsible parties back to the 

table? 

Ms. MANS. Well, if you move forward with that type of thing, I 

don’t see how you can bring them back to the table, especially 

years later for, like, a sediment thing site when you only then figure out decades later that the fish are not getting healthier and 

you’re not reducing the cancer risk. 

The ROD that we have now is a bank-to-bank dredging and we 

look to what happened at the Hudson River with just the hot spot 

removal as informing us about what should be happening for that 

river, and that’s what concerns us about the upper river and that 

maybe they’ll try hot spot removal. 

Mr. TONKO. Thank you so much. 

With that, I yield back, Mr. Chairman. 

Mr. SHIMKUS. Gentleman yields back. 

The chair now recognizes the gentleman from Georgia, Mr. Carter, for 5 minutes. 

Mr. CARTER. Thank you, Mr. Chairman. 

Dr. Porter, I want to echo the comments of the chairman. I find 

your testimony to be quite refreshing and I appreciate that, and I 

want to associate myself with you that I think it takes more than 

just throwing money at a problem to cure it. So often up here in 

Washington we think that’s the cure. If you can get enough money 

to it, then it’s going to be solved. You, obviously, don’t adhere to 

that advice, although agreed that we probably do need to do better 

than what we are doing. 

I wanted to ask you, you have also, in your testimony I noticed that you said that nearly a $100 billion that EPA has spent in public and private funds really is not proportional to the amount of 

work that’s been done. 

You mentioned in your testimony the need to move the site remediation decisions to the key subordinates of the secretary. Can you 

elaborate on that? Is that going to help? Is it going to make it more 

timely? How is that going to work? 

Mr. PORTER. Well, I think you have got a very important project 

here where you have got to get people who—the key people are the 

110 

administrator, who spends some time out, and I am very happy the 

administrator at least is putting focus on this thing. I have not 

seen too many of the administrators spend this much time on 

Superfund. So that in itself is kind of interesting. 

But below that, you have got my old job, which is the national 

program manager who can actually make remedy decisions, him or 

herself, and you’ve got the ten regional administrators and you’ve 

got the Superfund chiefs in the region. They’re all important. 

So I think it’s important. Frankly, I am very disappointed in recent years or quite a few years actually, that the management of 

the projects has been sitting lower and lower and lower at EPA. 

More and more committees, more and more whatever. 

So I think that’s important. I also want to point out that the remedy itself is critical. I’ve seen sites with a $50 million remedy, 

$800 million remedy, or $2 billion remedy. And the $500 million is 

5 times as good as the 10 or the 20. They’re just different. For example, the comment just here recently about—and I am familiar 

with all these sites—of the Passaic River and the Hudson or whatever and maybe hot spot removal is better than wall-to-wall dredging of the river, which is billions of dollars. 

And so I think it’s important, as you have a lot of judgement for 

it, and by the way, the first thing in the statute of this law—back 

to Mr. Dingell’s day—is that the president shall pick, meaning people like me, the president shall pick a cost-effective remedy. That 

means a good remedy has not another criteria that go in there. 

And so I think it’s very important to have the people at pretty 

senior things—mainly at the region. I want the region to go as far 

as they possibly can. Most sites they can handle. But when they 

can’t handle the site or they want help, someone—like in my old 

job—has got to get in there and help them and, frankly, I might 

even say I think we ought to do this. 

I had lots of time in the early days of Superfund of having regions come in and talk to me about that we are going to—here’s 

the site we’re going to do, and I won’t get in a lot of detail. But 

I will say, I would ask them the following five or six questions. 

For example, real simple, you say EPA is going to do this—well, 

you do know that Mr. Dingell, et cetera, put in there, which is 

good, that the state shall pay—if EPA has to pay for it, the state 

has to pay 10 percent. Does Oklahoma have 10 percent, just to pick 

a name at random? 

And the answer often is no. So you have to be careful and I 

would say, well go back to the remedy and the PRPs will do it. 

Well, they’ll do it. They’ll do the $80 million remedy but they won’t 

do the $90 billion remedy. Had nothing to do with the cost. It’s just 

they’ll go to court on that. You can ask the people in the area, well, 

do you want the $90 million remedy or the $80 million remedy— 

no, we don’t want to be moved out of our houses. I think of that 

Love Canal as a good example of things. That kind of dialogue 

would happen all the time. 

So it takes a lot of judgment of these nine criteria and that 

judgement needs to be held pretty high and the reason I am telling 

the president or anybody else who will listen, get my old job filled 

with a full time person who has a lot of savvy and help you and 

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licans, because the remedy itself, I’ve seen sites all over the place 

where you’re going along thinking it’s $200 million or $300 million, 

next thing you know it’s a billion. And that doesn’t mean it’s good 

or bad. It’s just let’s think, guys. The law says you pick a cost-effective remedy and a bunch of other things. So what we don’t need 

is a bureaucracy. What we now have is a lot more bureaucracy 

than in my day. 

Mr. CARTER. Let me just really quickly, Dr. Porter. 

So do you believe states ought to have more authority or less? 

Mr. PORTER. Yes. In my written testimony I think one of the 

things I said looking down the road a ways I think the states 

should do most of this work. 

I’ve looked at a lot of sites around the country and what I find 

in general the states—for similar sites, not a bad site and a not so 

bad site—but those kind of sites that the ‘‘good’’ states that had 

really good programs are usually about a third of the cost and 

much faster. 

Mr. CARTER. OK. But Ms. Probst, you mentioned in your testimony that you didn’t think the states could do it or they’re not 

qualified, they don’t have the money, or what? 

Ms. PROBST. I think we are talking a little bit vaguely. 

Right now, there is nothing that precludes states from cleaning 

up sites that are on the NPL and if you listen carefully to the testimony from Mr. Cobb they want the states that don’t involve a lot 

of funding. They want the PRP lead sites. 

So I don’t really know what’s being recommended. There’s nothing that precludes states—a site only gets on the NPL if the state 

concurs. That’s not legal but that’s basically the policy. 

So it’s not that EPA is adding sites to the NPL without state 

agreement. So I am not actually sure what’s being recommended. 

But it is true that states don’t have a lot of financial capability. 

They’re upset about the 10 percent cost share. 

So I think that whatever recommendations you get on the states 

it needs to be clearer. I don’t know what’s being recommended 

here. And so I don’t know if they want more NPL sites or what 

they want. 

Mr. CARTER. Right. Well, thank all of you for your work, and I 

yield back. 

Mr. SHIMKUS. Yes, excellent work. 

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

Mr. PALLONE. Thank you, Mr. Chairman. 

I just want to say I am happy to have Debbie Mans here because 

she’s really a fierce advocate for the environment in New Jersey 

and has a wealth of experience with the Superfund program. 

But I wanted to follow up, Debbie, on the issues raised by Mr. 

Tonko. I have several Superfund sites in my district and stakeholders and those sites have called me to ask why they weren’t included on the list. I know we have many lists now. And they wonder if that means their sites are now headed to the back of the line. 

As I stressed in my questions to Mr. Breen, the focus of the 

Superfund program has been and should remain protecting human 

health and the environment. 

Obviously, you agree with that, yes? 

112 

Ms. MANS. Yes. 

Mr. PALLONE. OK. But let me ask you, do you have concerns that 

the recent EPA actions have the potential to shift EPA attention 

and cleanup funds away from the riskier sites? 

Ms. MANS. I think in the current state of almost a third of the 

budget being cut at EPA, what’s going to happen is that you just 

can’t do more with less. 

And so yes, priorities will be shifted and choices will have to be 

made and I think inevitably it will result in slowdowns at other 

cleanup sites. 

Mr. PALLONE. OK. Now, I am particularly concerned about yesterday’s publication of the list of Superfund sites with the highest 

potential for economic redevelopment, which is a factor that is not 

really relevant to the risk posed by the site. 

The Passaic River was or was not on that last list? 

Ms. MANS. I am still looking at the list on December 8th so I am 

not sure. 

Mr. PALLONE. OK. All right. So, but of course, my understanding 

is that—the Passaic River is not going to be redeveloped for industrial use. So, that doesn’t make the cleanup less important. 

Ms. MANS. Right. In the Passaic River, the community has been 

perfectly clear what they want to see for the river. They want waterfront parks, boat ramps, habitat, clean water where if you catch 

a fish or a crab you will not get cancer or that it’s illegal to do that. 

That’s what the community wants for their river. 

Mr. PALLONE. Yes, and as you say, the community often is the 

most knowledgeable. I am not saying they’re the only factor but 

certainly the most knowledgeable. 

But then, it’s not true that because the site may not be redeveloped that there aren’t significant economic benefits from doing the 

cleanup, right? You still see significant economic benefits to what 

you’re proposing, even if it’s not redeveloped. 

Ms. MANS. Right. The proposed cleanup of the lower 8.3 miles include a channel, which has not been dredged for 40 years. So we 

we took commercial interest into account for the cleanup. 

But yes, there is a new waterfront park in Newark. The third 

phase was just opened last month. That’s what’s going to drive revitalization in our communities is places where people want to go 

open space and where businesses know that will attract their employees. 

Mr. PALLONE. See, that’s my concern. In other words, you have 

a site that will be cleaned up, it will be much more open to recreational uses. It won’t be primarily focused on manufacturing. 

But that’s the very thing that actually may bring more people 

and economic activity to Newark or to the area. That’s essentially 

what I think you’re saying. 

Ms. MANS. Yes. 

Mr. PALLONE. I don’t have a lot of time. So I just wanted to ask 

one more thing. 

You raised it in your testimony and this comes up all the time, 

that recent actions by the EPA could undermine the quality of the 

cleanups done, OK. 

Can you explain why you feel the recent EPA recommendations 

and targets could lead to weaker or less effective cleanups? 

113 

Ms. MANS. We’ll find out more about this next month at the 

CAG. But our understanding is that the PRPs plan to propose a 

cleanup for the upper 9 miles. That sounds like it will be a hot spot 

removal. Sounds a lot like their prior proposal for sustainable remedy that was earlier rejected by the EPA when we were looking at 

alternatives for the cleanup. 

So it’s a big concern and the directives from the headquarters at 

EPA, not the regional staff, which have been really amazing, leaves 

us with concern. 

Mr. PALLONE. See, my concern is that this task force report and 

the substantive targeted list could lead to inadequate cleanups and 

not robust cleanups that are really protective of human health and 

the environment, and the mission of the Superfund program is to 

protect human health and the environment. 

So if you do these meaningless cleanups that don’t actually address that then we are not accomplishing—— 

Ms. MANS. We don’t have a Superfund program. Yes. 

Mr. PALLONE. Right. All right. Thank you so much. I appreciate 

you being here. 

Mr. SHIMKUS. Gentleman’s time has expired. 

The chair recognizes the gentleman from Michigan, Mr. Walburg, 

for 5 minutes. 

Mr. WALBERG. Thank you, Mr. Chairman, and thanks to the 

panel for being here. 

Mr. Cobb, in your written testimony you discussed the modernization of the correction action program of the Resource Conservation Recovery Act that happened in the 1990s. 

What could be learned from that process that can be applied to 

modernization of the Superfund today? 

Mr. COBB. Mr. Walberg, I believe what we can learn from that 

process is many of the things that I outlined in my testimony about 

enabling sites with facilities that understand their liability now 

and want to resolve it, enabling them to move forward. 

Back in the 1990s, 2000s, I was actually one of the voices against 

that kind of action because I believed that the more prescriptive requirement that RCRA was using up until that time worked to our 

benefit. 

I am happy to say today that I’ve been proven wrong on that because as RCRA was redesigned to be more flexible and allowing 

sites to move forward in targeting interims actions such as Dr. Porter described earlier and making quicker decisions, we’ve been able 

to get more sites cleaned up faster. 

Facilities have recognized that if they’re willing to work with us 

they can get through the process faster and more economically and 

still arrive at a very protective cleanup. 

Mr. WALBERG. And so that’s the enabling you’re talking about? 

Mr. COBB. That’s the enabling, yes. We have to recognize that, 

as Mr. Breen testified earlier, only about 30 percent or so of the 

sites on the NPL require fund leave activity. Most of them are PRP 

leave. And there are many other sites that are not on the NPL that 

are also conducted as CERCLA cleanups. 

Currently, the way the statute is written, all of those decisions, 

all of that review, is under EPA authority. None of it is delegable 

114 

to the states although the states work cooperatively with EPA on 

those things. 

What I am proposing is that by opening that up and giving 

states a broader role that we increase the through-put capacity of 

the program we enable sites that want to move forward to move 

forward and get cleanup done and then we are able to focus more 

resources on those recalcitrants sites or the orphan sites and be 

able to apply the full force of the Superfund liability scheme on 

those sites, which creates a greater incentive for sites to come forward voluntarily to help us out. 

This has worked and we’ve been able to move thousands of sites 

through the process much more quickly and I believe it will work 

in the Superfund program as well. 

Mr. WALBERG. So it’s not a fix-all but it does narrow the scope. 

We think of the Gelman site, for instance, which seems to drag on. 

Mrs. DINGELL. And on and on. 

Mr. WALBERG. And on. Can we start this song together? 

That would be one where we are not seeing that efficiency, speed, 

and creativity in completing the process. 

Mr. COBB. That is correct, and if I could venture to say that has 

has been discussed by the committee, there are issues with cleanups being funded limited. 

But one of the things we in the states have learned through the 

years is that we’ve got to streamline our processes. For those 

things that we do and do well, we’ve got to make those as efficient 

as possible to be able to wisely use the funds that we do have and 

then make sure we have the available funds to do the work we 

need to do. 

Mr. WALBERG. And then make sure the states have the funds, 

and I think that is a crucial point we have to remember up here. 

Thank you. 

Dr. Porter, what are some actions EPA could take to improve 

Superfund cleanup program? Either changes to the statute that 

need to be made and taking in consideration of making them more 

effective and efficient? 

Mr. PORTER. Yes. I think one of the things to think about is in 

my statement I believe I mentioned three things that might be 

worthy of legislation. One is to actually increase funding of the removal and early action programs because we’ve done thousands 

and thousands—we, EPA—of actual short-term things. 

So what I am saying instead of having a million dollars that you can go out and pick up barrels or whatever, just make it $3 million 

or $4 million, because those are very effective. 

First off, you do things directly like picking up barrels or whatever. You learn a lot for the next step, and we at EPA tend to do 

is we go on and on and on, thinking about every conceivable thing. 

There’s a lot of sites where a company may come forward, I will spend a $100 million or $20 million or $10 million on this fairly 

quickly. People have done that. They offered to do things in other 

places. And that often just ends up in lots of dialogue forever and 

ever and never gets done. 

The second thing I did, unlike Mr. Dingell in his day, and I was 

very supportive of the statute, that statue many years ago, has a 

lot of starts. You shall do 250 studies, you do 513 of this. We met 

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all those. That was fine. I want to see things that are ending like, 

for example, how long will it be before you have a remedy—you’re 

starting the site, put it on the site and—by law and you can always 

tweak it a little bit if you’re the top person. In 2 years you shall 

have a remedy or maybe it’s like in 1 year I would like to see a 

new statute to say after 1 year the EPA needs to tell us what do 

the likely remedies look like or what are the things you can do immediately. 

So I think there’s things like that you could do. 

Mr. WALBERG. Well, thank you. Thanks for the pertinent advice. 

Mr. PORTER. Everything—there’s a date on it. 

Mr. WALBERG. Yes. Thank you. I yield back. 

Mr. SHIMKUS. Gentleman’s time has expired. 

The chair recognizes the gentleman from Texas, Mr. Green, for 

5 minutes. 

Mr. GREEN. Thank you, Mr. Chairman. 

EPA’s recent recommendations for reforms in the Superfund 

focus on sites with viable responsible parties without paying much 

attention to the orphan sites that need public funds to be cleaned 

up. 

In fact, when Administrator Pruitt was here last month he told 

us that there weren’t really very many orphan sites and they didn’t 

require a lot of funding. I’ve asked him to provide an exact number 

of how many orphan sites are on the NPL for the record of last 

month’s hearing but I am still waiting for that. 

A good example, we have a huge one that has a responsible 

party, but in the Houston area in southeast Texas we have a number of them. One of them is in our district. It’s an oil tanking facility that’s been there for at least many, many years and there is a 

responsible party but they’ve absconded. They went to Latin America somewhere. So that would, I hope, be included in an orphan site 

because it’s EPA staff working on it as best they can. 

Ms. Probst, what has been the coincidence of this sharp decline 

in the funding for the Superfund cleanup since the year 2000? 

Ms. PROBST. It’s really hard to tell, frankly, without doing any 

analysis. I don’t really have an answer and I guess I would just say 

that, one of the things that has plagued the Superfund program for 

a very long time—it’s not just this administration—again, there 

hasn’t been how much funding they need. There hasn’t been an effort to pinpoint what the problems are. If you don’t pinpoint what 

the problems I don’t care who you are, you can’t solve them. 

So I actually can’t tell you because numbers—like the number of sites, well, sites are heterogeneous. There’s a $5 million site, 

there’s a multiple hundred million dollar site. 

So it’s a very good question and I can’t give an answer. 

Mr. GREEN. Well, and that’s many administrations, not just the 

current one or previous but since 2000, and I’ve been out on that 

site and this is just barrels of toxic substances, crude oil mainly, 

sitting out in the rain rusting and every once in a while they’ll 

come in and move some of them. But they’re still at the site and 

that land is fairly valuable both for industrial or commercial purposes where it’s at. 

Do you believe that the funding for cleanups of orphan sites is 

an essential component of the Superfund program? 

116 

Ms. PROBST. Absolutely. And can I just say one thing about that? 

It is true that only some percent are orphan sites. But, again, you 

need the threat of bringing things back from responsible parties 

and the numbers flip in terms of the percent that are done by the 

fund in the earlier stages. The RIFS, the site study stage, tends to 

be done by EPA to get things moving. 

So it’s not that a PRP site has no direct costs to EPA. 

Mr. GREEN. OK. And Ms. Mans, do you agree? 

Ms. MANS. Yes. 

Mr. GREEN. When you were talking, by the way, the recovery 

there, that one site that we are working on still that was a dioxin 

facility, people are still crabbing and fishing off of that, and I wish 

we could turn it into a touristy place. 

But I have an industrial area and I think what’ll take over there 

is a barging operation because that’s the growth in that area—the 

San Jacinto River there were it enters the Houston ship channel. 

Ms. Probst and Ms. Mans, is the federal funding also essential 

for sites with the responsible parties because it allows the EPA to 

move ahead with cleanups where the responsible parties are hesitant, let’s call it? 

Ms. PROBST. Yes. 

Mr. GREEN. OK. Also, what do you believe would be the consequences if EPA’s budget request last year for drastic cuts in 

Superfund enforcement accounts were to go into effect? 

Ms. PROBST. Well, that just means everything is going to be paid 

for by the taxpayers. If you don’t have enforcement—you don’t PRP 

lead sites, what you’re saying is that all your sites are going to be 

paid for by the federal government. 

Mr. GREEN. OK. 

Ms. MANS. Just on some numbers—we were crunching them— 

the Trump administration proposed cuts to the Superfund program 

of 25 percent nationally, which would result in the loss of 536 staff 

slots. 

Mr. GREEN. Well, and Mr. Chairman, I have other questions but 

I know it’s time for us to leave. But it’s frustrating that what we 

see that our own budget process now—that how do we run the Department of Defense, much less EPA, with what we are doing now. 

But I yield back my time. 

Mr. SHIMKUS. Thank you. The gentleman yields back the time. 

The chair now recognizes the other force of nature on the committee, Mrs. Dingell, for 5 minutes. 

Mrs. DINGELL. I’ve behaved today. 

It’s great to see all of you and I thank you for sitting here. And 

Dr. Porter, I will tell the other Dingell that you referred to him 

many times today. It’ll make his day. 

But I, again, am going to go off script. But Dr. Porter, you were 

talking about how we should have remedies. But when we do remedies in the timeline, do we have the cost associated with them? 

One of the things that I’ve really learned it is taking far too long 

to even make the National Priority List when you know someone 

should be on it. Do we have the dollars we need to—when you try 

to put that timeline on a remedy? 

Mr. PORTER. Yes. I think so. I think there’s such a broad range 

of things. For example, a lot of the sites you’re talking about that 

117 

should be on the list or not be on the list, I am a big believer in 

putting a fair amount of money into well, what about when you go 

out and deal with it this afternoon? 

We’ve done thousands of things where someone has something 

that you could do fairly quickly. The other big thing—— 

Mrs. DINGELL. So why can’t we do that? Because it’s become such 

a bureaucracy. 

Mr. PORTER. Yes. I don’t think it’s so much bureaucracy. The guy 

that did a great job was Tim Fields. He was the Clinton administration. He came out of the removal program. He had my job a few 

years later. Tim was sent a million dollars here, $2 million here, $5 million 

there. I would OK a lot more sometimes than we had to, and he 

would cleanup sites. Now, obviously, if something is going to be $500 million, it takes 

a little longer. But I think there’s a lot of ways to be more creative. 

I would like to see more money put in these more straightforward 

projects where you can just go out and do it because there was a 

guy—just really quickly—a guy in Region 4, for a long time back 

in the old days we had six cleanup sites, so the worst post every 

day. I had one guy clean up six in 3 months. 

When I told the 10 regional administrators, got to get all the six 

cleaned up back—way back when. One guy goes back to Atlanta 

and he did six sites by himself, so to speak. And the reason he did 

it, he was creative. 

He said, well, first off, I am not going to bring the Army Corps 

of Engineers in here because we can do this with a removal program, and on and on and on. 

So I think there’s a lot of creativity you can use, and sometimes 

maybe a little constraint of money is not all bad. But I want to see 

people that can actually think hard about what’s a better way to 

do it. 

All these sites, as you may have heard me say earlier, they have 

huge, a big site, I worked in my practice the Department of Energy—I had a $100 million remedy and a $9 billion remedy. 

Well, one of the nine criteria here you have the pick an 

implementable site. It’s not implementable to get Congress to get 

$9 billion. I am just making this up, but not totally. 

So I think it may well need more money. But I would like to see 

more money thrown where it’s going to do some good because let 

me say really quick—— 

Mrs. DINGELL. OK. Because I got to ask Dr.—— 

Mr. PORTER. You can take out a lot of money of this budget by 

not doing stupid things—excuse the expression—like Remedy Review Boards that go around and take all kind of time reviewing 

things that the region should have done. 

Mrs. DINGELL. OK. So let me go to Ms. Mans and Ms. Probst at 

the same time. So an analysis by the Government Accountability 

Office found that only 27 percent of the new remedial action 

projects were funded in fiscal year 2013 compared to 100 percent 

in 1999. 

Could both of you answer, Ms. Mans and Ms. Probst, can you 

highlight some of the serious consequences we face both in terms 

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fund programs annually at a robust level or if it keeps going, significant cuts? 

Ms. MANS. Well, yes. Thank you. I just want to say I did hone 

my advocacy skills in your district, born and raised. 

Mrs. DINGELL. I know. I was going to tell—and her cousin was 

John Dingell’s—unfortunately, he died 2 weeks ago. But George 

Mans was a great man. 

Ms. MANS. So, our public health is at risk. We had people coming 

down to the river and catching fish and crabs that have dioxins in 

them, and it’s unacceptable. And that’s what we are dealing with. 

Ms. PROBST. Yes. Again, I think it’s really informative to look at 

the very limited amount of money that actually goes to cleanup in 

the Superfund budget. 

So when you’re talking about these cuts and—I am very grateful 

I don’t live near a Superfund site. My daughter lives sort of near 

the Gowanus site. I am a little bit less grateful about that. 

But I think, it’s easy for us who aren’t living near these sites. 

But if you are living there and if you have children or if you do 

subsistence fishing or if you want to walk around New Bedford 

Harbor, which there’s no way to enforce institutional controls—I 

assume all the contaminated waterways are that way—there are 

over a hundred sites where human exposure is not under control 

and there could be 250 sites where there are human exposure and 

not under control. 

Mrs. DINGELL. And local communities are being hurt by this. 

Ms. PROBST. And local communities are therefore at risk. The 

first thing the administration ought to do is put out that list of 

sites which you can do from the website. But that should be the 

top priority. 

Mrs. DINGELL. I am out of time but—and he was going to give 

me more but I know it’s—what I want to say is I hope we’ll all 

work together. My colleague, Mr. Walburg, works with me on 

this—the dioxin plume, which totally gets caught up in bureaucracy between two communities with a Superfund site. Two communities are in court. It’s been—and it’s been 50 years and it’s ready 

and it’s not getting cleaned up. 

Like, yesterday the Supreme Court upheld that the original polluter has to maintain responsibility. But it’s the local communities 

that are—and people who were scared about what’s going to happen. 

So I hope, Mr. Chairman, and my other remaining colleague, we 

can all work together to make sure we are getting robust funding 

and it’s a priority for all of us in this country. 

Mr. SHIMKUS. Well, I thank the gentle lady and, of course, it’s 

been a good hearing. But before we dismiss this panel, obviously, 

Chairman Walden is from Oregon and Congressman Schrader is a 

member of the full committee. Of course, I got a chance to go out 

to Portland and tour that site about a year ago. 

So everybody else had multiple things to be able to say and we 

wanted to make sure that we’d given you a chance, based upon 

what you have heard to weigh in any response to some of this debate. 

Mr. MCKENNA. Well, Mr. Chairman, I truly appreciate that. 

119 

A couple things. One, I think when you talk about state involvement and leveraging some state resources, I think it’s definitely 

worth looking into. But I think we have to evaluate that under two 

different buckets. One is if you have a site where there’s no money 

for the cleanup and public moneys need to be spent first and then 

seek reimbursement through legal action. That will be very difficult 

for a state like Oregon to take on a site like Portland Harbor that’s 

a billion dollars plus and take on that risk. 

But at Portland Harbor, we have the PRPs who have stepped forward to do the work and they are paying not only for the studies 

and the cleanup, but they pay the state and federal government 

oversight costs. 

So in situations like that around the country, I think we should 

look at leveraging state resources to bring more expertise to the 

table and help move these projects forward quicker. 

I think the other issue, and Dr. Porter touched on this a bit, I 

think for the early actions as these Superfund sites, when you 

come to a site and you recognize that there’s a problem and something needs to be done now, there are PRPs who are willing to step 

forward and do some early action. But there’s also concern from the 

public that that quick early action becomes the final action. I think 

we need to develop, and the state is more than happy—I have it 

in my talking points—of sitting down and talking about ways 

where PRPs like Northwest Natural and Portland Harbor who 

want to step forward and do the work can do it, and they stepped 

forward and did early actions back in 2004 and 2005, recognizing 

that the ROD was going to take longer to get to. 

So they stepped forward and did the early action, recognizing 

that they were probably going to have come back later and do more 

work. And I think if the PRPs recognized that, then more PRPs 

will step forward and do early action work. 

Mr. SHIMKUS. If I can follow up with the PRPs—a volunteer will 

probably want to make sure that people know that they did some 

early action and get some credit for at least being involved early. 

Would you say that that would be true? 

Mr. MCKENNA. Yes, I would. Yes. 

Mr. SHIMKUS. Well, again, I think this is a very important hearing and a very difficult topic. 

Thank you for your answering the questions, your testimony, and 

we’ll stay in contact. 

And with that, the hearing is adjourned. 

[Whereupon, at 1:10 p.m., the committee was adjourned.] 

[Material submitted for inclusion in the record follows:] 

[The prepared statement of Mr. Walden follows:] 

PREPARED STATEMENT OF HON. GREG WALDEN

Thank you, Mr. Chairman, for holding this hearing to give us a chance to look 

at ways to modernize the Superfund cleanup program. 

The Superfund program is 38 years old and some clean-up projects are as old as 

the law itself. The Portland Harbor site in Portland Oregon was listed on the National Priorities List in 2000 and the cleanup has been underway for over 15 years 

but it finally feels like we are making progress and that significant headway has 

been made recently. 

When Administrator Pruitt began his work at the EPA he came out of the gate 

by announcing that Superfund cleanup efforts would be restored to their rightful 

120 

place at the center of the Agency’s core mission. The fact that EPA is focused on 

prioritizing Superfund cleanups and revitalizing contaminated sites is great news 

for people who live near Superfund sites and just want to make sure that their communities are safe and for responsible parties who want to do the right thing by 

cleaning up contamination but whose efforts have been stalled by years of indecision. It is great news for the States in which the Superfund sites are located because States are invested—both from a decision-making and financial perspective— 

in the cleanup of these sites. It is great news for the American people because there 

is hope that we can finally start making real progress on getting sites contaminated 

by hazardous substances cleaned up and returned to productive use. 

So today we ask EPA and our stakeholder witnesses: 

• How can we continue to make progress on making the Superfund cleanup program more effective and efficient? 

• Is there too much process involved in cleanups? Can we reduce the red tape and 

speed up decision making? 

• Should states play a more significant role in implementing the Superfund cleanup program? 

• What role can Congress play in helping EPA with making superfund cleanups 

a priority—do we need to update the statute to get the program back on track and 

get these sites cleaned up? 

Mr. Chairman, I would like to thank Principal Deputy Assistant Administrator 

Barry Breen for appearing before the Committee today on behalf of the President 

and the EPA. We hope that Mr. Breen will be able to share with us more details 

about the progress being made by EPA to eliminate delays within the Superfund 

program so we that we can get started on workable, effective cleanups and make 

progress at other sites around the country like we have made recently at Portland 

Harbor. 

We are also glad to hear from our panel of stakeholders and experts. A hearing 

in this Subcommittee would not be complete without the voice of the States and 

other partners. Mr. Chairman, all our Members are grateful for the chance to take 

a deeper dive into these thorny cleanup issues that impact so many Americans. We 

hope that this will be just the start of the discussion as we look for constructive 

solutions on how to make sure that the program is able to adequately address the 

sites that still need to be cleaned up. I yield back the balance of my time. 

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Office of Solid Waste and Emergency Response 

Climate Change Adaptation 

Implementation Plan 

June 2014 
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Preface 

The U.S. Environmental Protection Agency (EPA) is committed to identifying and responding to 

the challenges that a changing climate poses to human health and the environment. 

Scientific evidence demonstrates that the climate is changing at an increasingly rapid rate, 

outside the range to which society has adapted in the past. These changes can pose significant 

challenges to the EPA's ability to fulfill its mission. The EPA must adapt to climate change if it 

is to continue fulfilling its statutory, regulatory and programmatic requirements. The Agency is 

therefore anticipating and planning for future changes in climate to ensure it continues to fulfill 

its mission of protecting human health and the environment even as the climate changes. 

In February 2013, the EPA released its draft Climate Change Adaptation Plan to the public for 

review and comment. The plan relies on peer-reviewed scientific information and expert 

judgment to identify vulnerabilities to EPA's mission and goals from climate change. The plan 

also presents I 0 priority actions that EPA will take to ensure that its programs, policies, rules, 

and operations will remain effective under future climatic conditions. The priority placed on 

mainstreaming climate adaptation within EPA complements efforts to encourage and mainstream 

adaptation planning across the entire federal government. 

Following completion of the draft Climate Change Adaptation Plan, each EPA National 

Environmental Program Office, all!O Regional Offices, and several National Support Offices 

developed a Climate Adaptation Implementation Plan to provide more detail on how it will carry 

out the work called for in the agency-wide plan. Each Implementation Plan articulates how the 

office will integrate climate adaptation into its planning and work in a manner consistent and 

compatible with its goals and objectives. 

Taken together, the Implementation Plans demonstrate how the EPA will attain the 10 agencywide priorities presented in the Climate Change Adaptation Plan. A central element of all of 

EPA's plans is to build and strengthen its adaptive capacity and work with its partners to build 

capacity in states, tribes, and local communities. EPA will empower its staff and partners by 

increasing their awareness of ways that climate change may affect their ability to implement 

effective programs, and by providing them with the necessary data, information, and tools to 

integrate climate adaptation into their work. 

Each Program and Regional Office's Implementation Plan contains an initial assessment of the 

implications of climate change for the organization's goals and objectives. These "program 

vulnerability assessments" are living documents that will be updated as needed to account for 

new knowledge, data, and scientific evidence about the impacts of climate change on EPA's 

mission. The plan then identifies specific priority actions that the office will take to begin 

addressing its vulnerabilities and main streaming climate change adaptation into its activities. 

Criteria for the selection of priorities are discussed. An emphasis is placed on protecting the most 

vulnerable people and places, on supporting the development of adaptive capacity in the tribes, 

and on identifying clear steps for ongoing collaboration with tribal governments. 
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OSWER Climate Change Adaptation Implementation Plan Workgroup Members: 

Andrea Barbe1y, Office of Underground Storage Tanks 

Jennifer Brady, Center for Program Analysis 

Richard Canino, Office of Emergency Management 

Ann Carroll, Office of Brownjields and Land Revitalization 

Steven Chang, Office of Super:fimd Remediation and Technology Innovatiml 

Thornell Cheeks, Region 4 

Anne Dailey, Office ofSuperfimd Remediation and Technology lnnm•ation 

Michelle Davis. Region 10 

Shmmo11 Davis, Region 9 

Ben Franco, Region 4 

Elisabeth Freed, Office of Enforcement and Compliance Assurance 

Jeff Gaines, Office of Resource Conservation and Recove1y 

Linda Gerber, Office of Underground Storage Tanks 

Sara Goehl, Office of Emergency Management 

Katie Matta, Region 3 

Ellen Treime/, Federal Facilities Restoration and Reuse Office 

Elsbeth Heam, Region 1 

Camille Hueni, Region 6 

Carol Keating. Region 1 

Jeffrey Kahn, Jnnovattons, Partnerships, and Communications Office 

Tiffany Kollar. Office of Resource Conservation and Recovery 

Rachel Lentz, Office of Brown.fields and Land Revitalization 

Nat Miullo, Region 8 

Nicole Nakata, ASPH Environmental Health Fellow 

Rebecca Ofrane, Region 2 

Carlos Pachon, Office ofSupe!fimd Remediation and Technology Innovation 

Scott Palmer, Office of Resource Conservation and Recovery 

John. Podgurski, Region 1 

Kristin Ryan, Region 10 

Daniel Schramm, Office of the General Counsel 

Mickey Young, Region 3 
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I. Climate Change Impacts to OSWER Programs 

What We Do 

Climate change is posing new challenges to the Environmental Protection Agency's (EPA's) ability to 

fu11111 its mission. The Office of Solid Waste and Emergency Response's (OSWER's) mission is to 

protect human health and the environment, and preserve and restore land resources. OSWER strives to 

protect the land from contamination through sustainable materials management and the proper 

management of waste end petroleum products. When contamination does occur, OSWER and its partners 

clean up communities to create a safer environment for all Americans. In addition, OSWER prepares for 

and responds to environmental emergencies and promotes redevelopment of contaminated areas and 

emergency preparedness and recovery planning. 

Without proper protections and effective restoration, the presence of uncontrolled hazardous substances in 

surface water, ground water, air, soil and sediment can cause human health concerns, threaten healthy 

ecosystems, and inhibit economic opportunities on and adjacent to contaminated properties. Waste on the 

land can also migrate to ground water and surface water, contaminating drinking water supplies. There 

are multiple benefits associated with cleaning up contaminated sites: reducing mortality and morbidity 

risk; preventing and reducing human exposure to contaminants; reducing impacts to ecosystems; making 

land available for commercial, residential, industrial, or recreational re.use; and promoting community 

economic development. In addition, materials management and sustainable land management practices 

can significantly reduce greenhouse gas emissions. 

Impact of Climate Change 

Changes in climate and its impacts may test OSWER's ability to serve 

these important functions. OSWER recognizes that anticipating and 

planning tor future changes in the climate and incorporating climate 

considerations into its programs and operations is critical for OSWER to 

continue to achieve its mission and fulfill its statutory, regulatory, and 

programmatic requirements. There is some uncertainty, however, as to how 

and when these changes to the climate will occur. OSWER will act 

prudently to ensure its actions address pressing needs and will review its 

Vision 

OSWER will continue 

to achieve its mission 

to protect human 

health and the 

environment, and 

preserve and restore 

Ia nd resources, even as 

the climate changes. 

vulnerabilities. actions and the state of climate science to make adjustments in the future. 

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Definition of Key Terms 

Adapt, Adaptation: Adjustment in natural or human systems to a new or changing environment that 

exploits benelicial opportunities or moderates negative effects. 

Adaptive capacity: The ability of a human or natural system to adjust to climate change (including 

climate variability and extremes) to moderate potential damages, to take advantage of opportunities, or 

to cope with the consequences. 

Mitigation: An intervention to reduce the causes of changes in climate, such as through reducing 

emissions of greenhouse gases to the atmosphere. 

Resilience: A capability to anticipate, prepare for, respond to, and recover, rrom significant multihazard threats with minimum damage to social well-being, the economy, and the environment. 

Risk: A combination of the magnitude of the potential consequence(s) of climate change impact(s) 

and the likelihood that the consequence(s) will occur. 

Vulnerability: The degree to which a system is susceptible to, or unable to cope with, adverse effects 

of climate change, including climate variability and extremes. Vulnerability is a function of the 

character, magnitude, and rate of climate variation to which a system is exposed, its sensitivity, and its 

adaptive capacity. 

Source: NRC. (2010). America's Climate Choices: Adapting to !he Impacts of Climate Change. National 

Research Council. 

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[] "In much of the Southeast and large parts of the West. the frequency of drought has increased 

coincident with rising temperatures. "Decreased precipitation and increased frequency of drought 

may impact water-intensive remedies and site stability, as well as increase the risk of wildfires. 

[] "Wildfires in the United States are already increasing due to warming. In the West. there has been a 

nearly fowfo/d increase in large wildfires in recent decades, with greater fire frequency. longer fire 

durations, und longer wildfire seasons.·· Wildfires at contaminated sites could promote the spread of 

contamination or impact remedies. Wildfire in the upland areas above contaminated sites could 

reduce vegetative cover, thereby increasing surface water runoff and resulting in catastrophic flooding 

that spreads contamination or impacts remedies. 

In order for OSWER to fulfill its mission to protect human health and the environment, it is critical that 

OSWER anticipate and plan for ti1ture climatic conditions. OSWER must appropriately integrate 

consideration of climate into its program activities, policies, and regulations. Through adaptation 

planning, OSWER can continue to protect human health and the environment but in a way that accounts 

for etTects of climate change. 

Identification of Vulnerabilities 

The first step in the development ofOSWER's Climate Change Adaptation Implementation Plan was the 

identification of OSWER's vulnerabilities to climate change. A vulnerability in this context reflects the 

degree to which a system is susceptible to, or unable to cope with, adverse effects of climate change, 

including climate variability and extremes. Using expert professional judgement and information from 

peer-reviewed scientitlc literature, the OSWER workgroup used the aforementioned climate change 

impacts as an initial screening tool to determine vulnerabilities to OSWER's processes, activities, and 

functions. OSWER did not conduct a detailed quantitative assessment of vulnerabilities. In total, 27 

unique vulnerabilities were identified (Table I). 

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Each vulnerability is linked to at least one climate change impact, however most vulnerabilities are linked 

to multiple impacts (Appendix A). For example, increased contaminant spread could occur because of the 

greater incidence of flooding at contaminated sites lrom heavy precipitation, hurricanes, and sea level 

rise, as well as, melting pcnnafrost or wildfires. Several vulnerabilities, such as data collection for 

mapping and training are linked to all the impacts of climate change. 

As the vulnerabilities were identified, they were organized by tour critical OSWER programmatic focus 

areas and a cross-cutting category: 

Gil Preserving Land -Proper Management of Hazardous and Non-Hazardous Wastes; 

[J] Preserving Land -Reducing Chemical Risks and Releases; 

CJ Restoring Land; 

CTI Emergency Response; 

C'J Tools, Data, Training and Outreach. 

Under each focus area a vulnerability may apply to more than one OSWER program office. For example, 

five different OSWER offices identified contaminant migration from sites as a vulnerability for their 

program. In addition, there were several vulnerabilities related to training and data needs that cut across 

all program o!Iices in OSWER, as well as across EPA. 

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III. Addressing Impacts of Climate Change 

Focusing on Specific Vulnerabilities 

In a resource-constrained environment, in order to prioritize and focus OSWER's efforts to address the 

impacts of climate change, each vulnerability was evaluated based on a set of criteria. Together, these 

criteria allowed each OSWER oftice to use its best professional judgment to evaluate the areas that 

needed the most or immediate attention and where its contribution would be most etTective. 

The tlrst two criteria, referred to as the --characterization Criteria", were designed to enhance the 

understanding of the overall impact of a particular vulnerability. Because climate change is a long-term 

problem, both the scale and timing of adaptation actions are important. 

Characterization Criteria: 

ED Scale of impact to human health, the environment or vulnerable communities because of the 

vulnerability- The scores for this criterion reflect the potential for harm to human health, the 

environment, or a vulnerable community, if the vulnerability is not addressed. 

lD Likelihood of occurrence because of the vulnerability- This criterion is a reflection of what 

impacts have already occurred at OSWER sites and programs. 

The second set of criteria reflect EPA roles in addressing the impacts of these vulnerabilities and are 

collectively referred to as "Opportunities for OSWER to make a difference". These criteria arc intended 

to identify those vulnerabilities for which action by OSWER would signiticantly advance adaptation 

efforts and ones in which OSWER is n'10re directly responsible for addressing. 

Opportunities for OSWER to make a ditTerence: 

ITJ Does EPA have a unique or lead role or technical expertise in this area? 

[] To what extent are climate impacts currently not considered in this area? 

[] To what extent could additional EPA involvement build momentum or leverage current 

activities? 

IEl Is there an opportunity to incorporate climate change into an ongoing effort (e.g., rulemaking, 

changes to grant criteria, updates to guidance and training)? 

Each OSWER office determined which vulnerabilities were applicable to its work and developed a score 

for the vulnerability. When applying the criteria, offices did not rank vulnerabilities in relation to each 

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Priority Actions 

OSWER has identified 26 priority actions to begin over the next 3 years. These actions are in one or more 

of the four programmatic fi:lcus areas and one cross-cutting category. The actions are found in a summary 

chart in Appendix C and are listed below by programmatic focus area and o!Iice. 

Preserving Land- Proper Managemellt of Hazardous & Non-Hazardous Wastes 

Proper treatment, storage, and disposal of hazardous waste protect the environment from harmful 

contamination. To ensure these materials are properly managed, OSWER supports prevention by 

activities such as permitting and inspections. Non-hazardous waste must also be properly managed, both 

routinely and in times of emergency. 

In the "Proper Management of Hazardous and Non-Hazardous Wastes" focus area, the vulnerability that 

ranked the highest was the management of surges in waste. particularly from the impacts of extreme 

events. ORCR is already involved in several efforts in this area and has identified several actions to 

respond to this vulnerability. These actions arc also applicable in the "'Emergency Response" focus area. 

As a crucial part of the RCRA program, ORCR has also identified a long-tem1 action that will begin to 

look at issues related to climate change and permitting programs. Even though, vulnerabilities related to 

pennitting did not receive high criteria scores, particularly in terms of likelihood of occurrence and 

potential impacts. 

Actions: 

ORCR 

• Based on outreach to states and tribes, develop recommendations for these stakeholders to 

incorporate climate change into RCRA Permitting Programs as appropriate (e.g., through robust 

implementation of technical standards for facility location and design). 

ORCR (also in the Emergency Response section) 

• Prepare Fact Sheets on proper management of wastes/debris associated with large natural 

disasters (e.g., electronic, household hazardous wastes, white goods, etc.). 

• Continue collaborative development with the Office of Homeland Security, on an interactive 

electronic waste management planning tool to aid federal, state and local emergency planners and 

managers in development of waste/debris management plans. 

• Finalize a document describing the "4 Step Process for Waste Management Planning:' 

• Update ORCR Homeland Security W cbsite with updated waste management planning 

information. 

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high probability of occurrence, and often under the control of EPA programs. Second, remedy 

effectiveness, which includes three separate vulnerabilities representing various stages of the cleanup 

process (remedy selection, remedy effectiveness during cleanup, and remedy effectiveness after a cleanup 

is complete), was also identified by several oftices as having a high vulnerability score and a role for EPA 

involvement. 

Nwnerous OSWER offices involved in cleanup activities identified either a short- or long-tern1 action 

related to the vulnerabilities mentioned above. Due to the differences in how OSWER cleanup programs 

are implemented, whether at the headquarters office, in partnerships with states, or through grants, the 

actions differ across offices. There may, however, be areas where oftices can share resources and 

knowledge, tor example, as we learn more about the effectiveness of particular remedies under extreme 

climate conditions. 

Actions: 

ORCR 

• Develop recommendations for states and tribes to encourage climate change considerations be 

incorporated into all of their RCRA Corrective Action Programs (e.g., regarding remedy 

selection, etc.). 

OUST 

• Work with the Association of State and Territorial Solid Waste Management Officials 

(ASTSWMO) to gather infomation on if and how states currently: 

• alter remediation plans in response to changing climate impacts; 

• alter site assessments in response to flooding or drought conditions; 

• alter risk factors and ran kings in response to flooding or drought conditions. 

• Share information among states, tribes, and EPA regions regarding: 

• new or modified investigation strategies and remediation techniques; 

• new or modi tied assessment techniques; 

• how climate conditions may impact risk-based cleanup factors and rankings. 

OBLR 

[[! Work with regional staff to update the Analysis ofBrownfields Cleanup Alternatives (ABCA) 

language in the brownfield grant Tems and Conditions to include language that requires 

recipients take potential changing climate conditions into consideration when evaluating cleanup 

alternatives. 

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Actions: 

OUST 

• Work with ASTSWMO to gather infonnation on if and how states currently respond to climaterelated emergencies (e.g., use of GIS mapping in flood-prone areas). 

• Analyze lessons learned from Hurricanes Katrina (2005) and Sandy (2012) to identify how EPA 

can help states respond to UST-related hurricane impacts. 

• Share infonnation among states, tribes, and EPA regions regarding emergency response and 

preparedness (e.g., OUST's Flood Guide). 

ORCR (also in the Proper Ma11agement of Hazardous and Non-Hazardous Wastes section) 

• Prepare Fact Sheets on proper management of wastes/debris associated with large natural 

disasters (e.g .• electronic, household hazardous wastes, white goods. etc.). 

• Continue collaborative development with the Office of Homeland Security, on an interactive 

electronic waste management planning tool to aid federal, state and local emergency planners and 

managers in development of waste/debris management plans. 

• Finalize a document describing the "4 Step Process for Waste Management Planning." 

• Update ORCR Homeland Security Website to incorporate facts sheets, 4 Step Process, and 

updated waste management planning information. 

OEM 

• Utilize the National Response Team multi-agency membership (e.g., National Oceanic and 

Atmospheric Administration, Federal Emergency Management Agency, U.S. Coast Guard) to 

monitor the state of preparedness. Based on these meetings, evaluate if additional resources and 

planning exercises will be needed to address the impacts from changes in the !requency and/or 

severity of extreme weather events. 

• Incorporate the use of Flex Viewer technology as a preparedness tool for climate change impacts. 

• The EOC will build on-going development and use of Flex Viewer technology to graphically 

display information on notifications and incidents in headquarters and all I 0 regional EOCs. 

This technology will allow for improved and up-to-date Geographic Information System 

(GIS} mapping of watersheds and coastal areas impacted by climate change. 

• Incorporate materials on the impacts of climate change as EOC training materials are updated and 

exercises are planned. 

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IV. Disproportionately Affected Populations 

Disproportionate Impact 

While climate change will affect all parts of society, it will have disproportionate effects on particular 

communities, demographic groups and geographic locations-' Cetiain parts of the population, such as 

children, the elderly, minorities, the poor, persons with underlying medical conditions and disabilities, 

those with limited access to infonnation, and tribal and indigenous populations can be especially 

vulnerable to the impacts of climate change. These disproportionately atlected groups may have less 

ability to cope with or adapt to climate change due to economic, social, physical, or health constraints. 

Also, certain geographic locations and communities are particularly vulnerable, such as those located in 

low-lying coastal areas. 

Populations that are already overburdened by environmental contamination, poverty, and environmental 

health issues, may face greater adaptation challenges.6 Though Hurricane Sandy was not necessarily due 

to climate change, the impacts resulting !Tom associated tlooding are similar to what could occur in a 

climate related flooding or storm surge event. Many of the elderly and poor in New York and New Jersey 

suftered significantly from flooding-associated power and heat loss, scarcity of food and supplies, and 

difficulty in accessing medical care. 7 These populations may have lacked the resources to evacuate 

outside the affected areas and as a result could not as readily avoid the adverse conditions resulting from 

the storm. During the recovery and reconstruction phases, vulnerable populations may also have a more 

difficult time due to underlying fuctors such as economic and social resource base and health status that 

can limit their access to resources as well as their ability to take action. 

In addition, a community's location near a vulnerable ecosystem or a contaminated site may also result in 

differential impacts depending on how that ecosystem or site is impacted by climate change. Degraded 

ecosystems or those changed from human activities may place communities near them at higher risk for 

the eftects of climate change. The ecosystems that may have served as a natural buffer against storm 

surge or may have provided valuable cultural, recreational, or other resources can no longer serve this 

purpose due to their altered state.8 For example, an environmental justice community's resilience and 

ability to adapt to climate change may be complicated by their location both near a hazardous waste site 

5 USEPA. (2012). Climate Change Adaptation Plan: Public Rel'iew Draft . 

• ibid. 

7 USEPA. (2012). Region 2 Adaptation Plan. 

' USGCRP. (2009). Global Climate Change Impacts in the United States, Thomas R. Karl, Jeny M. Melil!o, and 

Thomas C. Peterson (Eds.}. Cambridge University Press. 

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Ongoing Partners/rips to Address Vulnerable Populations a11d Places 

OSWER has identitled three focus areas to address environmental justice (EJ) in its programs. These 

focus areas arc designed to integrate ongoing EJ activities and produce tangible outcomes in 

overburdened and underscrvcd communities impacted by OSWER programs. These focus area activities 

listed below are designed to meaningfully advance EJ in OSWER programs, have EJ as the central focus, 

and can produce meaningful, measurable outcomes in low income and minority communities. 

fil Focus Area #1: Incorporate EJ considerations into OSWER programs, policies, and activities by 

addressing disproportionately high, adverse human health and environmental impacts on 

overburdened and underserved populations to the greatest extent practicable and pennitted by law 

1IJ Focus Area #2: Institute a continual learning process through training and the use of agency 

environmental justice tools to help OSWER staff better serve overburdened and underserved 

communities 

[I] Focus Area #3: Expand community engagement approaches and increase partnership building 

which allows overburdened and underserved communities to meaningfully participate in decision 

making activities and address local environmental concerns. 

Ongoing Partuersltips with Tribes 

EPA values its unique government-to-government relationship with Indian tribes in planning and decision 

making. This trust responsibility has been established over time and is timber expressed in the 1984 EPA 

Policy for the Administration of Environmental Programs on Indian Reservations and the 2011 Policy an 

CollSIIitation and Coordination with Indian Tribes. These policies recognize and support the sovereign 

decision-making authority of tribal governments. OSWER works as a partner with many Tribal Nations to 

implement OSWER programs. OSWER's partnership with tribes is based on its tribal strategy.u The 

long-ternl goal of the tribal strategy is to support and provide direction for OSWER's Indian program, 

enhance outreach efforts with tribes on environmental protection in Indian country, and maintain 

consistency with EPA's Indian Policy. OSWER short-tenn strategies include; 

1IJ Ensure appropriate government-to-government consultation and communication with tribal 

leaders in accordance with EPA's 2011 Policy. 

1IJ Build tribal capacity. OSWER provides support through training, financial support, and technical 

assistance to tribes to build capacity in assuming regulatory and program management 

responsibilities. Additionally, OSWER develops guidance and provides for research in 

ll USEPA, Otlice of Solid Waste and Emergency Response. (2008). Tribal Strategy: EPA & Tribal Partnership to 

Presene and Restore Land in Indian Country. 

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will be informed by experiences witb the impacts of previous extreme weather events (e.g., Hurricane 

Katrina and Supcrstorm Sandy) and the subsequent recovery effotts. 

Adaptation actions must recognize and be tailored to the specific issues at the regional, state, local, and 

community levels." OSWER can provide tl'!deralleadership, guidance, infom1ation, and support which 

are vital to planning for and implementing adaptive actions, however, adaptation planning must include 

collaboration between multiple stakeholders including state and local governments, tribes, communities, 

non-governmental organizations and others. 

Vulnerable Popu!atio11 Actio11s 

OSWER will give special attention to populations and places that are most vulnerable to climate related 

impacts to its sites. OSWER will also continue to work to better understand the populations that surround 

these sites in order to expand its knowledge on potential impacts and better protect vulnerable 

communities and places. 

Actions: 

UJ Work with the agency's climate change workgroup and EPA's Oftice of Research and 

Development to ensure consistent mapping data and protocols to better understand the 

intersections of climate impacts and population vulnerability and help to inform future policy and 

office activities and ensure they take evolving climate science into account. 

OZJ Review and update as necessary, existing community engagement tools and training to 

incorporate climate change concerns in how we partaer with communities, based on new 

knowledge relating to climate change. 

In addition, the Community Engagement Network being created by OSWER may provide a valuahle 

internal forum for sharing and gathering information about best practices for engaging communities in 

climate change conversations. 

Tribal Actio11s 

Supporting the development of adaptive capacity among tribes is a priority tor the EPA. Networks and 

partnerships already in place will be used to assist tribes with climate change issues, including Regional 

Tribal Operations Committees, the Institute for Tribal Environmental Professionals and the Indian 

General Assistance Program. Transparency and information sharing will be a locus, in order to leverage 

activities already taking place within EPA ot1ices and tribal governments. 

14 USGCRP. (2009). Global Climate Change Impacts in the United States, Thomas R. Karl, Jeny M. Melillo, and 

Thomas C. Peterson (Eds.). Cambridge University Press. 

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V. Measures and Evaluation 

The actions proposed in this plan expand OSWER's etforts to mainstream and integrate climate change 

adaptation into its programs. OSWER will monitor the status of climate science, particularly as it relates 

to known or anticipated impacts on OSWER's program areas, as well as the etYcctivencss of its program 

activities under changing conditions, and update or adjust its direction as necessary. OSWER commits to 

periodically publicly reporting on progress implementing these actions and what it has accomplished in 

website updates or factsheets. 

To measure and evaluate progress toward completing actions, the workgroup that developed this 

document will continue to meet to discuss progress implementing actions and share information that may 

assist other ot1ices in their cftorts. Collaborative tools may also be utilized to facilitate the discussion. 

VI. Legal and Enforcement Issues 

OSWER works closely with the Oftke of General Counsel (OOC) to ensure that its actions are legally 

supported and in compliance with all applicable laws. OSWER will continue to work with OOC as it 

plans tor and develops programming related to adaptation and the impacts of climate change. 

OSWER will partner with the Office of Site Remediation Enforcement (OSRE) to address enforcement 

concerns related to climate change issues. OSWER and OSRE will work together to develop tools that 

address climate change policy questions as well as site-specific issues. 

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I]] [:] I]] 

[ill ' IIJ I]] . 

I]] [lj] liD 

liD rm . liD 

I]] [ill I]] [lj] [jj'] 

I]] I]] . [ill I]] 

liD liD ' [lj] [ill [ill I]] [ID [ill I]] 

[ij] I]] I]] []] [[] I]] 

Page 25 
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29742.073

Appendix B- Vulnerability Scorecard' 

oiaracteti2ati6r:Cfileria 

Page 27 
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Restoring Land (continued 

G.Jrrent scientific monitoring and sampling protocols on 

Stesmayno longer be effective. 

"'Characierlzatlon 6tt'€ria 

S;lfety procedures on Stes may not reflect likelihood or 

intensity of rurroundlng conditions. 

I H-lf<) 1-'"- -- s 11---- --,, ~- 1--:---

1 ~-1-'- ... ; ····-· -- .. ·--··'·········-· ---- -- ····· ······ 

Availability of utilities a1d transportation Infrastructure 

I =-e~~imited as a l'eSJit of increased impacts to thooo 

OJrroot a5$.1mp!!onsregarding protectiveness of 

remediation and containment methods may not reflect 

d'langlngdimate impacts. 

R!Jriodicevaluationsof implemented remedies may not 

incorporate au dimate ~ge impa:f~ lhdudlng changes 

in frequency and IntenSity that mayimpa:::t remedy 

effectiveness.. 

=···-··.:~ 

~~o~~n~=~=~::;::;~~~~ydtan~asa! ~ oompmmli:'ed resources. ca.R 

10 

10 

10 

!-___:."-- , 4 _4 ___ . ·I 4 ·. I 2 I 12 

3. ;--i 

Page 29 
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Appendix C- OSWER Actions 

Page 3! 
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29742.076

Work with tFApartnersand external experts to monltor evolv!nga:.s;mptions related 

to climate s::ience. Davelop a method for disseminating this information to 09NER 

offJc:es that ens.Jresconsi&ent assumptions are u!:'ed across all activities. 

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Appendix D - Bibliography 

Council on Environmental Quality. (201 0). Progress Report on the !meragency Climate Change 

Adaptation Task Force: Recommended Actions in Support of a National Climate Change Adaptation 

Strategy. Washington, DC. 

IPCC. (2007). Climate Change 2007: Impacts, Adaptation and Vulnerability. Contribution of Working 

Group !/to the Fourth Assessment Report of the fll!ergovernmental Panel 011 Climate Change. M.L. 

Parry. O.F. Canziani. J.P. Palutikof, P.J. van der Linden and C.E.Hanson (Eds.), Cambridge, UK: 

Cambridge University Press. 

IPCC. (2008). Climate Change and Water. Technical Paper of the lntergovemmental Panel on Climate 

Change. B.C. Bates, Z.W. Kundzewicz. S. Wu and J.P. Palutikof(Eds.). Intergovernmental Panel on 

Climate Change. IPCC Secretariat, Geneva. 

!PCC. (2012). ··summary for Policymakers." In: Managing 1he Risks of Extreme Events and Disasters to 

Advance Climate Change Adaptation. C. B. Field, V. Barros, T.F. Stocker, D. Qin, D.J. Dokken, K.L. Ebi, 

M.D. Mastrandrea,KJ. Mach, G.-K. Plattner, S.K. Allen, M. Tignor, and P.M. Midgley {Eds.). A Special 

Report of Working Groups I and If of the Intergovernmental Panel 011 Climate Change. Cambridge 

University Press, Cambridge, UK, and New York, NY, USA. 

NRC. (2010). America's Climate Choices: Adapting to the Impacts of Climate Change. National 

Research Council. (http://americasclimatechoices.org/} 

USEPA, Oftice of Solid Waste and Emergency Response. (2008). Tribal Strategy: EPA & Tribal 

Partnership to Preserve and Resrore Land il1 Indian Country. 

(http://www.epa.gov/oswer/tribal/pdfs!oswer_tribal_strategy.pdf) 

US EPA. (2012). Climate Change Adaptation Plan: Public Review Drajl. 

USEPA. Na/ional Water Program Strategy: Response to Climate Change. EPA 800-R-08-00l, 

September 2008. ( http://water.epa. gov /sci tech/ cl imatechange/strategy .cfm.) 

USEPA. (2012). National Water Program 2012 Strategy: Response to Climate Change. EPA-850-K-12-

004. 

(http://water.epa.gov/scitech/climatechange/upload/epa_ 2012 _climate_ water_ strategy _full_report_tinal.p 

dt) 

USEPA. \2011 ). Policy Statemelll on C/imatf!·Change Adaptation. 

(http://www.epa.gov/climatechange/Downloads/impacts-adaptation/adaptation-statement.pdt) 

US EPA. \2010). Community Engagement Initiative Action Plan. 

\http://www.epa.gov/oswer/docs/cei_ action_plan_l2-09.pdf) 

USGCRP. (2009). Global Climate Change Impacts in the United States. Thomas R. Karl, Jerry M. 

Melillo, and Thomas C. Peterson (Eds.). Cambridge University Press. 

(bttp://library.globalchange.gov/products/assessments/2009-national-climate-assessment/2009-globalclimale-change-impacts-in-the-united-states) 

Page 35 
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29742.078

GREG WALDEN, OREGON 

CHAIRMAN 

Mr. Barry Breen 

ONE HUNDRED FIFTEENTH CONGRESS 

FRANK PALLONE, JR., NEW JERSEY 

RANKING MEMBER 

C!Congres55 of tbe Wntteb ~Mates 

j!)ouse of l\epresentatiiles 

COMMITTEE ON ENERGY AND COMMERCE 

2125 RAvsuR"J HousE OFFICE ButLDING 

WASHINGTON, DC 20515--6115 Mi!!ortty l201!n&<!977 

Mn-wnty IJ\l() :125 :1641 

February !5, 20!8 

Principal Deputy Assistant Administrator 

Office of Land and Emergency Management 

U.S. Environmental Protection Agency 

1200 Pennsylvania Avenue, N.W. 

Washington, DC 20460 

Dear Mr. Breen: 

Thank you for appearing before the Subcommittee on Environment on January 18, 2018, to 

testify at the hearing entitled "Modernizing the Superfund Cleanup Program." 

Pursuant to the Rules of the Committee on Energy and Commerce, the hearing record remains 

open for ten business days to permit Members to submit additional questions for the record, which are 

attached. The format of your responses to these questions should be as follows: (I) the name of the 

Member whose question you are addressing, (2) the complete text of the question you are addressing in 

bold, and (3) your answer to that question in plain text. 

To facilitate the printing of the hearing record, please respond to these questions with a 

transmittal letter by the close of business on Friday, March 2, 20 IS. Your responses should be mailed to 

Kelly Collins, Legislative Clerk, Committee on Energy and Commerce, 2125 Rayburn House Office 

Building, Washington, DC 20515 and e-mailed in Word format to Kelly.Collins@mail.house.gov. 

Thank you again for your time and effort preparing and delivering testimony before the 

Subcommittee. 

AT~ A 

~hit~"--- Chairman 

Subcommittee on Environment 

cc: The Honorable Paul Tonko, Ranking Member, Subcommittee on Environment 

Attachment 
143 


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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 

WASHINGTON, D.C. 20460 

The Honorable John Shimkus 

Chairman 

Subcommittee on Environment 

Committee on Energy and Commerce 

U.S. House of Representatives 

Washington, D.C. 20515 

Dear Chairman Shimkus: 

MAR 1 3 2018 OFFICE OF 

CONGRESSIONAL AND 

INTERGOVERNMENTAl 

RELATIONS 

Enclosed please find the U.S. Environmental Protection Agency's responses to the 

Subcommittee's Questions for the Record following the January 18, 2018, hearing titled 

"Modernizing the Superfund Cleanup Progran1," 

I hope this information is helpful to you and the members of the Subcommittee. If you have 

further questions, please contact me or your staff may contact Carolyn Levine in my office at 

levine.carolyn@epa.gov or (202) 564-1859. 

Enclosure 

Internet Address {URL} • http'f/www epa gov 

Reeyeled/Recyclable • Prmted W!th Vegetable 01! Based lnJ.:s on 100% Postcorsumet. Process Ch!o;-Jne Free Recycled Paper 
144 


29742.080

U.S. Environmental Protection Agency 

Responses to Questions for the Record 

House Committee on Energy and Commerce 

Subcommittee on Environment 

Hearing on 

"Modernizing the Superfund Program" 

January 18, 2018 

The Honorable John Shimkus 

Enclosure 

t. EPA retains money received through settlements with Potentially Responsible Parties 

(PRPs) in site-specific accounts to conduct planned future cleanup work at the site based 

on the terms of the settlement agreement. Is EPA constrained or prevented from using 

special account funds to get these sites cleaned up? 

Response: While EPA has the authority to collect funds from parties to support Superfund 

investigations and cleanups, site specific account are set up separately and distinctly and may 

only be used for the sites and uses outlined in the settlement(s) with the party. Section 122(b)(3) 

of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) 

authorizes EPA to retain and use funds received pursuant to a settlement agreement with a party 

to carry out the purpose of that agreement. Funds are deposited in Superfund site specific 

special accounts for cleanup at the sites designated in individually negotiated settlement 

agreements. Special accounts are generally used before the agency's annually appropriated 

funds for response actions identified in the terms of the settlement agreements. Special accounts 

are crucial to EPA's ability to continue to fund investigations and construction projects at sites 

across the country and save taxpayer dollars for those sites where no viable or cooperating 

responsible party has been identified. 

a. If not, why is the balance in the account so high and why is the money not being 

spent? 

Response: EPA carefully manages the available resources in special accounts for site response 

work. EPA has plans to spend approximately $1.3 billion of currently available special account 

funds over the next 5 years, but use of the funds are also planned for much further into the 

future to continue activities such as conducting five-year reviews or remedy optimization where 

waste has been left in place. In addition, the agency continues to receive site-specific settlement 

funds that are placed in special accounts each year, so progress on actual obligation and 

disbursement of funds may not be apparent upon review solely of the cumulative available 

balance. In FY 2017, EPA deposited more than $289 million into special accounts and disbursed 

and obligated over $357 million from special accounts. 
145 


29742.081

b. Does CERCLA need to be updated to clarify what special account funds may be 

used for? 

Response: The Administration's "Legislative Outline for Rebuilding Infrastructure in America" 

includes legislative proposals that could improve EPA's ability to facilitate cleanup and 

redevelopment of Superfund sites through the use of special accounts. The proposals include 

options for building inflexibilities in the use of special account funding and the ability to enter 

into administrative agreements with additional classes of entities such as bona fide prospective 

purchasers. 

2. The recommendations of tbe Superfund Task Force included a recommendation that EPA 

"maximize the use of special accounts to facilitate site cleanup and/or redevelopment." 

Other than developing guidance, what is the plan for implementing this recommendation? 

Response: The EPA's Special Accounts Senior Management Committee, comprised of agency 

senior managers, is responsible for the management and use of special accounts. The Committee 

monitors the use of special account funds on an ongoing basis to ensure that EPA is conducting 

cleanups and using the funds as quickly and efficiently as possible to address Superfund sites. 

The Superfund Task Force identified a gap in current special account guidance, which will be 

addressed by providing clarifying guidance to EPA regions on the use of special account funds. 

The guidance will clarify that in appropriate circumstances, special account funds may be used 

as an incentive for potentially responsible parties or bona fide prospective purchasers (BFPPs) 

who agree to conduct CERCLA response actions at a site to address contamination and facilitate 

redevelopment of the site. Providing available special account funds to a BFPP that agrees to 

conduct CERCLA response actions will help address risks posed by Superfund sites and 

facilitate redevelopment. 

In addition, the Administration's "Legislative Outline for Rebuilding Infrastructure in America" 

includes legislative proposals that could improve EPA's ability to facilitate cleanup and 

redevelopment of Superfund sites through the use of special accounts. 

3. EPA drafted guidance that is expected to allow for or encourage the provision of 

Superfund's "special account" funds to bonafide prospective purchasers (BFPPs) as an 

incentive to conduct work on Superfund sites. Does EPA have the legal authority to 

reallocate special account funds in this way? 

Response: The legal authority for using special accounts is found in Section 122(b)(3) of 

CERCLA, 42 U.S.C. § 9622(b)(3), which authorizes EPA to "retain and use [funds] for 

purposes of carrying out the agreement." This authority enables EPA to use special account 

funds for EPA-lead cleanup at a site, or to provide those funds to other parties who agree to 

perform an EPA selected response action at that site under a CERCLA agreement. Consistent 

with this authority, CERCLA agreements generally establish that special account funds can be 

"retained and used to conduct or finance response actions at or in connection with the Site, or to 

be transferred by EPA to the EPA Hazardous Substance Superfund." Therefore, BFPPs may be 

eligible, at EPA's discretion, to receive special account funds when they conduct CERCLA 
146 


29742.082

response actions at a site pursuant to an agreement under CERCLA that is consistent with the 

response actions agreed to in the settlement agreement that created the account. 

4. One of the recommendations of the Superfund Task Force was the use of adaptive 

management. Does EPA intend to incorporate adaptive management into the Superfund 

cleanup program and if so, how? 

Response: The agency formed an Adaptive Management Workgroup following issuance of the 

Task Force recommendations. This workgroup is exploring options for incorporating adaptive 

management into the Superfund cleanup program. At this time, formal decisions have not yet 

been made regarding implementation. 

5. How can EPA use incentives to encourage responsible parties to cooperate and come to the 

table early to avoid the increased transaction costs associated with protracted 

negotiations? 

a. What incentives can EPA utilize to clean up a Superfund site faster and more 

efficiently? 

b. How can EPA usc enforcement authorities as leverage to get a cleanup started or to 

help reach settlement? 

Response: One of the principal goals of the Superfund Task Force is to speed up cleanup; these 

questions go to the core of Recommendation 16: Provide Reduced-Oversight Incentives to 

Cooperative, High-performing P RPs, and Make Full Use of Enforcement Tools as Disincentives 

for Protracted Negotiations, or Slow Performance Under Existing Cleanup Agreements. The 

agency is examining these issues, as well as others, to identify and evaluate its existing best 

practices, as well as propose future methods to encourage timely cleanup and decrease 

transaction costs. EPA expects to issue guidance pursuant to this recommendation later this 

fiscal year and can provide an updated response to these questions at that time. 

6. Please identify any statutory changes EPA believes need to be made to improve the 

Superfund cleanup program or to implement the recommendations of the Superfund Task 

Force. 

Response: The Administration's "Legislative Outline for Rebuilding Infrastructure in America" 

includes several legislative proposals that could improve EPA's ability to facilitate cleanup and 

redevelopment of Superfund sites. The proposals include additional funding opportunities such 

as through the Water Infrastructure Finance and Innovation Act (WIFIA) program and the 

creation of a low-interest revolving loan fund, as well as options for building inflexibilities in 

the use of Superfund funds and the ability to enter into administrative agreements with 

additional classes of entities such as bona fide prospective purchasers. 

7. Would EPA support delegating certain aspects of the Superfund cleanup program to 

States that seek such authorization? 

2 
147 


29742.083

Response: It is not necessary at this time to add additional delegation of authority to the states. 

The partnership between EPA and the states is an existing cornerstone principle under CERCLA 

and the National Contingency Plan. CERCLA includes key roles for states in the federal 

Superfund remedial program, and where appropriate, enables states to be designated as the lead 

agency for remedial action. In addition, EPA's policy calls for state concurrence in listing sites 

on the National Priorities List (NPL) and consults with the states on cleanup decisions. Through 

cooperative agreements, EPA provides states with funding to conduct work under the Superfund 

program including, but not limited to, site assessment, site characterization, review of remedy 

decision documents, remedy implementation and enforcement actions. In FY 2017, EPA 

provided approximately $58 million to states to conduct activities at NPL sites, and to support 

state Superfund programs. Cost recovery authority is available to states under CERCLA. 

Separately, state cleanup programs already address a wide variety and large number of 

contaminated sites that do not make it on the NPL. EPA will continue to seek and expand 

opportunities afforded by the existing statute to work closely with states to efficiently leverage 

our respective cleanup resources. 

The Honorable David McKinley 

I. Mr. Breen- It is our understanding, upon completion of assessment in the Pre-Remedial 

Program, sites are reviewed and considered for listing on the NPL. If a site is 

contaminated but not determined to be appropriate for the NPL, recommendations are 

made for remediation outside of the CERCLA Program. However, these 

recommendations are not enforced by EPA, and property owners without financial 

interest often do not act on the recommendations. These sites are generally encouraged to 

enter a state Voluntary Remediation Program, but the property owners cannot be forced 

to participate in a voluntary program. This issue, combined with a pressure to not list new 

sites on the NPL, has created a "black hole" where contaminated sites without proper 

remediation lay dormant and potentially dangerous for years. What reforms can be done 

to address this issue? Is any legislation needed to remedy the problem? 

Response: The Superfund program's site assessment/listing multi-phase evaluation process is 

used to determine and implement the appropriate responses to releases of hazardous substances, 

pollutants or contaminants to the environment. In close coordination with states and tribes, this 

process informs whether Superfund is the most appropriate program for cleanup or if a different 

authority would be a better fit (e.g., state RCRA corrective action program, state Superfund 

program, state voluntary cleanup program, or some other federal authority). 

In the case of a referral of an NPL-eligible site to a state cleanup program, including a state 

voluntary remediation program, EPA uses the "Other Cleanup Activities" designation. EPA is 

not directly involved in the enforcement or oversight but does retain these sites in the agency's 

Superfund active site inventory and monitors the site until a state completes cleanup or 

determines that cleanup is warranted. In addition, should site conditions or cleanup plans change 

or if cleanup progress stalls, the state can refer the site back to EPA for reassessment under 

Superfund. The statute currently provides for a state to establish and submit, for EPA's 

consideration, state priorities for remedial action among known releases and potential releases. 

3 
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29742.084

The Honorable Richard Hudson 

I. Mr. Breen, thank you for coming before the committee today. In your testimony you 

mention that cleaning up Superfund sites is not only a top priority for Administrator 

Pruitt, but also an important aspect of the EPA's core mission. In my home state of North 

Carolina there are 48 Superfund sites, six of which are in my district. These sites vary 

dramatically in how long they've been on the list ranging from 1984 to 2008. With that in 

mind how do you strike the balance between removing sites from the list and taking 

immediate actions to mitigate risk at new sites? 

Response: Addressing new sites and removing sites from the National Priorities List (NPL) is a 

balance. The Superfund program places the highest priority on addressing sites that warrant an 

emergency response or immediate removal action to address imminent risk to human health or 

the environment. The program also lists sites to the NPL that pose a threat to human health and 

the environment and require a longer term cleanup approach. Sites or parts of sites that are 

deleted from the NPL, are in the last stages of the Superfund process and no longer pose an 

unacceptable risk to human health and the environment. Long-term remedial action is typically 

necessary before a site is ready for deletion from the NPL. Deletion is an administrative process 

to document that all response actions have been fully implemented and remedial objectives have 

been achieved. EPA's appropriated resources for remedial actions, which are part a longer-term 

cleanup process that may eventually lead to a site deletion, are separate from the agency's 

appropriated resources for investigation and/or removal at newer sites that may pose immediate 

risks. 

2. As part of the Superfund program it requires coordination with the EPA, Regional bodies, 

and individual states. Can you describe the level of coordination of these efforts? Is the 

EPA in a position to effectively lead these efforts or should it take the role more generally 

as a facilitator? Should more power be delegated down to the states? 

Response: The Comprehensive Environmental Response, Compensation, and Liability Act 

(CERCLA) includes key roles for states and tribes in the federal Superfund remedial program. 

EPA's regional offices closely coordinate with their state and tribal counterparts on each site. 

CERCLA also enables states and tribes to be designated as the lead agency for remedial action 

in lieu of EPA. 

Through cooperative agreements, EPA provides states and tribes with funding to conduct work 

under the Superfund program including site assessment, remedial action, review of remedy 

decision documents and enforcement actions. In FY2017, EPA provided approximately $58 

million to states to conduct activities at NPL sites and to support state and tribal Superfund 

programs. 

EPA's policy calls for state and tribal concurrence in placing sites on the NPL. States and tribes 

can ask that EPA defer placing a site on the NPL if the state or tribe, or another party under a 

state or tribal agreement, is conducting a response action under the state or tribe's response 

program to protect human health or the environment, or if the state or tribe is actively pursuing 

an agreement with a responsible party to perform a response action. State and tribal cleanup 

4 
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29742.085

programs are used to address a wide variety and large number of contaminated sites that are not 

listed on the NPL. 

The agency continues to seek and expand opportunities afforded by the existing statute to work 

closely with states to efficiently leverage our respective cleanup resources and responsibilities. 

The Honorable Tim Walberg 

1. On December 8, 2017 the Administrator released a list of 21 sites that EPA targeted for 

"immediate and intense attention." The list is comprised of sites with "critical, near-term 

milestones" that EPA determined would benefit from Administrator Pruitt's direct 

engagement. 

a. Who completed the analysis? 

b. Other than impending milestones, what factors were considered in adding sites to 

the list? 

c. What milestones rose to the level of being "critical" and resulted in the site being 

added to the list? 

d. If no money is attached to being on the top 2llist- what does it mean to be on the 

list? 

Response: In formulating the list, senior career Superfund staff at EPA headquarters and in each 

region were consulted and they identified potential sites that may be worthy of special attention 

now or in the future to advance those sites through the cleanup process. The recommended sites 

represent the EPA regions' best professional judgment where the Administrator's involvement 

would facilitate site progress. The Administrator reviewed the recommendations and personally 

selected the sites for inclusion. The list includes sites that require timely resolution of specific 

issues to expedite cleanup and redevelopment efforts. The specific issue or milestone that may 

benefit from the Administrator's attention is noted for each site on the list, which can be found 

on the EPA website at https:/ /www.epa.gov /superfundlsuperfupd-site_s-targeted-immediateintense-action. 

The list is designed to spur action at sites where opportunities exist to act quickly and 

decisively. The Administrator will receive regular updates on each ofthese sites. Further, the list 

is intended to be dynamic and sites will move on and off the list as appropriate. At times, there 

may be more or fewer sites based on where the Administrator's attention and focus is most 

needed. 

2. On January 17, 2018 EPA released another list of sites, these with the greatest expected 

redevelopment and commercial potential- the Redevelopment Focus List. 

a. Were all Superfund sites analyzed and just the 31 on the list made the cut? 

b. Who made the decision and what factors were considered? 

c. The list directs interested developers and potential owners to Superfund sites with 

redevelopment potential, but notes that it does not necessarily include all possible 

sites with similar potential. What distriguished these 31 sites from the others? 

5 
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29742.086

d. What does it mean to be on this list? 

Response: In fonnulating the Redevelopment Focus List, EPA headquarters staff reached out to 

the EPA regional Superfund Redevelopment Initiative (SRI) coordinators to inquire about sites 

where there has been a strong interest in reuse or at sites appearing to have the strongest neartenn reuse potential. This inquiry fonned an initial list. Consistent with the Task Force 

Recommendation #33: Focus Redevelopment Efforts on 20 NPL Sites with Redevelopment 

Potential and IdentifY 20 Sites with Greatest Potential Reuse, EPA headquarters staff then 

narrowed the list based on the following criteria: 

Previous outside interest; 

Transportation access; 

Land values; 

Other critical development drivers. 

This refined list of sites was shared with the agency's regional Superfund offices, which vetted 

the sites with SRI experts, remedial project managers, attorneys and regional management. The 

regional offices also contacted property owners, as appropriate, to let them know that EPA was 

considering their sites for the list, and reached out to EPA's state counterparts to ask if they had 

additional sites with redevelopment potential that the Agency should consider. Once EPA 

headquarters and the regions reached agreement, the list was made public. 

The Redevelopment Focus List is intended to easily direct interested developers and potential 

owners to Superfund sites with redevelopment potential. EPA plans to focus redevelopment 

training, tools and resources towards the sites on this list. The agency also plans to work with 

developers interested in reusing these and other Superfund sites; identify potentially interested 

businesses and industries to keep them apprised of redevelopment opportunities; and continue to 

engage with community groups in cleanup and redevelopment activities to promote the 

successful redevelopment and revitalization of their communities. This list is intended to be 

dynamic with sites moving on and off the list as appropriate. 

The current list of sites may be found at: https://www.epa.gov/superfund-redevelopmentiniti<J!iVJ;[~].!perfund-redevelopment-focus-lisJ: 

For additional information about the Superfund Redevelopment Initiative, please go to: 

bttP~s://www.epa.gov/superfund-redevelopment-initiative 

3. Similarly, the EPA also relies on responsible parties to cooperate in remediation efforts. 

How can EPA use incentives to encourage responsible parties to cooperate and come to the 

table early in order to avoid the increased transaction costs associated with protracted 

negotiations? What incentives can EPA utilize in order to clean up a Superfund site faster 

and more efficiently? 

Response: One of the principal goals of the Superfund Task Force is to speed up cleanup, and 

EPA is working to address these issues under the Task Force Report Recommendation 16: 

Provide Reduced-Oversight Incentives to Cooperative, High-performing PRPs, and Make Full 

Use of Enforcement Tools as Disincentives for Protracted Negotiations, or Slow Performance 

6 
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29742.087

Under Existing Cleanup Agreements. The agency is planning to identify and evaluate its 

existing best practices in this area, as well as propose future methods to encourage timely 

cleanup and decrease transaction costs. EPA expects to issue guidance pursuant to this 

recommendation later this fiscal year and can provide an updated response to these questions at 

that time. 

The Honorable Paul Tonko 

1. Migratory Pollutants at Sites 

a. How does EPA consider the impact of migratory pollutants on natural resources 

outside a defined cleanup unit when determining 5-Year Review findings and 

issuing Certificates of Completion? 

Response: Site-specific monitoring plans are developed for projects where waste is left in 

place above levels that allow for unrestricted land and resource use. As part of a five-year 

review, the results of the monitoring and other available information are assessed to 

determine whether the remedy is or will be protective of human health and the environment. 

As part of this assessment, an examination of contaminant characteristics and toxicity, such 

as the nature and extent of contaminant migration and the effects on receptors, including 

ecological receptors, is considered. If monitoring indicates a change in site conditions or 

receptors, EPA will determine whether additional actions are necessary. Certification of 

Remedial Action Completion is issued when EPA determines that the remedial action has 

been performed in accordance with the consent decree and generally when the remedyspecific performance standards have been achieved. The consideration of monitoring data 

when making this determination is based on the language in the specific consent decree as 

well as the requirements outlined in the accompanying remedial design/remedial action 

statement of work. 

b. What experience does EPA have relying upon natural attenuation as the principle 

strategy for a site when there is a possibility that it could result in contamination of 

downstream resources? 

Response: EPA typically employs monitored natural recovery (MNR) at sediment sites as a 

component of remedies that use dredging and/or capping technologies. Where remedies employ 

MNR, EPA applies its extensive experience in monitoring and assessing the impacts both on the 

site and the downstream to ensure the anticipated recovery is actually occurring. As part of the 

agency's five-year review process, EPA will evaluate monitoring information to assess the 

remedy's protectiveness and, if additional action is deemed appropriate to protect human health 

and the environment, the agency will initiate actions to do so. 

2. Certificate of Completion 

a. What are the conditions upon which a Certificate of Completion is issued to the 

liable party for a Superfund cleanup? 

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Response: The exact conditions upon which a Certificate of Completion is issued to the liable 

party for a Superfund Site depends upon what the particular CERCLA consent decree states. 

CERCLA Section 122(f)(3), 42 U.S.C. § 9622(f)(3), states "a covenant not to sue for future liability 

to the United States shall not take effect until the President certifies that remedial action has been 

completed in accordance with the requirements of this chapter at the facility that is the subject of 

such covenant." EPA's guidance states: 

EPA interprets completion of the remedial action as that date at which remedial construction 

has been completed. Where a remedy requires operational activities, remedial construction 

would be judged complete when it can be demonstrated that the operation of the remedy is 

successfully attaining the requirements set forth in the [Record of Decision] and [Remedial 

Design]. 

The exact point when EPA can certify completion of a particular remedial action 

depends upon the specific requirements of that remedial action. Each consent decree 

should include a detailed list of those activities which much be completed before 

certification can occur. 

Certification of completion under section 122(£)(3) does not in any way affect a 

settling party's remaining obligations under the consent decree. All remedial 

activities, including maintenance and monitoring, must be continued as required by 

the terms of the consent decree. 

Covenants Not to Sue Under SARA, 52 Fed. Reg. 28036, at 28041. 

b. What is the role of the Record of Decision and Consent Decree in this context? 

Response: Performance standards for cleanups are often established in Records of Decision and, as 

described above, EPA's Model Remedial Design/Remedial Action Consent Decree generally ties 

the issuance of the Certification of Remedial Action Completion to the achievement of those 

standards. 

3. Hudson River Site 

a. Does the agency intend to wait until the Remediation Goals have been achieved and 

the remedy is protective of human health and the environment before issuing the 

Certificate of Completion? 

Response: The Consent Decree for the Hudson River PCBs site does not require EPA to wait until 

the Remediation Goals have been achieved before issuing the Certification of Completion of the 

Remedial Action. With regard to this certification, the Consent Decree states: 

If EPA concludes, based on the initial or any subsequent report requesting Certification of 

Completion of the Remedial Action and after a reasonable opportunity for review and 

comment by the State and by the Federal Trustees for Natural Resources, that the Remedial 

Action has been performed in accordance with this Consent Decree, EPA will so certify in 

writing to [General Electric]. This certification shall constitute the Certification of 

Completion of the Remedial Action for purposes of this consent decree including, but not 

limited to, Section XXI (Covenants Not to Sue by Plaintiff). Certification of Completion of 

8 
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29742.089

the Remedial Action shall not affect [General Electric's] remaining obligations under this 

Consent Decree. [Consent Decree, parag. 57.d] 

The Consent Decree defines Remedial Action as "those activities, except for Remedial Design and 

Operation, Maintenance and Monitoring, to be undertaken to implement the [2002 Record of 

Decision], in accordance with the [Statement of Work), the final Remedial Design plans and 

reports, the Remedial Action Work Plans, and other plans approved by EPA." (Consent Decree, 

parag. 4) General Electric has informed EPA that it believes that it completed the Remedial Action 

portion of the cleanup as required by the Consent Decree and has requested EPA's Certification of 

Completion of the Remedial Action. EPA is reviewing input from the New York State Department 

of Environmental Conservation, the National Oceanic and Atmospheric Administration, the U.S. 

Fish & Wildlife Service, and the New York State Attorney General's office as it considers GE's 

request. 

The Certification of Completion of the Remedial Action does not in any way suggest that the 

cleanup is finished. In the Record of Decision, EPA projected that construction of the remedy 

(including dredging, backfilling, and habitat reconstruction) would be performed over six years, to 

be followed by decades of"monitored natural attenuation" or "MNA," during which PCBs 

remaining in the river after dredging would gradually decrease until the remedial goals are 

achieved. MNA is also part of the cleanup, and during the entire period ofMNA, GE is required to 

perform "Operation, Maintenance and Monitoring" of the remedy, which includes an extensive 

program that includes monitoring of sediments, water quality and fish, as well as monitoring of the 

caps that were installed on portions of the river bottom, and repairing those caps should any damage 

occur. Once all the work required by the consent decree is complete, the consent decree authorizes 

EPA to issue a further certification, known as a Certification of Completion of the Work. We do not 

anticipate issuing this certification any time before the remedial goals are achieved. 

EPA is currently working with our state partner, the New York State Department of Environmental 

Conservation (NYSDEC) to review some 1,800 sediment samples collected by NYSDEC. EPA is 

working in cooperation with NYSDEC to review the data and work towards developing joint 

findings on the results of the sampling. As such, EPA is refraining from any decision making 

regarding the issuance of the Certificate of Completion of Remedial Action until the data from these 

samples have been fully analyzed. 

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29742.090

GREG WALDEN, OREGON 

CHAIRMAN 

Mr. Stephen Cobb 

Chief, Land Division 

ONE HUNDRED FIFTEENTH CONGRESS 

FRANK PALLONE, JR., NEW JERSEY 

RANKING MEMBER 

C!Cottgtess of tbe mnttel:l $$tates 

j!)onlle of ii\eprcrseutatillell 

COMMITTEE ON ENERGY AND COMMERCE 

2125 RAYBURN Housr OrFIC£ BuiLDING 

WASHINGTON, DC 20515-6115 Mi!i(11!\y 1:?1;11):!25-2927 

r-.·tmnntv {?0:?) :;o~, :JMt 

February 15,2018 

Alabama Department ofEnvironmenlal Management 

1400 Coliseum Boulevard 

Montgomery, AL 361 10 

Dear Mr. Cobb: 

Thank you for appearing before the Subcommittee on Environment on January 18, 2018, to 

testify at the hearing entitled "Modernizing the Superfund Cleanup Program." 

Pursuant to the Rules of the Committee on Energy and Commerce, the hearing record remains 

open for ten business days to permit Members to submit additional questions for the record, which are 

attached. The format of your responses to these questions should be as follows:(!) the name of the 

Member whose question you are addressing, (2) the complete text of the question you are addressing in 

bold, and (3) your answer to that question in plain text. 

To facilitate the printing of the hearing record, please respond to these questions with a 

transmittal letter by the close of business on Friday, March 2, 2018. Your responses should be mailed to 

Kelly Collins, Legislative Clerk, Committee on Energy and Commerce, 2125 Rayburn House Office 

Building, Washington, DC 205 J 5 and e-mai!ed in Word format to Kelly.Coltins@mail.house.gov. 

Thank you again for your time and effort preparing and delivering testimony before the 

Subcommittee. 

cc: The Honorable Paul Tonka, Ranking Member, Subcommittee on Environment 

Attachment 
155 


29742.091

LANCE R. l.l!FLEtJR 

DIRECTOR 

May 1, 2018 

Kelly Collins 

Legislative Clerk 

E Alabama Department of Environmental Management 

adem.alabama.gov 

1400 Coliseum Blvd. 3611(}.2400 • Post Office Box 301463 

Montgomery, Alabama 36130.1463 

(334) 271-7700 • FAX (334) 271-7950 

U.S. House of Representatives- Committee on Energy and Commerce 

2125 Rayburn House Office Building 

Washington, DC 20515 

Dear Ms. Collins: 

Please find attached responses to additional questions requested by members of the 

Committee on Energy and Commerce in regards to my testimony at the recent hearing entitled 

"Modernizing the Superfund Cleanup Program." In preparing these responses, I have 

incorporated our experience in Alabama, as well as obtaining input and examples from my 

colleagues from other States and the Association of State and Territorial Solid Waste 

Management Officials (ASTSWMO). 

Thank you for the opportunity to provide these additional clarifications and to assist the 

Committee with this important issue. 

Please contact me at (334) 271-7732 or via electronic mail at sac(iiladem.alabama.gov should 

you or the Members have any additional questions. 

Land Division 

Attachment 

cc: Dania Rodriguez 

KAYIVEY 

GOVERNOR 

Birmingham Branch 

110 Vulcan Road 

Birmingham, A.l 35209-4702 

(206)942-5168 

DeoaturBranch 

2715 Sandlin Road, S,W. 

Decatur, Al 35603·1333 

(256) 353-1713 

{256)340-9359(FAX) 

MobU.Bram:h 

2Z04PerimeterR:oad 

Mobile, Al 36615-1131 

(251) 450-3400 

MobileoCoa5tal 

36640auph!nstreet,Sulte6 

Mobile, Al 36608 

(251) 304-1176 

(205) 941-1603 (FAX} (251) 479·2593 (FAX) (251) 304-1189(FAX) 
156 


29742.092

Attachment---Reponses Additional Questions for the Record regarding the Testimony of 

Stephen A. Cobb before the Committee on Energy and Commerce in the Hearing Entitled 

"Modernizing the Superfund Cleanup Program" 

The Honorable John Shimkus 

1. How can States help reduce the number of sites on the National Priorities list (NPL)? 

Reduction in the number of sites on the NPL begins with prevention, and the inherent 

value of early intervention and prevention programs in reducing the need for after-thefact remediation programs has repeatedly been underscored. States play key roles in 

these prevention efforts through the implementation of preventative regulations, such 

as those under the Resource Conservation and Recovery Act (RCRA). Today fifty states 

and territories have been authorized to implement their own base RCRA regulations in 

lieu of the federal program (US EPA, n.d.). These State programs, like RCRA, are 

designed to prevent releases of wastes into the environment, mitigating public health 

threats and environmental damage caused by such releases. RCRA and authorized State 

programs ensure that past and present releases of waste and hazardous constituents 

are investigated, monitored, and cleaned-up to protective levels. This provides 

incentives to industry to prevent future releases and places the burden on the industry 

owner/operator, not the taxpayer, to address known releases (ASTSWMO, 2011). In 

summary, these efforts prevent future NPL sites. Continued support of RCRA and 

authorized State programs by EPA and Congress is essential for maintaining this level of 

prevention. 

Another key component to reducing the number of NPL sites is actually in the Superfund 

Site Assessment Program, which identifies actual and potential releases of hazardous 

substances and their eligibility for inclusion on the NPL. The Site Assessment Program is 

conducted in partnership with many States. Through this process, where the majority of 

sites are screened out from inclusion on the NPL, states have been able to identify sites 

for action by state cleanup programs. A 2011 study by the Association of State and 

Territorial Solid Waste Management Officials (ASTSWMO) noted that almost 50 percent 

of study sites identified through the Site Assessment Program were undergoing or had 

already completed non-NPL cleanup/closure actions (ASTSWMO, 2011). This 

demonstrates the value of the Site Assessment Program beyond supporting NPL listing 

and its importance to the national cleanup effort. ASTSWMO has recommended 

additional federal funding to States to continue support and grow this phase of the 

Superfund process (ASTSWMO, 2017). 

Page 1 
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29742.093

For sites already on the NPL, States implement a variety of robust cleanup programs, 

including both mandatory and voluntary programs, and have gained experience and an 

advanced understanding of assessing, investigating, remediating, and monitoring 

contaminated sites (Cobb, 2018). Working under cooperative, work-sharing agreements 

that provide detailed but flexible scopes of work and adequate funding, EPA can 

leverage this advanced knowledge and experience by placing more sites, particularly 

PRP-Ied cleanups, under State control. 

One of the areas that EPA itself has identified for improvement is the identification of 

tools for third party investors interested in the reuse of Superfund sites {USEPA, 2017). 

Many states have robust brownfield redevelopment programs and other tools that can 

facilitate expedited reviews, remedy implementation and pragmatic yet protective long 

term monitoring as may be required. Investors require a level of certainty not typically 

found in the Superfund program. The States can assist EPA in facilitating and negotiating 

agreements with third parties {Steers, 2017). Leveraging additional human and 

monetary resources by working cooperatively with State co-regulators and third-party 

investors will lead to faster cleanups and ultimately fewer sites remaining on the NPL. 

2. How can States take more of a leadership role in addressing sites on the NPL? 

As I stated in my testimony, in the four decades following the enactment of CERCLA, 

States have implemented many different types of comprehensive cleanup programs 

under multiple authorities. In fact, the vast majority of cleanups of contaminated sites 

across the U.S. have been conducted under State oversight. CERCLA is only one tool in 

our cleanup toolbox and EPA's Superfund program must begin to recognize this. 

States are already well positioned to take on more responsibilities and greater 

leadership roles in Superfund cleanups. Making this a reality begins not with the States 

themselves but with EPA. First of all, EPA's Superfund program must end the practice of 

"federalizing" sites under CERCLA where a State program is already in place overseeing 

all or portions of the cleanup, as they have done in Alabama and many other states. We 

have seen this result in losses of progress and momentum of cleanups by having to shift 

into a new regulatory oversight structure, particularly the highly procedural and 

inflexible structure of Superfund. Secondly, EPA must be willing to defer more CERCLA 

cleanup activities, specifically including the decision-making role for deferred sites, 

particularly those at PRP-Ied sites. The NCP currently allows for this, but many times 

EPA and State activities are conducted in tandem. EPA allowing States to take the lead 

on more cleanup actions avoids duplication and redundancy. 

Page 2 
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29742.094

Deferral of site management without concurrent deferral of the decision-making role 

too often results in EPA re-reviewing work already completed by states, and also results 

in sites/states being unwilling to move sites forward without EPA concurrent review. 

3. Your written testimony discussed allowing States to directly implement certain parts 

of the remedial and removal process---would you please explain why States may be 

more effective at directly implementing certain aspects of the Superfund cleanup 

program? 

States implement many different types of cleanup programs under both State and 

federal statutes, including CERCLA, RCRA, Brownfields, State voluntary programs, and 

State regulatory programs. Many of these programs, such as RCRA Corrective Action, 

have already benefited from process and procedural improvements. And because 

states oversee cleanups under so many different authorities, they have become adept at 

focusing on common cleanup tools, technologies, and goals rather than procedural 

constructs and regulatory process. 

As a result of having to adapt to inadequate funding, States have also been forced to 

develop and leverage internal resources and expertise for cleanup oversight, whereas 

EPA's Superfund program relies heavily on third-party contractors for many cleanup 

oversight functions. This allows States to conduct many oversight functions at lesser 

costs than EPA in many circumstances. 

Also as a result of these experiences, States tend to be more focused on a "culture of 

completion," where the goal is to reach a protective and sustainable endpoint for a 

cleanup as quickly and efficiently as possible (as opposed to continued study in search of 

the "perfect" solution), and to prefer remedies which are sustainable and protective for 

the long-term with a minimum (to the extent possible) of long-term resource 

requirements for continued operation and maintenance. 

States have more direct knowledge of local area issues and characteristics that are 

critical to the success and acceptance of a Superfund cleanup. State cleanup managers 

understand the local soil and geological characteristics, topography, hydrology and 

hydrogeology, weather patterns, and many other technical aspects involved in the 

cleanup process. More often than not, States cleanup programs already have 

relationships with local communities and are in a more effective position to 

communicate with them about cleanup issues and concerns. 

Page 3 
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29742.095

a. What changes would need to be made to CERCLA to effectuate such a change? 

On this particular issue, neither I nor my ASTSWMO partners believe that the CERClA 

statute or the NCP provides legal impediments to States assuming greater leadership in 

the Superfund process. On this matter, all that must change is a simple willingness on 

the part of EPA to defer more actions to States. However, since the CERCLA statute 

does not currently provide for delegation of CERClA removal and remedial 

implementation or decision-making authorities to State programs, adding these 

provisions would be helpful in facilitating more State leadership in the program. 

4. How can EPA better utilize enforcement as a tool for getting sites cleaned up? 

The most effective enforcement tool is one that is tailored to the specific project 

considering such factors as the PRPs level of willingness and ability to perform the 

cleanup, willingness and ability of State programs to assist, and the conditions of the 

specific site. Enforcement cannot be viewed as a "one-size-fits-all" approach, especially 

in the CERClA program. 

I agree with many of the recommendations that EPA has already identified for more 

effective use of enforcement tools, such as adding flexibilities and reduced oversight, 

adjustments to financial assurance requirements, and addressing liability protection 

issues for cooperating PRPs (USEPA, 2017). 

Overall, the CERClA enforcement process should be operated in a manner to provide 

incentives to cooperative PRPs by applying the full rigor of the CERCLA process to noncooperative or recalcitrant PRPs. 

5. How can EPA use incentives for PRP's to get sites cleaned up? 

The most effective "incentive" EPA can offer a willing and cooperative PRP is the ability 

to "navigate" the Superfund process as quickly and concisely as possible. The Superfund 

process itself is costly and time-consuming and any effort to modernize the program 

must recognize and address this issue. 

My agency and its fellow ASTSWMO members stand ready to assist EPA in refining and 

implementing recommendations that EPA has already identified (US EPA, 2017), such as: 

Recognizing, promoting, and facilitating third party investment in inactive and 

abandoned Superfund sites; 

Page 4 
160 


29742.096

• Recognizing that PRP-Ied cleanups are fundamentally different from cleanups led 

by EPA and tailoring oversight accordingly; 

• Reducing procedural oversight milestones for cooperative, high-performing 

PRPs; and 

• Realigning EPAs own internal resources to conduct oversight activities, like plan 

and report reviews, more quickly. 

6. Your testimony noted that industry and federal government responsible parties 

should be held to the same high standards. How is it that federal responsible parties 

are held to a different standard and are there changes that need to be made to the 

program or the statute to ensure that all parties are held to the same standards? 

CERCLA makes clear that Federal facilities are subject to the requirements of the NCP, 

but only to State laws where CERCLA action is deferred and the Federal facility in not on 

the NPL (42 USC §9620(a)(4)). As I testified on January 18, deferral of CERCLA actions to 

States is rare and an area we recommend for consideration in the modernization of the 

Superfund program. But in addition, CERCLA should be amended making clear that all 

Federal facilities, including those on the NPL, are subject to applicable and relevant 

State laws, particularly those State laws governing state-specific cleanup goals and land 

use/institutional controls, which are critical parts of many cleanups and essential to the 

State's long-term maintenance of the selected remedy. 

7. Your written testimony indicated that many States have the resources, expertise, and 

desire to pay a greater role in the Superfund process and that States should be 

encouraged to do so---can you provide examples of how we can encourage greater 

participation by the States? 

Many of the impediments to more State participation in Superfund cleanups include 

such issues as: 

• Clarification and enhancement of the State role, through delegation of various 

aspects of the program, including decision-making authorities, as discussed in my 

testimony and above responses. 

• CERCLAs remedy cost-sharing requirements, discussed in more detail below; 

• Difficulties in the ARAR process, also discussed in more detail below; 

• EPA's general tendency to perform CERCLA activities in tandem with States, 

discussed earlier, and its general reluctance to defer actions to States. 

Addressing these issues and others designed to streamline and modernize the 

Superfund program will help pave the way for more State access and involvement. 

Page 5 
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29742.097

8. Are State requirements appropriately identified and accepted as Applicable or 

Relevant and Appropriate Requirements (ARARs) during the investigation and remedy 

selection process? 

States as a whole have raised the following policy concerns regarding the identification 

and acceptance of ARARs (ASTSWMO, 2018): 

• Inconsistencies in ARAR determination from one site to another and from EPA 

Region to EPA Region; 

• EPA's application of State requirements as ARARs that is inconsistent with how 

States apply their cleanup requirements and standards; 

• EPA's determination that a State requirement is procedural rather than 

substantive when the State believes it is an ARAR critical to implementation of 

the chosen remedy; 

• Reluctance of other federal entities (e.g., DOD, DOE, DOl, NASA, BLM, etc.) to 

recognize State environmental laws and regulations as ARARs; 

• Lack of written documentation on an ARAR determination where EPA finds that 

a State cleanup requirement was not an ARAR; 

• EPA delays when determining whether a State requirement is an ARAR, and as a 

result, leaving the State inadequate time to challenge the finding; and 

• EPA and other federal entities reluctance to recognize State land-use control and 

environmental covenant laws and regulations as "environmental laws", and thus 

as ARARs. 

a. Are State cleanup program personnel appropriately consulted before ARARs are 

waived by EPA or other federal agencies implementing CERCLA? 

This is an area States have identified as needing improvement, although it should be 

noted that EPA has taken certain steps to improve this process. In October 2015 States 

and EPA participated in an ARARs LEAN event to help explore ways to improve the 

overall ARARs process. Drawing on these discussions, EPA's Office of land and 

Emergency Management (OLEM) issued Directive 9200.2-187, Best Practice Process for 

Identifying and Determining State Applicable or Relevant and Appropriate Requirements 

Status Pilot (USEPA, 2017). 

I refer the Committee to recommendations made by ASTSWMO to EPA regarding the 

overall ARARs process, such as providing better training and guidance to Regions on the 

ARAR identification process and consideration of State requirements to ensure the 

concepts identified in OLEM Directive 9200.2-187 are consistently applied (ASTSWMO, 

2018): 

Page 6 
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29742.098

9. What other steps could EPA take to enable the Superfund cleanup program to 

complete cleanups faster, more effectively, and more efficiently? 

EPA should review and revise the NCP to reflect the many important lessons-learned 

from the years of experience by States and EPA under CERCLA and other cleanup 

programs, including RCRA, Brownfields, and State cleanup programs. A few examples of 

changes to the NCP that EPA should consider include: 

• Reduce the reliance on pre-approved written plans for assessment and 

investigation activities on PRP-Ied cleanups. CERCLA sites tend to stay in this 

stage of the process for many years before the first actual cleanup activities are 

undertaken. We've observed that much of that time is spent negotiating plans 

for field activities, and many times the negotiations take longer than the field 

activities themselves. Also, as we've seen in other programs, most notably 

RCRA, these back-and-forth exchanges, and multiple iterations of Remedial 

Investigation/Feasibility Study (RI/FS) plans provide opportunities for recalcitrant 

PRPs to delay work; 

• Reduce the requirements for, or even eliminate the Feasibility Study (FS) for 

PRP-Iead cleanups. The FS is most certainly needed for Fund-led cleanups to 

ensure that public money is being spent in the most efficient way while providing 

for a protective cleanup, and to support future cost-recovery actions against 

recalcitrant PRPs. But where public monies are not involved in the cleanup 

process, EPA can and should reduce or eliminate these requirements and 

provide cooperative PRPs with more flexibility and discretion, with appropriate 

oversight, to develop remedies that are both protective and affordable; 

• Address ARARs more effectively and earlier in the Superfund process; and 

• Increase the use of interim removal actions and other interim remedy 

components throughout the assessment, investigation, and remedy 

development process to speed up actual cleanup. 

10. What other steps could Congress take to enable the Superfund cleanup program to 

complete cleanups faster, more effectively, and more efficiently? 

While not necessarily related to the speed and efficiency of ongoing NPL cleanups, 

States have concerns about the current requirements for State assurance, specifically 

the requirements for States to assure 10% of the cleanup cost and 100% of the future 

maintenance costs for cleanup remedies (42 USC §9604(c)(3)). Many States simply do 

not have this funding available and are prevented from entering into Superfund State 

Contracts or from concurring with NPL listings that would obligate them to these costs. 

Consideration should be given to providing more flexibility to EPA to credit States for 

Page 7 
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29742.099

"in-kind" contributions to cleanups, such as human resources, technical equipment, and 

income which may be generated from the property, such as the recycling of valuable 

materials from the wastes and other materials removed from the property as part of the 

cleanup. 

References 

ASTSWMO. (2011). Superfund Site Assessment Program: Benefits Beyond NPL Listing. Washington, D.C.: 

ASTSWMO. 

ASTSWMO. (2011, October 15). The Hazardous Waste and Solid Waste Subcommittees provide input on 

the RCRA Messaging initiative. Retrieved from ASTSWMO.org: http://astswmo.org/thehazardous-waste-and-solid-waste-subcommittees-provide-input-on-the-rcra-messaginginitiative/ 

ASTSWMO. (2017). "On Time and On Budget" Superfund Site Assessment Program Process Analysis: 

States' Perspectives. Washington, D.C.: ASTSWMO. 

ASTSWMO. (2018). State Concerns with the Process of Identifying Comprehensive Environmental 

Response, Compensation and Liability Act {CERCLA) Applicable, or Relevant and Appropriate 

Requirements. Washington D.C.: ASTSWMO. Retrieved from http:/ /astswmo.org/stateconcerns-with-the-process-of-identifying-comprehensive-environmental-responsecom pe nsatio n-a nd-lia b i I ity-a ct -ce rcla-a p pI ica ble-or -relevant -and -appropriate-requirements/ 

Cobb, S. A. (2018, January 18). Testimony of Stephen A. Cobb before the Committee on Energy and 

Commerce, U.S. House of Representatives. 

Steers, J. (2017, August 1). Testimony before the U.S. Senate Committee on Environment and Public 

Works Subcommittee on Superfund, Waste Management and Regulatory Oversight. 

USEPA. (2017). Best Practice Process for Identifying and Determining State Applicable or Relevant and 

Appropriate Requirements totus Pilot. Office of Land and Emergency Management. Washington 

D.C.: USEPA. 

USEPA. (2017). SUPERFUND TASK FORCE RECOMMENDATIONS. Washington, D.C.: USEPA. 

USEPA. (n.d.). State Authorization under the Resource Conservation ond Recovery Act {RCRA). Retrieved 

from EPA.gov: https:/ /www.epa.gov/rcra/state-authorization-under-resource-conservation-andrecovery-act-rcra 

Page 8 
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29742.100

GREG WALDEN, OREGON 

CHAIRMAN 

Dr. Winston J, Porter 

fRANK PALLONE, JR., NEW JERSEY 

RANKING MEMBER 

ONE HUNDRED FIFTEENTH CONGRESS 

<!Congress ot tbe Wniteb $tates 

j'!)ottse of ~epresenta:tibes 

COMMITIEE ON ENERGY AND COMMERCE 

2125 RAYBURN HousE OFFICE Bu11 DING 

WASHINGTON, DC 20515-6115 

\202) 225-?977 

1202) ?2b -3641 

February 15,2018 

Environmental and Energy Consultant 

3 Sweet William Retreat 

Savannah, GA 31411 

Dear Dr. Porter: 

Thank you for appearing before the Subcommittee on Environment on January 18, 2018, to 

testify at the hearing entitled "Modernizing the Superfund Cleanup Program." 

Pursuant to the Rules of the Committee on Energy and Commerce, the hearing record remains 

open for ten business days to permit Members to submit additional questions for the record, which are 

attached. The format of your responses to these questions should be as follows: (I) the name of the 

Member whose question you are addressing, (2) the complete text of the question you are addressing in 

bold, and (3) your answer to that question in plain text. 

To facilitate the printing of the hearing record, please respond to these questions with a 

transmittal letter by the close of business on Friday, March 2, 2018. Your responses should be mailed to 

Kelly Collins, Legislative Clerk, Committee on Energy and Commerce, 2125 Rayburn House Office 

Building, Washington, DC 20515 and e-mailed in Word format to Kel!y.Collins@mail.house.gov. 

Thank you again for your time and effort preparing and delivering testimony before the 

Subcommittee. 

John Shimkus 

Chairman 

Subcommittee on Environment 

cc: The Honorable Paul Tonka, Ranking Member, Subcommittee on Environment 

Attachment 
165 


29742.101

J. Winston Porter's Answers to Energy and Commerce Committee Questions, 2/22/18 

1. We can use the model of the emergency removal program to improve the remedial program 

by increasing the allowable time and costs of the removal program activities so that more 

remedial-type cleanups can be dealt with by using the much less-expensive and more flexible 

removal program. For example, if a$ 5 million remedial project could be handled under the 

removal concept it would not have to undergo the mult-year remedial investigation/feasibility 

study process. 

2 and 2a. We can encourage PRPs to be more active and effective in the cleanup process if we 

allow these parties to propose more site remedies and then undertake such remedies 

themselves. 

3. Setting formal deadlines for key project elements would greatly speed the pace of site 

cleanups by providing clear time expectations for such site cleanups. Currently, many site 

cleanups can take decades for completion while communities have little information on 

schedules for site cleanups. 

4. No, the current decision-making structure of the clean-up program is not appropriate. In the 

early days, the Superfund EPA assistant administrator or the relevant EPA regional 

administrators made the key site decisions, such as site remedy selections. Over the years the 

decision-making structure has moved to much more junior managers, leading to slower 

development of key project decisions and thus much slower site cleanups. I recommend that 

the decision process return to the initial, more senior managers. 

5. I believe the current National Contingency Plan is generally adequate and need not be 

changed unless key modifications are made to the Superfund statute. 

J. Winston Porter 
166 


29742.102

GREG WALDEN, OREGON 

CHAIRMAN 

Mr. James McKenna 

ONE HUNDRED FIFTEENTH CONGRESS 

FRANK PALLONE, JR., NEW JERSEY 

RANKING MEMBER 

(ltongn55 of tbt Wnittb $tatt5 

7!)oune of l\cpttncntatiben 

COMMITTEE ON ENERGY AND COMMERCE 

2125 RAYBUHN HousE OFFiCE BuiLDING 

WASHINGTON, DC 20515-6115 tznzJns"ts27 

[202)22:5-3641 

February 15,2018 

Portland Harbor Policy Analyst 

Natural Resources Office 

State Capitol Building 

900 Court Street, N.E.; Suite 160 

Salem, OR 9731 0 

Dear Mr. McKenna: 

Thank you for appearing before the Subcommittee on Environment on January 18, 2018, to 

testify at the hearing entitled "Modernizing the Superfund Cleanup Program." 

Pursuant to the Rules of the Committee on Energy and Commerce, the hearing record remains 

open for ten business days to permit Members to submit additional questions for the record, which are 

attached. The format of your responses to these questions should be as follows: (1) the name of the 

Member whose question you are addressing, (2) the complete text of the question you are addressing in 

bold, and (3) your answer to that question in plain text. 

To facilitate the printing of the hearing record, please respond to these questions with a 

transmittal letter by the close of business on Friday, March 2, 2018. Your responses should be mailed to 

Kelly Collins, Legislative Clerk, Committee on Energy and Commerce, 2125 Rayburn House Office 

Building, Washington, DC 20515 and e-mailed in Word format to Kelly.Collins@mail.house.gov. 

Thank you again for your time and effort preparing and delivering testimony before the 

Subcommittee. 

Chairman 

Subcommittee on Environment 

cc: The Honorable Paul Tonka, Ranking Member, Subcommittee on Environment 

Attachment 
167 


29742.103

KATE BROWN 

GOVERNOR 

March 9, 2018 

Kelly Collins, Legislative Clerk 

Committee on Energy and Commerce 

2125 Rayburn House Office Building 

Washington, DC 20515 

Dear Ms. Collins, 

The State of Oregon thanks Representative John Shimkus, Chairman of the Subcommittee on 

Environment, for the opportunity to testify before the subcommittee regarding "Modernizing the 

Superfund Cleanup Program" and to provide responses to the nine follow-up questions presented in the 

Chairman's letter to Mr. James McKenna, dated February 15,2018. 

The State's responses to the nine questions are attached for subcommittee consideration and to be added 

to the record. 

Thank you for your consideration of these recommendations. 

Sincerely, 

Jim McKenna 

Office of Governor Kate Brown 

Portland Harbor Policy Analyst 

JM:ec 

Attachment 1: State of Oregon Responses to Nine Questions 

254 STATE CAPITOl., SALEM OR 9730 1·4047 (503) 378·31 I I FAX (503) 378-6827 

WWW.OREGON.GOV 
168 


29742.104

1. How can States help reduce the number of sites on the National Priorities List? In 

general, the State of Oregon recommends three approaches to reducing the number of 

NPL sites: a) prevent releases of hazardous substances; b) restore a sustainable source of 

federal funding for orphaned sites; and c) prioritize early de listing of sites that are in the 

long-term monitoring/institutional controls phase. 

Support State Prevention Programs. Reducing or eliminating the use of hazardous 

substances, along with promoting best-management practices for the storage, transport, 

handling and use of these substances, is the best way to reduce the number of newly 

contaminated sites and minimize the need for new sites to be added to the NPL. 

Compliance with state and federal regulatory requirements will greatly reduce the 

potential for new releases of hazardous substances. Many states operate with inadequate 

funding to perform activities involving technical assistance, permitting, compliance, 

inspection and enforcement related to hazardous substances. Underfunded programs are 

less likely to prevent releases that might create a new NPL site in the future. 

Restore Superfund Tax. The Superfund pollution tax on particular industries expired 

over two decades ago. This fund provided critical resources to EPA and the states to 

timely implement removal and remedial action at sites involving recalcitrant or 

financially incapable responsible parties. Most facilities that states refer to EPA tor 

potential listing on the NPL involve recalcitrant responsible parties or unknown or unable 

responsible parties. 

Reinstatement of the Superfund tax (or some other form of revenue for the Fund) would 

provide a mechanism for federal financial assistance to states to take response actions at 

facilities with unknown or unwilling responsible parties. EPA has employed a similar 

approach for corrective action of leaking underground storage tanks. In Oregon this has 

facilitated cleanup of over 9000 tanks systems to federal standards in the past 30 years. 

Similarly, EPA's Brownfield Program provides funding assistance to the state and 

communities to address non-NPL caliber sites. Having a sustained federal funding 

mechanism available to the states to address NPL-caliber sites would help keep them off 

the NPL, and likely result in timelier cleanup of these sites. In the absence of adequate 

federal funding, Oregon's limited funds for orphan sites will continue to be inadequate to 

timely address the orphaned sites, and hence DEQ will continue to refer many of them to 

EPA. 

Dclist NPL Sites Earlier. Most NPL sites are "closed" (i.e., active cleanup has been 

completed). However, most of these sites require some form of long-term engineering 

and institutional controls. As such, they may take decades, if ever, to meet NPL de listing 

requirements. This results in perpetually-listed NPL sites. These sites often become 

underutilized brownfields due to the liability risk posed to prospective purchasers (i.e., 
169 


29742.105

the site is still on the NPL list). EPA should make it a priority to de-list these sites (e.g., 

defer them to states to oversee the long-term monitoring and institutional controls), and 

provide the necessary resources to timely and aggressively negotiate prospective 

purchaser agreements that do not comprise protection of human health and the 

environment, but which promotes economic development and prudent land use. 

2. How can States assume more of a leadership role in addressing NPL sites? 

Many states like Oregon have promulgated cleanup laws modelled after CERCLA. 

These states have developed robust cleanup programs with highly experienced staff. 

State cleanup programs are often integrated throughout the state's regions and have a 

detailed understanding of the technical, economic, community and political issues within 

these regions. For example, DEQ's cleanup program employs over 50 technical staff in 

in three separate regions, and with offices throughout the State. The staff have degrees in 

engineering, toxicology, chemistry, geology, biology, environmental science and more. 

Approximately 60% of these staff have more than 20 years of experience working in the 

environmental field. Since DEQ's cleanup program was established in 1987, more than 

2000 sites have been cleaned up and closed. Many of these sites would have qualified for 

listing on the NPL. 

Many states like Oregon have experience coordinating CERCLA cleanups with EPA. 

The Oregon DEQ is or has been the support agency on 17 NPL sites in Oregon and is the 

lead agency on two NPL sites: the McCormick & Baxter Superfund Site located in 

Portland Harbor and the UPRR Tie Treating Plan located in The Dalles. EPA has also 

deferred live NPL-caliber sites to DEQ for management under the state's cleanup 

program. EPA also denominated a NPL site because DEQ had successfully led a multiparty area-wide groundwater cleanup that restored the City of Portland's backup regional 

water supply well field. 

Allowing states with established cleanup programs and demonstrated success to manage 

and oversee a greater number ofNPL sites (actual or proposed) could free up EPA's 

limited resources for those NPL sites that are most suited for federal oversite and 

management. 

3. Your written testimony noted that sites with low-level risk or sites that are in the 

long-term Operations and Maintenance Phase could be transferred to State 

environmental agencies that are willing and able to oversee these sites. Why are 

States positioned to take over site in O&M. 

As described under question #2, many states have established cleanup programs and 

experienced staff. Also, many states have acceptable risk range standards that either 

mirror or are more stringent than those under CERCLA. In addition, the states are 
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typically better positioned and have the established processes in place to manage sites 

subject to land or water use restrictions. The states have close relationships and 

processes in place with local jurisdictions and municipalities to facilitate safe and timely 

reuse of these facilities. The states, not EPA, have the authorities to restrict land and 

water use, and EPA relies on states to file and track land and water use restrictions in the 

form of an easements and equitable servitudes. 

Superfund modernization could include reevaluating de listing criteria. This could include 

deli sting when a site meets the upper acceptable risk range of lx 1 o-4 excess cancer risk 

with the state taking on risk management responsibilities under state authorities. 

Consideration should be given to de list sites following construction completion and an 

operational and functional determination subject to the state having an enforceable 

agreement with the responsible party that includes financial assurance. A memorandum 

of understanding between EPA and the state that articulates clear roles and 

responsibilities for the respective entities would provide the pubic a formal mechanism 

by which to determine if the state is delivering effective project oversight. 

Delisting and transferring low-risk NPL sites to willing and able state cleanup programs 

would allow the residual risk of these sites to be addressed using the full range of tools 

that have been developed and refined over the past several decades by state agencies. 

4. How can EPA better utilize enforcement as a tool for getting sites cleaned up? 

Dispute resolution. Technical disputes under EPA consent orders are typically resolved 

by the manager of the EPA staff who made the decision under dispute. Opportunities for 

meaningful dispute resolution can be an important incentive for settling parties, but lack 

of independent review diminishes the value of this right. Nonetheless, performing parties 

may feel obligated to pursue dispute resolution for a number of reasons, including 

administrative exhaustion and cost recovery/contribution. EPA could standardize 

independent technical review under consent orders simply by revising its model orders. 

Doing so would not require legislation or rulemaking. 

"When scientific and technical information is used as part of the basis for a 

public-policy decision, peer review can substantially enhance not only the quality 

but also the credibility of the scientific or technical basis for the decision. Afterthe-fact criticisms of the science are more difficult to sustain if it can be shown to 

have been properly and independently peer reviewed." (._)trengthening Science at 

the US. Environmental Protection Agency: Research-Management and PeerReview Practices, National Academy of Sciences [2000]). 
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5. How can EPA use incentives for PRPs to get sites cleaned up? 

EPA should pursue more early settlements with de minimis or de micromis PRPs. 

Settlement funds could be made available to PRPs entering an order to implement the 

remedial action (i.e., Performing Parties), in cases where the de minimis and de macromis 

PRPs lack sufficient resources or financial assurance to complete the cleanup. 

6. Can you explain the benefit of EPA allowing parties to engage in early or interim 

actions? 

Implementing interim actions provides several benefits. Interim actions provide early 

control of on-going releases of contaminants from highly concentrated source zones. 

Removal of those hot spots often increases the understanding of site conditions and the 

contaminant fate and transport processes and complexities. Applying treatment 

technologies in a localized area can facilitate the seeping, development and design of a 

final remedial action alternative based on the performance of the technology during an 

interim action. Implementing these interim actions concurrent with the RI/FS should not 

delay final remedy selection and implementation. A responsible party will be more 

willing to implement a costly cleanup using technology that has demonstrated 

effectiveness in a pilot scale application at their facility. 

7. What is adaptive management and do you think it would make Superfund cleanups 

faster and more efficient? 

Adaptive management is a structured, iterative process of robust decision making in the 

face of uncertainty with an aim of reducing uncertainty over time through performance 

monitoring. 

The concept has been applied in water quality monitoring for many years, but has been 

used rarely on federal CERCLA or RCRA sites. As applied to an NPL site, the concept 

would allow greater flexibility on the scope and phasing of remedial action elements and 

decision-making process during remedial design and remedial action to achieve the 

remedial action objectives set out in a Record of Decision. The level of uncertainty on 

remedy performance can be evaluated as remedies arc implemented to provide greater 

certainty and clarity for future decision-making. After remedial actions are implemented, 

adjustments to the remedy can be made based on performance monitoring during remedy 

operations and maintenance. 

The State of Oregon has some experience applying adaptive management for various 

situations. Groundwater cleanups often reach a point of diminishing returns and not 

predicted to meet cleanup standards in a reasonable time. Because these conditions can be 

anticipated, the Record of Decision (ROD) issued by DEQ include contingencies that 
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allow transitioning from an active groundwater pump and treat to in-situ treatment. In 

one case, passive control of the groundwater contamination required under the ROD was 

achieved using poplar trees that also provided other environmental benefits. The 

inclusion of contingency options in RODs to avoid rework saves time and money and 

facilitates getting the site cleaned up more efficiently. 

8. Why is it important that EPA incorporate flexibility in cleanup design and 

implementation? 

NPL sites are notorious for the slow pass in reaching the Record of Decision. Time is 

needed to characterize the site, conduct human health and ecological risk assessments and 

prepare the feasibility study. Interpreting site data often results in differences of opinion 

between EPA, PRPs, Tribes, stakeholders and the public. This has the tendency to lead 

to more data collection and additional cycles of interpretation and debate before EPA is 

comfortable enough with the uncertainties that a ROD can be issued. Yet, a vast amount 

of data is gathered during remedial design, particularly at complex sites. Providing more 

flexibility during remedial design may accelerate the overall schedule, reduce the cost of 

unnecessary data collection, result in a more site-specific remedy and garner a more 

collaborative working relationship between EPA and the PRPs. 

A more constructive approach using interim actions and adaptive management strategies 

to facilitate measured and constructive progress in achieving remedial action objectives 

could avoid long delays in negotiation due to remedial action implementation 

uncertainties. 

9. Your testimony stated that "EPA should develop tools that give PRPs enough 

certainty so they can settle-out in ways that will allow cleanup to move forward, 

while maintaining the government's need for prudent reopeners." Can you explain 

what you mean by that? 

The data and information upon which EPA establishes a ROD for a Superfund Site 

should also be adequate for the PRPs to resolve the allocation of cleanup costs. This will 

allow de minimis, de micromis, and other PRPs to settle their respective liabilities soon 

after issuance of the ROD. The remaining PRPs will comprise the Performing Parties 

(i.e., the PRPs committing to conduct the Remedial Design/Remedial Action). 

It is recognized that RODs are typically based on 20-30% design (e.g., a conceptual 

design of the final cleanup). Additional data and information is collected during the 

Remedial Design phase of the project (post-ROD), to refine the delineation of 

contaminants and support the final remedial design of cleanup. EPA should ensure the 

ROD is clear enough to promote timely settlement for non-performing PRPs, yet flexible 

enough so that the Performing Parties can incorporate innovative approaches and 
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technologies into the final cleanup design, including serious consideration of areaspecific conditions and future land use(s). Flexibility in ROD implementation provides 

the performing parties an avenue to develop cost-effective, efficient, timely, and 

protective cleanup actions, without obviating EPA's rights for prudent reopeners 

necessary to protect human health and the environment.