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42–282 PDF 2009

S. HRG. 109–1042

OVERSIGHT OF THE SUPERFUND PROGRAM

HEARING

BEFORE THE

SUBCOMMITTEE ON SUPERFUND AND WASTE

MANAGEMENT

OF THE

COMMITTEE ON

ENVIRONMENT AND PUBLIC WORKS

UNITED STATES SENATE

ONE HUNDRED NINTH CONGRESS

SECOND SESSION

JUNE 15, 2006

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

(

Available via the World Wide Web: http://www.access.gpo.gov/congress.senate
(II)

COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS

ONE HUNDRED NINTH CONGRESS

SECOND SESSION

JAMES M. INHOFE, Oklahoma, Chairman

JOHN W. WARNER, Virginia

CHRISTOPHER S. BOND, Missouri

GEORGE V. VOINOVICH, Ohio

LINCOLN CHAFEE, Rhode Island

LISA MURKOWSKI, Alaska

JOHN THUNE, South Dakota

JIM DEMINT, South Carolina

JOHNNY ISAKSON, Georgia

DAVID VITTER, Louisiana

JAMES M. JEFFORDS, Vermont

MAX BAUCUS, Montana

JOSEPH I. LIEBERMAN, Connecticut

BARBARA BOXER, California

THOMAS R. CARPER, Delaware

HILLARY RODHAM CLINTON, New York

FRANK R. LAUTENBERG, New Jersey

BARACK OBAMA, Illinois

ANDREW WHEELER, Majority Staff Director

KEN CONNOLLY, Minority Staff Director

SUBCOMMITTEE ON SUPERFUND AND WASTE MANAGEMENT

JOHN THUNE, South Dakota, Chairman

JOHN W. WARNER, Virginia

CHRISTOPHER S. BOND, Missouri

JOHNNY ISAKSON, Georgia

BARBARA BOXER, California

MAX BAUCUS, Montana

FRANK R. LAUTENBERG, New Jersey
(III)

CONTENTS

Page

JUNE 15, 2006

OPENING STATEMENTS

Baucus, Hon. Max, U.S. Senator from the State of Montana .............................. 17

Boxer, Hon. Barbara, U.S. Senator from the State of California ........................ 6

Inhofe, Hon. James M., U.S. Senator from the State of Oklahoma .................... 1

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

statement .............................................................................................................. 49

Lautenberg, Hon. Frank R., U.S. Senator from the State of New Jersey ........... 10

Lieberman, Hon. Joseph I., U.S. Senator from the State of Connecticut ........... 50

Obama, Hon. Barack, U.S. Senator from the State of Illinois ............................. 12

Thune, Hon. John, U.S. Senator from the State of South Dakota ...................... 3

WITNESSES

Bodine, Susan Parker, Assistant Administrator, Office of Solid Waste and

Emergency Response, Environmental Protection Agency ................................. 20

Prepared statement .......................................................................................... 50

Cantwell, Hon. Maria, U.S. Senator from the State of Washington ................... 16

Durbin, Hon. Richard, U.S. Senator from the State of Illinois ............................ 14

Porter, Winston J., president, Waste Policy Center ............................................. 36

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

Probst, Katherine N., senior fellow and director, Resources for the Future ...... 34

Prepared statement .......................................................................................... 61

Responses to additional questions from:

Senator Boxer ............................................................................................ 68

Senator Jeffords ......................................................................................... 68

Spiegel, Robert, executive director, Edison Wetlands Association ...................... 43

Prepared statement .......................................................................................... 108

Steinberg, Michael W., Superfund Settlements Project ....................................... 41

Prepared statement .......................................................................................... 102

Trasande, Leonardo, M.D., MPP, assistant director, Center for Children’s

Health and the Environment, Department of Community and Preventive

Medicine, Mount Sinai School of Medicine ........................................................ 40

Prepared statement .......................................................................................... 74

Responses to additional questions from:

Senator Boxer ............................................................................................ 101

Senator Obama .......................................................................................... 101

ADDITIONAL MATERIAL

Articles:

Children’s Health .............................................................................................. 80–94

American Journal of Industrial Medicine ..................................................... 95–100

Charts:

Cost Frequency Distribution for Construction Complete Sites 1981–2005 . 59

More than $24 Billion Total in PRP Commitments for Cleanup and

Cost Recovery Since 1981 ............................................................................. 57

Operable Units for Final and Deleted NPL Sites .......................................... 60

States with the Largest Number of Superfund Sites and the Largest

Number of Superfund Sites Where Human Exposure is not Under

Control ........................................................................................................... 129
Page

IV

—Continued

Superfund Appropriation Versus Trust Fund Balance (beginning of the

year) ............................................................................................................... 56

Superfund Site Assessment Workflow—FY 2004 .......................................... 58

Superfund Sites with Uncontrolled Human Exposures ............................. 130–133

Statement, John B. Stephenson, Director, U.S. Government Accountability

Office ..................................................................................................................... 120
(1)

OVERSIGHT OF THE SUPERFUND PROGRAM

THURSDAY, JUNE 15, 2006

U.S. SENATE, COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS, SUBCOMMITTEE ON SUPERFUND AND WASTE MANAGEMENT, Washington, DC.

The subcommittee met, pursuant to notice, at 9:30 a.m. in room

628, Dirksen Senate Office Building, Hon. John Thune (chairman

of the subcommittee) presiding.

Present: Senators Thune, Inhofe, Jeffords, Baucus, Boxer, Lautenberg, and Obama.

Also present: Senators Cantwell and Durbin.

Senator THUNE. Today’s hearing will come to order.

I would like to welcome everyone to our oversight hearing regarding the Superfund program, the program that I gained a better

understanding of since joining this committee. This is the first

hearing on this Superfund program in the past 4 years. So as we

begin our hearing today, I would like to remind my colleagues and

those who will be testifying before the committee today to be diligent in limiting your remarks to 5 minutes, so that we can ensure

that we hear from all interested parties.

There also will be a 5-minute round of questioning following each

panel. Any additional questions can be submitted for the record.

With that, before I make my opening statement, the Chairman

is here and has to get to another meeting. So I am going to yield

to him and allow him to make his opening statement.

Chairman Inhofe.

OPENING STATEMENT OF HON. JAMES M. INHOFE,

U.S. SENATOR FROM THE STATE OF OKLAHOMA

Senator INHOFE. Thank you, Mr. Chairman. I have to manage

the DOD Authorization bill on the floor here in just a few minutes.

So I will make an opening statement.

However, I want to start by thanking the subcommittee Chairman, Senator Thune, for holding this hearing. Superfund was

passed in 1980 and was at the time a step forward in dealing with

environmental issues plaguing our country. We have learned a

great deal since this legislation was passed and hope this hearing

today will allow us to expose some strengths and weaknesses in important yet complex issues.

As most on this committee know by now, the No. 1 Superfund

site is in my State of Oklahoma, Tar Creek. When I became Chairman, we started looking at this very closely. Much of the progress

that we have made was due to getting the Federal Agencies to-
2

gether. I can remember when, Senator Boxer, it might surprise you

to know that all these Agencies had never even talked to each

other at the time, I am talking about DOE, DOJ, EPA, and all of

that.

Well, we got them together, and as a result of that, things did

work out. So things can happen. My friends across the aisle will

argue the only way to ensure long-term cleanup solution would be

to reinstate the Superfund tax, so that the polluter pays for the

cost. I, like the Administration, support the polluter pay standard

under the current Superfund law. When the polluter can be identified that can pay, then they are held liable for the damages. This

has meant that about 70 percent of Superfund sites are cleaned up

by the polluters without the involvement of Government revenues.

Other sites that are initially cleaned up by EPA are paid for from

costs later recovered from the parties that contributed to the cause

of pollution. At a marginal number of these sites, responsible parties who contributed to the contamination have gone out of business or do not have assets to contribute to the cleanup. The Government prioritizes and funds the cleanup at such sites out of general revenue funds from all taxpayers and Superfund trust fund

balances to assure the protection of public health.

Some will argue that because of no tax, sites are unfunded and

therefore those communities are at risk. The truth behind this

statement is that local communities are not at risk. Sites are funded based on risks they pose, meaning that most unstable sites receive priority designation on funding. This is how EPA has always

determined funding, regardless of the Administration. It was true

in the Clinton administration and in previous administrations.

EPA focuses dollars where they are needed the most. The Administration has displayed a strong financial commitment to Superfund

and I support the current Superfund budget request.

I believe the reinstatement of any type of a Superfund tax would

create an inequitable burden on those companies that are within

the law. Various funding methods that are now working to impose

such a tax on business to raise money to put into the trust fund

would serve as a general inhibitor on business development

throughout our country. This tax would fall on businesses already

paying for their own cleanups, or that have never created any kind

of a Superfund site, and would put a burden on those companies

to pay for cleanups on sites.

So critics would say that those already doing their part pay twice

and have the very small number of those who did contribute to the

problem transfer the burden to everyone else. I think this is a subject we have gone all around and around and around on. There is

a difference of opinion, certainly, that is going to come out during

the course of this hearing between the left and the right side of

this, Mr. Chairman. I would just say that I feel very strongly that

we don’t need to unnecessarily punish someone, someone who is a

citizen, who has not been responsible for any kind of a Superfund

problem and consequently, I believe this is a very significant, important hearing to have, Senator Thune. I appreciate your holding

this hearing.

I do regret that I have to go to the floor to handle the DOD bill

for about 45 minutes. If you are still in after that, I will come back.
3

Thank you for allowing me to go first, and thank you, Senator

Boxer.

[The prepared statement of Senator Inhofe follows:]

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

STATE OF OKLAHOMA

I want to start off by thanking the subcommittee Chairman John Thune for holding this hearing. Superfund was passed in 1980 and was at the time a step forward

in dealing with environmental issues plaguing our country. We have learned a great

deal since this legislation was passed and hope this hearing today will allow us to

expose some strengths and weaknesses in this important yet complex issues.

As most on this committee know by now, the No. 1 Superfund site in the entire

country is in my home State of Oklahoma known as Tar Creek. We have made significant progress at Tar Creek since I became Chairman. Much of that progress was

due to getting the Federal Agencies under EPW’s jurisdiction to finally work together to remove the obstructions that had stalled cleanup efforts. The lack of cooperation within the Federal family prior to my Chairmanship was simply unacceptable. In my view if the bureaucracy of these Agencies would work in a collaborate

effort then the sites could be restored at a much higher rate than is currently being

accomplished.

My friends across the aisle will argue the only way to ensure a long-term cleanup

solution would be to reinstate the Superfund tax so that the ‘‘polluter pays’’ for the

cost. I, like the Administration, support the polluter pays standard under the current Superfund law. When a polluter can be identified that can pay, they are held

liable for the damages. This has meant that about 70 percent of Superfund sites are

cleaned up by the polluters without the involvement of government revenues. Other

sites that are initially cleaned up by EPA are paid for from costs later recovered

from the parties that contributed to the cause of the pollution. At a marginal number of these sites, responsible parties who contributed to the contamination have

gone out of business or do not have assets to contribute to the cleanup. The Government prioritizes and funds the cleanup at such sites out of general revenues from

all taxpayers and Superfund Trust Fund balances to assure protection of public

health.

Some will argue that because of no tax, sites are unfunded and therefore those

communities are at risk. The truth behind this statement is that local communities

are not at risk. Sites are funded based on the risks they pose, meaning that the

most unstable sites receive a priority designation on funding. This is how EPA has

always determined funding, regardless of administrations. EPA focuses dollars

where they are needed most. The Administration has displayed a strong financial

commitment to Superfund and I support the current Superfund budget request.

I believe the reinstatement of any type of Superfund tax would create an inequitable burden on those companies that are within the law. The various funding methods are now working and to impose such a tax on businesses to raise money to put

into a trust fund would serve as a general inhibitor on business development

throughout our country. This tax would fall on businesses already paying for their

own cleanups or that has never created a Superfund site and would put a burden

on those companies to pay for cleanups on sites they had nothing to do with.

Critics would have those already doing their part pay twice and have the very

small number of those who did contribute to the problem transfer their burden to

everyone. Both Democratic and Republican controlled Congresses have rejected such

an unfair approach, now that the recovery scheme that enforces the polluter pays

principle is fully in place and working.

I believe that with renewed commitment from the Administration in cutting down

bureaucratic hurdles that are impeding cleanup and improved communication between Agencies, the Administration can make great strides in cleaning up these

sites without putting great hardships on businesses not liable for these environmental damages.

OPENING STATEMENT OF HON. JOHN THUNE, U.S. SENATOR

FROM THE STATE OF SOUTH DAKOTA

Senator THUNE. Let me just say by way of opening remarks that

unlike other States that have numerous Superfund sites, South Dakota is relatively fortunate in that it has only two sites, the GiltEdge Mine, which is a 258-acre open pit cyanide heap-leaching gold
4

mine in the Black Hills, and the other one is Ellsworth Air Force

Base, which continues to be monitored for groundwater contamination and other hazardous substances that were deposited by the

military dating back to the 1940s.

The primary purpose of the hearing today is to learn more about

EPA’s efforts to stabilize and clean up sites on the National Priority List. We will hear from a diverse number of witnesses that

will, No. 1, testify regarding potential risks Superfund sites pose to

the public; No. 2, update us on what PRPs and the EPA are doing

to address the clean up of contaminated sites; and No. 3, what improvements could be made to make the Superfund program operate

more efficiently and more effectively, both in the short term and

the long term.

It is clear to me that the EPA faces a far different universe of

cleanup demands than when the Superfund program started over

25 years ago. While some have criticized the Superfund program

because the annual number of site completions have dropped, I

would like to make the observation that EPA is doing more today

to protect human health and the environment, especially at the

large cleanup sites.

Take for instance the combined impact that the following laws

have had on our country over the past three decades: The Clean

Air Act, Clean Water Act, RCRA, Toxic Substance Control Act and

Superfund. While tremendous progress has been made to reduce

human exposure to hazardous substances, I believe there is ample

room for improvement, especially within the Superfund program.

Hopefully following today’s hearing we can come to an agreement

on a handful of improvements that might be able to be made.

Last but not least, while it is not a central part of today’s hearing, I would like to raise concerns about what I consider to be an

attempt by some activists to regulate manure under our Superfund

laws. Superfund was intended by Congress to provide for the clean

up of the worst industrial toxic sites, such as Love Canal. It was

never intended to apply to substances such as manure.

I have been approached numerous times in South Dakota by agricultural producers and organizations who are concerned about

what attorneys might succeed in classifying manure as a hazardous

substance. Manure has been safely used for centuries as a natural

fertilizer all over the world. If we allow animal manure to be considered a hazardous substance under Superfund, then virtually

every farm operation in the United States could be exposed to liabilities and penalties. The economic impact across the country

would be devastating to American agriculture and related industries. As many of you know, Superfund claims could be brought

against all sizes of operations and individuals.

The history of Superfund shows that all contributors, no matter

their size, can and will be held liable. I do not believe Congress

ever intended such an outcome for America’s farmers, and I believe

we need to address this issue in the near future.

Like other business sectors, American agriculture is appropriately regulated by a wide range of Federal and State environmental laws, including the Clean Water Act, the Clean Air Act and

nuisance laws. It has never been considered to be regulated under

Superfund and I don’t believe it should be now.
5

Currently, the agriculture industry is working with the private

sector, universities and Government Agencies to develop new and

emerging technologies for manure management, including using excess animal manure for energy generation through methane digesters. This is exciting technology, especially as our Nation explores

alternative sources of energy.

Congress should not allow the courts to legislate on this issue.

We need to act to clarify that liability and reporting requirements

under CERCLA and parallel reporting requirements under EPCRA

do not apply to livestock manure.

With that, I would yield to the Senator from California for her

opening statement.

[The prepared statement of Senator Thune follows:]

STATEMENT OF HON. JOHN THUNE, U.S. SENATOR FROM THE

STATE OF SOUTH DAKOTA

Today’s hearing will come to order. I would like to welcome everyone to our oversight hearing regarding the Superfund program a program that I have gained a better understanding of since I joined the EPW Committee. Also, today’s hearing is important because it’s been 4 years since this committee held a hearing on the Superfund program.

As we begin today’s hearing, I would like to remind my colleagues and those who

will be testifying before the committee that you need to be diligent in keeping your

remarks to Five Minutes to ensure that we can hear from all interested parties.

Also, there will be one 5-minute round of questions following each panel. Any additional questions for today’s witnesses will be submitted for the record.

With that, I will begin my opening statement and then yield to Senator Boxer,

the Ranking Member of this subcommittee for her remarks—other members of the

committee will be recognized based on the Early-Bird Rule.

Unlike other States that have numerous Superfund sites, South Dakota is relatively fortunate because it only has two such sites—Gilt Edge Mine which was a

258-acre open pit cyanide heap-leach gold mine in the Black Hills and Ellsworth Air

Force Base which continues to be monitored for groundwater contamination and

other hazardous substances that were deposited by the military dating back to the

1940s.

The primary purpose of our hearing today is to learn more about EPA’s efforts

to stabilize and clean up sites on the National Priority List. A diverse number of

witnesses will: (1) testify regarding the potential risks that Superfund sites pose to

the public; (2) update us on what PRPs and the EPA are doing to address the clean

up of contaminated sites and; (3) what improvements could be made to make the

Superfund program operate more effectively both in the short-term and the longterm.

It’s clear to me that the EPA faces a far different universe of cleanup demands

than when the Superfund program started over 25 years ago. While some have criticized the Superfund program because the annual number of site completions have

dropped, I would like to make the observation that the EPA is doing more today

to protect human health and the environment especially at large cleanup sites.

Take for instance the combined impact that the following laws have had on our

country over the past three decades: • The Clean Air Act,

• The Clean Water Act,

• The Resource Conservation Recovery Act,

• The Toxic Substance Control Act and,

• The Comprehensive Environmental Response, Compensation and Liability Act.

While tremendous progress has been made to reduce human exposure to hazardous substances, I believe there is ample room for improvement—especially within

the Superfund program. Hopefully following today’s hearing we can come to an

agreement on a handful of improvements that can be made.

Last but not least, while not a central part of today’s hearing, I also want to raise

concerns about what I consider to be a ludicrous attempt by some activists to regulate ‘‘Manure’’ under our Superfund laws.

Superfund was intended by Congress to provide for clean up of the worst industrial toxic waste sites such as Love Canal. It was never intended to apply to substances such as manure. I have been approached numerous times in South Dakota
6

by agriculture producers who are concerned that litigious attorneys might succeed

in classifying manure as a hazardous substance.

Manure has been safely used for centuries as a natural fertilizer all over the

world. If we allow animal manure to be considered a hazardous substance under

Superfund, then virtually every farm operation in the United States could be exposed to liabilities and penalties. The economic impact across the country would be

devastating to American agriculture and related industries. As many of you may

know, Superfund claims could be brought against all sizes of operations and individuals.

The history of Superfund shows that all contributors, no matter their size, can

and will be held liable. I do not believe Congress ever intended such an outcome

for America’s farmers, and I think we need to address this issue in the near future.

Like other business sectors, American agriculture is appropriately regulated by a

wide range of Federal and State environmental laws—including the Clean Water

Act, the Clean Air Act and nuisance laws. It has never been considered to be regulated under Superfund, and I do not believe it should be now.

Currently, the agriculture industry is working with the private sector, universities

and government agencies to develop new and emerging technologies for manure

management, including using excess animal manure for energy generation through

methane digesters. This is exciting technology—especially as our Nation explores alternative sources of energy.

Congress should not allow activist judges to legislate from the bench on this issue.

We need to act soon to clarify that liability and reporting requirements under

CERCLA and parallel reporting requirements under EPCRA do not apply to livestock manure.

OPENING STATEMENT OF HON. BARBARA BOXER,

U.S. SENATOR FROM THE STATE OF CALIFORNIA

Senator BOXER. Thanks, Mr. Chairman. As you noted, the last

oversight hearing was 4 years ago on this program. I happened to

be the Chair of the subcommittee then. So this is long overdue.

The Superfund program should first and foremost be about protecting the health and safety of our communities, including our

children, who are the most vulnerable to toxic waste. In my State,

we have the second highest number of Superfund sites. I have

cared a lot about this program because of that, and other States

across the country. I would ask unanimous consent to place in the

record a chart, two charts from the EPA’s own Web site, Mr. Chairman, if I might do that.

Senator THUNE. Without objection.

[The referenced material follows on page 129.]

Senator BOXER. What I wanted to point out is the top 25 States

with Superfund sites with uncontrolled exposures. Uncontrolled exposures as defined by EPA. New Jersey has 19 of these sites, Senator Lautenberg. New Jersey has 19 of the uncontrolled sites, the

highest in the Nation. Illinois has second, with 12 uncontrolled

sites. Washington State, I say to my colleague, Senator Cantwell,

and I should have Senator Durbin, 12, Washington 10, New York

8, California 7. It goes on. Many of our smaller States are on this

list.

This isn’t a question of left and right, as my good Chairman said.

This is a question of right and wrong. Because a lot of these States

are red States, a lot of these States are blue States. It is not about

this, it is about right and wrong. What are we doing to clean these

sites up?

I have to tell you that clear answers have not been forthcoming

from the EPA about the state of the Superfund program. It has

only been with extraordinary effort, using every tool at my disposal

as a Senator that I have been able to piece together information
7

about the program and the nature of the threats posed by Superfund sites that for years have been underfunded.

I held up the current Assistant Administrator’s confirmation, it

wasn’t personal. It was that I wanted information. I asked for funding shortfall information and honest answers about the risks posed

by these sites. To date, I have received partial answers.

But what I have learned has made it clear that we have to get

to the bottom of what is going on in this program. I am especially

concerned about the sites where human exposure is not under control. I read some of the States that have the greatest hazard there.

I learned there were 149 of these sites when I made my request.

Today, EPA is saying there are 139.

Sites where human exposure is not under control can have pathways of exposure that directly affects our children. Residential back

yards, parks, playgrounds or areas where children have easy access

sometimes have arsenic, lead or other contaminants, according to

EPA’s own documents. I understand each site has its own story.

Some are worse that others. Some have documented high levels of

lead in children’s blood like Omaha lead in Nebraska or Bunker

Hill in Idaho.

One thing is clear: EPA should have an open door policy when

it comes to information on the status of these sites. People have a

right to know if their children are safe and if there is a threat,

there is a fundamental right to know so those affected can act.

That is the American way. Secrecy is not the American way. EPA’s

closed door approach to Superfund is unacceptable.

We share many values in this country, and one of the most central of values is the value we place on our children. It is totally unacceptable for EPA to say that members of a community or Members of Congress cannot know what is going on at these sites in

terms of risk and funding. What EPA plans to do or not do should

not be a secret. There is no national security here. The limited

need to protect enforcement information isn’t an excuse for keeping

families in the dark.

It is stunning to see the casual way EPA treats the public’s right

to know. Many of the documents I have asked for at these sites,

especially those relating to timing of cleanup, funding shortfalls

and related risks are stamped ‘‘privileged.’’ Look at it. This is what

we get back. Privileged, across the whole page. The vast majority

of the documents EPA provided in response to my questions were

marked this way one very single page.

To shut the people out and keep them in the dark is unconscionable, and it must change. Superfund fee has long expired, polluters

have been left off the hook. The funding levels for this program in

constant dollars has dropped by more than a third. It should be no

surprise that a program that has been shortchanged like this cannot meet its obligations. I have a bill to restore the polluter fee.

That would be an important step.

I also applaud Senator Cantwell’s effort in her bill to force EPA

to put together a financial assurance program for polluting companies. It is a wonderful idea. Why should Superfund information be

kept secret? What is the motivation? One thing is clear: if the public knew just how long the EPA planned to take to clean up the

site next door, there would be an outcry. The Administration does
8

not want to shift priorities to a program like this. That is clear. So

to prevent the outcry, people are left in the dark. It needs to

change.

I plan to work with my colleagues in an effort to make sure that

EPA has transparency, respects the public right to know. I plan to

introduce a bill to ensure that the public right is protected and the

door will be open at EPA, not tightly shut as it is now. I will do

everything in my power to ensure that the state of this program

is changed for the better. I look forward to working with my chairman and the Chairman of the full committee to make sure that

this program gets back on track.

Thank you very much.

[The prepared statement of Senator Boxer follows:]

STATEMENT OF HON. BARBARA BOXER, U.S. SENATOR FROM THE

STATE OF CALIFORNIA

Mr. Chairman, I appreciate your agreement as well as that of the Chairman of

our full committee to hold this critically needed oversight hearing on the state of

the Superfund program. I conducted the last oversight hearing as Chairman of this

sub-committee more than 4 years ago and oversight of the EPA Superfund program

is long overdue.

The Superfund program should first and foremost be about protecting health and

safety of communities, including children who are the most vulnerable to exposure

to toxic waste. I have long cared a great deal about the threat posed by Superfund

sites in my State. California has the distinction of being second in the Nation in

the number of Superfund sites with 94, tied with Pennsylvania and only exceeded

by our friends in New Jersey. People who live near these sites have a right to know

exactly what is in the Superfund site next door and what measures are being taken

to protect them from the risks associated with these highly toxic sites.

I am sorry to report that clear answers have not been forthcoming from the EPA

about the state of the Superfund program. It has only been with extraordinary effort

using every tool at my disposal that I have been able to piece together information

about the program and the nature of the threats posed by Superfund sites that for

years have been under-funded. I held up the current Assistant Administrator’s confirmation to attempt to gain access to information on sites where human exposure

is not under control. I asked for funding shortfall information and honest answers

about the risks posed by these sites.

To date, I have received only partial answers to my questions from the EPA—but

what I have learned has made it clear that we must quickly get to the bottom of

what is going on in this program. I am especially concerned about the sites where

human exposure is not under control. I learned there were 149 of these sites when

I made my request. Today there are 139 according to EPA’s Web site.

Sites where human exposure is not under control can have pathways of exposure

that directly affect children. Residential backyards, parks, playgrounds or areas

where children have easy access have arsenic, or lead or other contaminants according to EPA documents. I understand that each site has its own story. Some are

surely worse than others. Some have documented high levels of lead in children’s

blood like Omaha lead in Nebraska or Bunker Hill in Idaho. One thing is clear. EPA

should have an open door policy when it comes to information on the status of these

sites. People have a right to know if their children are safe. If there is a threat,

there is a fundamental right to know so those affected can act.

EPA’s closed door approach to Superfund site information is unacceptable. We

share many values in this country. One of the most central is the value we place

on the health and safety of our children. It is totally unacceptable for EPA to say

that members of a community or Members of Congress cannot know what is going

on at these sites in terms of risk and funding. What EPA plans to do or not do for

a site should not be a secret. The limited need to protect enforcement information

is no excuse for keeping families in the dark about the future of their community.

It is really stunning to see the casual way EPA treats the public’s right to know.

Many of the documents I have asked for at these sites, especially those relating to

timing of cleanup, funding shortfalls and related risks are stamped ‘‘PRIVILEGED’’

across the whole page in bright red ink. The vast majority of the documents EPA

provided in response to my questions were marked this way on every page; they

were given to Senator Inhofe and EPA asked that our access be limited. They talked
9

about not allowing us to review these documents without supervision. This program

is set up and paid for by the people. To shut the people out and keep them in the

dark in this way is unconscionable. This is not a national security issue. It must

change. It must change quickly.

The Superfund fee has long expired and polluters have been let off the hook as

a result. The funding levels for this program in constant dollars have dropped by

more than a third. It should be no surprise that a program that has been shortchanged like this cannot meet its obligations to communities. I have a bill to restore

the polluter fee and that would be an important step. I also applaud Senator

Cantwell’s efforts in her bill to force EPA to put together a financial assurance program for polluting companies.

Why should Superfund information be kept a secret? What’s the motivation? One

thing is clear. If the public knew just how long the EPA planned to take to clean

up the site next door—there would be an outcry. The Administration does not want

to shift priorities, that is clear. So, to prevent that outcry people are left in the dark.

This needs to change. I plan to work with my colleagues in an effort to make sure

that EPA has transparency and respects the public’s right to know.

Senator THUNE. Thank you, Senator Boxer.

Let me just make a couple of comments, if I might, about the

documents. First, following DOJ guidelines, EPA only provides

privileged or confidential documents to the committees of jurisdiction. Chairman Inhofe has made these documents available to any

member of this committee to help the members and their staff with

our oversight function.

In terms of providing the documents to members off the committee, my understanding is that has never been done in the past,

and I understand as well that there have been consultations with

the late John Chafee’s former chief counsel, and that that was the

policy when he was the chairman of this committee as well.

Second, my understanding as well, there is frustration that many

of the documents have been labeled privileged or confidential, or

that they have been mislabeled. Again, I would simply say, that is

not our call to make. We have to treat the documents in accordance

with their classification. If we want to challenge the classifications,

then that is something that needs to be done with the Administration privately, not publicly. So these documents that have been

made available to Senator Boxer and the minority for the last 6

months, there has been ample time to discuss the classifications

prior to today’s hearing.

What I would add is that Chairman Inhofe has requested that

I object to any unanimous consent request to place any privileged

or confidential documents into the record of today’s hearing. So I

make that statement.

OK, what we are going to do is——

Senator BOXER. Well, Mr. Chairman, excuse me. If I might, as

the Ranking on this subcommittee, respond to you. We will talk to

our own lawyers and we will decide how we will act here. So I just

want to make that clear.

Senator THUNE. Well, that is your prerogative. All I have simply

said is——

Senator BOXER. You knew my prerogatives.

Senator THUNE. Well, if you want to take it up with the Administration or take it up with legal counsel, that is certainly within

your realm of options.

But in any case, I want to proceed with opening statements. We

have a couple of our colleagues who want to testify this morning,

but I am told that Senator Obama has an opening statement, Sen-
10

ator Lautenberg, Senator Jeffords, you all have opening statements. Senator Jeffords does not?

OK, let’s go to Senator Obama, unless you want to defer to

your——

Senator OBAMA. I will defer to my better looking colleague.

Senator THUNE. All right, Senator Lautenberg.

Senator LAUTENBERG. At least he didn’t say older.

OPENING STATEMENT OF HON. FRANK R. LAUTENBERG,

U.S. SENATOR FROM THE STATE OF NEW JERSEY

Thanks, Mr. Chairman. Your statement, and I know given in

good faith, does raise some eyebrows here. When we talk about

privileged, I think the best way to describe it would be hidden, instead of privileged. Then in a subtitle would be hidden from the

public, that is what we are talking about.

When Congress created the Superfund 25 years ago, our country

made a commitment: a commitment to clean up toxic waste sites

in our neighborhoods and communities. A commitment to the principle that those who did the damage, the polluter, should pay for

the clean up of our environment. These commitments were upheld

by every Administration from both political parties until the

present Administration. The Bush administration does not believe

that polluters should pay.

It is nothing new that some companies don’t want to clean up the

pollution they caused. What is new is that the Bush administration

is helping companies evade their responsibility. So not only do citizens have to live with the pollution, but they also have to pay to

clean it up. So the victims get taxed a second time. First, they have

to pay for it, and second, they have to breathe it and worry about

their kids playing nearby.

Superfund established fees that were paid by the oil and chemical industries. These fees were used to clean up abandoned sites

that had been polluted by companies that are no longer in business. These fees expired more than 10 years ago.

But for a few years, the lack of fee collection wasn’t a problem,

because Superfund still had a surplus of resources to clean up toxic

sites. Now it is a problem. The Superfund is broke, bankrupt. Now

it is taxpayers, not polluters, who get stuck with the bill for their

careless behavior for cleaning up those abandoned toxic sites.

While the oil companies and others rake in profits, taxpayers get

stuck with the bills. It is a bad deal for our taxpayers, a threat to

the health of the people in States like New Jersey, where we have

over 100 sites. We have about a dozen that are considered highest

priority. But over 100 sites on the National Priority List for cleanup, those sites, 14 of them, actually, where human exposure to contaminated soil, polluted groundwater or air emissions is not under

control.

It is bad enough that the Bush administration doesn’t want polluters to pay to clean up these sites. But even worse, they are trying to hide from the public the information about the threats to

their health. The Environmental Protection Agency, EPA, has refused, as we heard from Senator Boxer, to release information

about toxic sites in communities where people live. The American

people deserve the truth about threats to their health. They de-
11

serve a strong Superfund that makes polluters pay to clean up

toxic sites. I am pleased that two of our most distinguished colleagues, Senator Cantwell and Senator Durbin, will be testifying

before us today.

I would also like, particularly like to extend a welcome to Bob

Spiegel of the Edison Wetlands Association, an organization in New

Jersey. Bob has been fighting a good fight for many years, cleaning

up polluted sites in New Jersey and protecting our citizens. That

really, without any resources except that which he creates himself.

So I wish that the Bush administration shared the concern, the

commitment to environmental protection that Bob Spiegel and so

many others across the country have demonstrated. I thank Bob

Spiegel for being here today.

Mr. Chairman, thank you. I heard your opening remarks. I hope

that you will understand that when the question of privilege is exerted, that it really suggests to us that this is information that,

given to an enemy, might be dangerous for our well-being. This

isn’t dangerous. This is sleight of hand, and it is resented, and

hopefully will be understood by the public across the country.

Thanks, Mr. Chairman.

[The prepared statement of Senator Lautenberg follows:]

STATEMENT OF HON. FRANK R. LAUTENBERG, U.S. SENATOR FROM THE

STATE OF NEW JERSEY

Thank you Mr. Chairman for holding this oversight hearing on the Superfund program.

When Congress created the Superfund 25 years ago, our Nation made a commitment. A commitment to clean up toxic waste sites in our neighborhoods and communities. A commitment to the principle that polluters who damage our environment

should pay to clean it up.

Those commitments were upheld by every Administration from both political parties—until the Bush administration. The Bush administration doesn’t believe polluters should pay.

It’s nothing new that some companies don’t want to clean up the pollution they

cause. What is new is that the Bush administration is helping companies evade responsibility. Instead of making polluters pay, they want to protect polluters. So not

only do citizens have to live with the pollution, but they also have to pay to clean

it up.

The Superfund established fees that were paid by the oil and chemical industries.

These fees were used to clean up abandoned sites that had been polluted by companies no longer in business.

These fees expired more than ten years ago, but for a few years, the lack of fee

collection wasn’t a problem because the Superfund still had a surplus of resources

to clean up toxic sites. But now it is a problem. The Superfund is broke. Now it

is taxpayers—not polluters—who get stuck with the bill for cleaning up these abandoned toxic sites.

While the oil companies and other polluters rake in record profits, taxpayers get

stuck with the bill. This is a bad deal for taxpayers—and it’s a threat to the health

of people in states like New Jersey, where we have 113 sites on the National Priority List for cleanup.

There are 14 New Jersey sites where human exposure to contaminated soil, polluted groundwater, or air emissions is not under control. It’s bad enough that the

Bush administration doesn’t want polluters to pay to clean up these sites.

But even worse, they don’t even want the American people to know about plans

to clean up these sites that pose threats to their health. The Environmental Protection Agency has refused to release information about toxic sites in communities

where people live.

The American people deserve the truth about threats to their health. They deserve a strong Superfund that makes polluters pay to clean up toxic sites.

I am pleased to see that two of our most distinguished colleagues, Senators Durbin and Cantwell, will be testifying before us today. I would also particularly like

to extend a welcome to Robert Spiegel of the Edison Wetlands Association. Bob has
12

been fighting the good fight for many years, cleaning up polluted sites in New Jersey and protecting our citizens.

I wish the Bush administration shared the commitment to environmental protection that Bob and so many others across the country have demonstrated. Thank

you, Bob, for coming down for this hearing today.

Thank you again Mr. Chairman, for holding this important hearing.

Senator THUNE. Thank you, Senator Lautenberg.

Senator Obama.

OPENING STATEMENT OF HON. BARACK OBAMA,

U.S. SENATOR FROM THE STATE OF ILLINOIS

Senator OBAMA. Thank you very much, Mr. Chairman, I appreciate the time.

Let me just start, because I know my colleagues are waiting, I

am going to be brief. But I do have to echo something that has

been said about this assertion of documents that are privileged and

confidential. I recognize that these are labels that were placed on

these documents by the Administration. I hold them responsible.

I do have to note, Mr. Chairman, that if we don’t hold them accountable, I don’t know who does. If we get into a situation in

which any time there is information that an Administration, Democrat or Republican, decides they don’t want exposed publicly, all

they have to do is slap on the privileged or confidential label and

that’s the end of the story, and we are going to be completely deferential to those determinations, then the American public is not

going to be well served.

I cannot imagine a circumstance, and I will be asking the lawyers, what the circumstances might be whereby information about

polluted sites somehow can’t be made available for the public

record. Maybe there is an answer to that. I don’t know what it is.

One of the most basic roles of a congressional committee is oversight. We haven’t had an oversight hearing in the past few years.

But when properly done, oversight can help to figure out what aspects of agency work is moving properly and hopefully to provide

a prod to the Agency if it is not attending to some important issues.

Now, during the past year and a half, I have spent quite a bit

of time on children’s health issues. Because of their smaller size,

their developing organs and bones and their propensity to play in

dirt and put things in their mouths, children are more vulnerable

to environmental hazards than most adults. As a result, one of my

priorities has been ensuring that Agencies such as EPA are adequately protecting our children’s health.

Now, Senator Boxer, about this time last year, approached Senator Durbin and myself with a chart showing that Illinois had the

highest number of Superfund sites with ‘‘uncontrolled human exposure.’’ Just to give you one example of one of these sites, Mr. Chairman, one of them is in Ottawa, IL. Ottawa is a small town in central Illinois, about an hour and a half, 2 hours outside of Chicago.

There was a plant there where mostly women worked in a factory,

painting luminous clock faces. Because of the fine detail work needed, women were preferred. They were taught to roll the brush with

their tongue to make a fine point. It turns out that they were licking radium-laced paint.

Now, obviously that is tragedy enough. Most of them died in

their twenties. These women would now be grandmothers and
13

great-grandmothers. They lost their lives as a consequence of working to better the lives of their families.

The factory is closed, but the radium contamination remained.

Another generation began to have uncommon cancers. Now a new

generation of children is growing up in Ottawa, and they are being

exposed to some of these same hazards, because the Superfund site

where human exposure is uncontrolled, there is a vacant lot where

children play and there is a skateboard park that teenagers use.

There are similar tales around the country. Shortly after Senator

Boxer showed us this list of uncontrolled sites, Senator Durbin and

myself asked the EPA to elaborate on the situation at these sites.

It took 9 months to get a response from EPA. After 9 months, the

response that they sent us was still incomplete. We later learned

that they had provided Senator Boxer more information about

these Illinois sites than they had provided Senator Durbin and I.

So you might understand our sense of frustration about this. I

am sure if you had a similar situation in South Dakota, you would

be similarly frustrated. We have now received some more information from EPA, but frankly, the men, women and children who live

near these sites deserve better than a piecemeal release of information or a grudging release of information to the two Senators that

represent this area.

So I am hopeful that, I know there is going to be a break for a

vote and then we will have a chance to return to the panel, part

of what I want to hear from the EPA is what is it in the culture

at EPA that prevents us from getting timely, forthcoming information about these situations? We recognize that the EPA didn’t necessarily create these hazardous situations, but it is part of their

mandate to fix it. We have an obligation to make sure that we are

well informed about what they are doing.

Thank you, Mr. Chairman.

[The prepared statement of Senator Obama follows:]

STATEMENT OF HON. BARRACK OBAMA, U.S. SENATOR FROM THE

STATE OF ILLINOIS

Mr. Chairman, Ranking Member Boxer, thank you for holding this important

hearing today. One of the most basic roles of a congressional committee is oversight.

Unfortunately, that hasn’t happened much over the past few years. But, when properly done, oversight can foster a productive ongoing dialog between the Agency and

Members of Congress about what is working, what is not, and how Congress and

the Agency can work together to improve the operation of government.

During the past year and a half, I’ve spent quite a bit of my time on children’s

health issues. Because of their smaller size, their developing organs and bones, and

their propensity to play in the dirt and put things in their mouths, children are

more vulnerable to environmental hazards than most adults. As a result, one of my

priorities has been ensuring that agencies such as EPA are adequately protecting

our children’s health.

About this time last year, Senator Boxer approached Senator Durbin and me with

a chart showing that Illinois had the highest number of Superfund sites with I

quote ‘‘uncontrolled human exposure.’’ The EPA Web site with information on these

sites reads a little like a Stephen King novel.

For example, one of the sites is in Ottawa, IL. Ottawa is a small town in central

Illinois where hardworking Midwestern women went to work in a factory painting

luminous clock faces. Because of the fine detail work needed, women were preferred.

They were taught to roll the brush on their tongue to make a fine point. Of course,

we now know that they were licking radium-laced paint.

Most of them died in their 20’s. These women, who would now be grandmothers

and great grandmothers, gave their lives so they and their families could have a

better life. The factories closed but the contamination remained and another genera-
14

tion began to have uncommon cancers. And now a new generation of children is

growing up in Ottawa, and they’re being exposed to these same hazards. You see,

near these Superfund sites where human exposure isn’t controlled, there’s a vacant

lot where children play and there’s a skateboard park that teenagers use.

Unfortunately, there are similar tales at other sites around the country.

Shortly after Senator Boxer first showed us the list of uncontrolled sites, Senator

Durbin and I asked EPA to elaborate on the situation at these sites. It was a reasonable request, but it took 9 months for EPA to provide an incomplete response.

And incredibly, we later learned that EPA provided Senator Boxer with more information about these Illinois sites than they had provided us.

We’ve now received some more information from EPA. But frankly, the men,

women, and children who live near these sites deserve better than this piecemeal

release of information.

I hope today’s hearing will impress upon EPA that we are serious about oversight

in this committee. Again, I thank the Chairman and Ranking Member for examining this issue.

Senator THUNE. Thank you, Senator Obama.

Again, I will let EPA speak to the question of what they consider

to be privileged and confidential. My understanding is that that is

to, when they classify those things that way, it is to ensure that

ongoing enforcement actions aren’t compromised. But I would add,

you should have had, as a Member of this committee, nobody on

this committee should have been denied access to any of that information, any of that.

Senator OBAMA. Thank you.

Senator THUNE. Senator Durbin, Senator Cantwell, thank you for

your patience. Please, Senator Durbin, proceed, and then we will

move to Senator Cantwell.

STATEMENT OF HON. RICHARD DURBIN, U.S. SENATOR FROM

THE STATE OF ILLINOIS

Senator DURBIN. Thank you, Senator Thune, for having this

hearing. Thank you, Senator Boxer, for your leadership on this

issue. You have really informed me and Senator Obama about

things involving this Superfund issue which we couldn’t find, as

members of the Senate. It is an incredible situation. But I thank

you for your diligence. I am glad we are talking about this.

I testified before this subcommittee before on this issue. Since

then, there has been very little progress. I am really troubled that,

as we learn more about the health implications of exposure to hazardous chemicals, especially threats to children, as Senator Obama

has noted, our commitment to provide the funds necessary to clean

up these orphaned hazardous waste sites has declined. So as we

learn more about the threat, we put less into the effort to clean it

up. That is exactly the opposite of what I think public service requires.

Over the years some in Congress and this Administration have

resisted reauthorizing the Superfund approach which says very basically, polluters pay. Instead, the approach of the Administration

is, all taxpayers pay. If someone is guilty of pollution, everyone

should pay for it. Most of us feel that the ones who are responsible,

the industries responsible, should be paying for the cleanup.

Sadly, if we go to the all taxpayers must pay approach, we find

Superfund fighting with so many other things that need funding:

cutbacks in Amtrak and health care and education. We know at the

end of the day there will be very little, if any, money left to do anything necessary, anything that is necessary to clean up.
15

We know that these funding shortages delay cleanups and leave

communities at risk. I am troubled that cleanup is still not completed, sites listed 20 years ago. Parsons Casket Hardware site in

Belvedere, IL, 6,000 people live within 1 mile of this site. Twenty

years ago, we said it was a problem. Nothing has been done.

My recent communications with EPA have made it clear there is

another problem, and it has been highlighted this morning. The

EPA doesn’t want to talk about this. When they talk about it, they

want to stamp ‘‘privileged’’ on it and suggest that we don’t want

the public to know.

Wait a minute. If this is a danger to the public and we have an

open and transparent Government, why aren’t we telling the public

about this danger? Is this building up to another Erin Brockovich

movie? Is that what it will take to finally get the EPA to meet their

public responsibility?

Senator Obama has mentioned, last year Senator Boxer approached us with a list of 11 Superfund sites in our home State.

I am sorry that we are No. 2 on the list. I wish we weren’t even

on the list. Senator Obama and I said, ‘‘Well, let’s go to the EPA

and get the information.’’ We wrote a letter. First, tell us information about these sites. Second, analyze any threats at these sites.

Third, tell us your timetable and your plan to clean them up. It

was a pretty straightforward letter, when you get right down to it.

It took them 9 months to write a reply. Nine months. What a

gestation period for a simple letter. The EPA then refused to provide us as much information as they already had posted on their

Web site. So we wrote them back and said, Excuse me? You can’t

tell us, as U.S. Senators what is going on in our State at Superfund

sites that you are responsible for? Meanwhile, people are asking

questions, we go to their Web site, we understand there is some

threat of human exposure, Senator, what can you find out for us?

Well, it turns out the EPA would tell us little or nothing. We

wrote to them again and we received a second response. Unfortunately, it was still woefully incomplete. In fact, many of the responses from the EPA are confusing and misleading. How is it the

Interstate Pollution Control site in Rockford was not on the July

2005 list of 11 sites with uncontrolled human exposure, then was

classified as uncontrolled in their April letter to us, and then was

removed from the list 2 months later in the June response? I don’t

think the EPA is even in communication with itself, when it comes

down to some of these sites.

If you lived next to this polluted site, what would you think? If

your kids were anywhere near, if your family was near, if there

was a threat that some of this exposure might lead to cancer or

other serious illness, wouldn’t you be worried? Any responsible parent would be.

Can any of us in this committee really have confidence that the

sites in our States have been accurately classified? Can we be sure

the EPA designates a site today and then won’t change its mind

tomorrow for no obvious reason? You have to get to the bottom of

it, not just for the families that are developed here, but for the reputation of the U.S. Senate. If we cannot ask the hard question and

get honest answers from an Agency of this Government, we are

failing in our oversight responsibility. We need answers before
16

there is any further damage or exposure to the communities and

families that are affected.

Thank you for this hearing.

Senator THUNE. Senator Cantwell.

STATEMENT OF HON. MARIA CANTWELL, U.S. SENATOR FROM

THE STATE OF WASHINGTON

Senator CANTWELL. Thank you, Mr. Chairman, for holding this

crucial Superfund oversight hearing, and to the Ranking Subcommittee Member, Senator Boxer, for her leadership, and to my

other colleagues for being here today.

A few weeks ago, the Wall Street Journal reported on a growing

phenomenon across the West: that is, that towns and cities are

struggling to ensure cleanup from decades of environmental contamination on properties formerly owned by the ASARCO Company. For over a century, ASARCO mined and smeltered and refined metals at sites across the country, leaving behind a legacy of

lead, arsenic and other contamination in more than 90 sites in 22

western States. But when ASARCO, a former Fortune 500 company, filed for bankruptcy in August 2005, suddenly the American

taxpayer was stuck with a billion dollar cleanup bill for the company’s legacy of environmental pollution, which includes 19 Superfund sites nationwide.

I would like to explain briefly to the committee how this happened, because I think these are very important lessons that Congress can learn from in order to reinvigorate Superfund. It started

in 1999 when a private Mexican mining company, Grupo Mexico,

bought ASARCO. Within days of their takeover, Grupo Mexico

began a fire sale of its non-mining assets to pay for the takeover

costs. These actions liquidated many of the resources that ASARCO

could have used to clean up its toxic legacy.

Then in the summer 2002, Grupo Mexico attempted to purchase

ASARCO’s stake in Peruvian mines at a price way below their

market value. With EPA growing increasingly concerned over

ASARCO’s ability to fulfill court decrees to clean up some of the

Superfund sites, the Department of Justice lawyers blocked the

asset transfer, expressing concerns that ASARCO was selling off

assets to avoid their liability responsibilities.

Salvaging what public value they could in 2003, the Federal

Agency struck a deal with ASARCO in which they agreed to put

up $100 million in funds to pay for contamination cleanup on about

30 sites. In exchange, ASARCO received a 3-year moratorium on

Federal cleanup enforcement and was allowed to sell the Peruvian

mines to their parent company, Grupo Mexico.

However, last August, just as the 3-year moratorium was set to

expire, an asset-poor ASARCO filed for Chapter 11 reorganization,

leaving taxpayers and local communities holding the bag for an estimated $1 billion in cleanup of these contaminated sites across

western States. In my own State, ASARCO has two Superfund

sites, including a $180 million mess on the shores of Commencement Bay, adjacent to the cities of Tacoma and Ruston.

The real world effects of ASARCO’s corporate maneuvering became strikingly clear last summer when the day after ASARCO declared bankruptcy, contractors abandoned, midway through the
17

project, the leveling and cleaning up of local yards that they had

torn up to remove contaminated dirt. This picture actually shows

the sites in Tacoma where ASARCO literally walked off the job.

Walked off the job when they declared bankruptcy, and left these

sites just as they are there.

I wish I could say that ASARCO was just an exceptionally bad

actor, but there is evidence that the company’s devious practices

are more common than we realized. That is why we asked for an

investigation into this. I might note, we were successful in getting

emergency funds from EPA, taxpayer dollars, to basically finish the

cleanup in these individual yards as we continued to battle.

But that is why in 2002, when ASARCO first threatened to file

for bankruptcy, I asked the Government Accountability Office to

examine how corporate polluters like ASARCO might be avoiding

their cleanup responsibilities under existing environmental law. I

want to thank Senators Jeffords and Boxer for helping with that

important investigation.

Some of you may know that that report found that EPA faces significant challenges when seeking to hold businesses responsible for

their cleanup liabilities in bankruptcy and other financial distress.

It is because of that report that I have filed legislation that my colleagues have supported that will help us get the financial assurances that we need earlier in the process.

The report found that EPA could make greater use of available

authority and enforcement tools to pursue these hazardous waste

cleanups from bankruptcy courts and financial distress businesses.

So I urge my colleagues to not leave the American taxpayer on the

hook for cleaning up contaminated sites or leaving residential

yards unfinished but instead to do what it takes for us to provide

sound and safe cleanup on Superfund sites across the United

States.

I thank the Chairman and the Ranking Member.

Senator THUNE. Thank you, Senator Cantwell.

We have a vote on, and just a few minutes left to vote on the

supplemental Appropriation bill. So I am going to recess, then we

will come back and take it up with EPA.

[Recess.]

Senator THUNE. The hearing will resume.

I want to ask Assistant Administrator Bodine to come forward

and take the witness stand. Before we hear testimony from her, we

have been joined by our colleague from Montana, Senator Baucus,

who would like to make an opening statement. Senator.

Senator BAUCUS. It is pretty formal here, she is taking the witness stand. That is a whole new development.

[Laughter.]

OPENING STATEMENT OF HON. MAX BAUCUS, U.S. SENATOR

FROM THE STATE OF MONTANA

Senator BAUCUS. I thank the Chairman.

Mr. Chairman, as we well know, a part of EPA’s mission is to

protect the public health from environmental degradation. Perhaps

nowhere is this challenge greater than in the town of Libby, MT.

Just listen to the story of Mel and Lerah Parker. In 1993, they

bought a little piece of land along the Kootenai River from W.R.
18

Grace and Company. This land was a site of W.R. Grace’s screening

plant. But to Mel and Lerah, it was the perfect spot to start their

own business, Raintree Greenhouses. They worked hard, built their

business. By the late 1990s, they had the largest nursery in the

State of Montana.

Then in 1999, the extent of the asbestos contamination was uncovered, and the Parkers’ world literally came crashing down. EPA

had to tear down their outbuildings, their greenhouses and their

home. The EPA even had to destroy their cars and many of their

personal belongings. For several years, the Parkers rented a house.

Lerah Parker was recently diagnosed with asbestosis.

Because of the huge loss they took with their business, they will

never rebuild their greenhouses. But the Parkers are resolute.

They hope to one day rebuild a house on a little piece of property

along the Kootenai River.

This is just one story from Libby. There are hundreds of others,

many of them even more tragic. Tremolite asbestos from W.R.

Grace’s vermiculite mine has killed some 200-area residents and

sickened hundreds more. Again, killed over 200-area residents and

sickened hundreds more.

Assistant Administrator Bodine, I hope to impress upon you just

how important it is that EPA get the cleanup in Libby right. In all

my years as an elected official, this issue of doing what is right for

Libby is one of the most personally compelling things I have ever

been called upon to do. I have been to Libby 18 times since the

year 2000. Every time I go, the devastation is worse, and it is

worse. More people are sick and dying. Helping the people of Libby

is a very personal fight for me, and I want to do all I can to get

Libby residents the help they need and deserve. It is the right

thing to do for both the victims and for future generations that we

can still protect.

That is why I was completely outraged to learn just last week

that workers digging a water line discovered a patch of tremolite

asbestos near the surface 8 to 12 inches thick, 6 feet wide and 20

feet long in a site that was supposed to have been cleaned up, not

once but twice, the first time by W.R. Grace and the second time

by EPA itself. Compounding the offense is the fact that the workers

were digging a water line that was intended to serve the park that

features the asbestos victims’ memorial.

It is not right. It is totally unacceptable. Given such outrageous

failures, I ask how can the EPA ever assure folks like the Parkers

that it is safe to rebuild their homes? According to EPA’s own calculations, there are 16 exposure pathways that exist in Libby, 16.

Asbestos exposure can occur via the dust, soil, air, and other media

at commercial and residential sites. Cleanup has not even begun at

Troy, MT, which faces many of the same issues as Libby, including

a school building that needs to be cleaned.

The discovery of tremolite asbestos in an area that was supposed

to have been cleaned up twice calls much of EPA’s work at Libby

into question. What quality controls are in place to ensure that

their mediation is adequate to protect the public health? How long

will Troy have to wait before EPA begins their work? The Parkers

deserve better. All of the residents deserve better. EPA needs to
19

make Libby, MT, one of its top priorities. People are sick, they are

dying. They need our help.

We are the public servants, they are the employers. We are supposed to be working for them. Not some different Agency that has

a different point of view. We are the employees. We are working

for the people and the country who we represent. I strongly urge

the EPA to do their part and help right the wrong that has been

committed. It is an outrage, Ms. Bodine. I see EPA people come

and go. I think to some degree they look at it just as a turn of the

crank, punching the clock, it’s a job. That is not what your job is.

Your job is to serve the people. Your job is to clean up this Superfund site, get rid of all this asbestos, get rid of all this vermiculite,

get rid of it, clean it up more quickly, not just in a turn the crank,

passive way, as has been the case when this asbestos has twice

been missed.

Mr. Chairman, the Parkers and hundreds of other Libby residents ought to begin rebuilding their lives. I am embarrassed it has

taken this long, to be honest with you, Mr. Chairman, Ms. Bodine.

All these years it has taken, you had one person working up there

that was really good, for 2 or 3 years. His name escapes me right

now. He was excellent. He had the confidence of people in Butte.

He bled. He cared. He was an amazing guy. He lived in the community for a couple, 3 years.

You just need to, I will get his name to you. You have to find

people like him, not only in Libby, but everywhere. But I am thinking more about Libby right now.

Thank you for holding this hearing, and I look forward to responses to my questions. I just want to impress upon you, Ms.

Bodine, I have never experienced anything in the years I have been

in the Senate, and that is 27 years, like this. These people just, it

is a part of Montana that is more remote, it is a part of Montana

people just don’t know a lot about. These people were made sick

intentionally, in my judgment, by W.R. Grace. There is a criminal

suit going on right now. If you look at the documents, it is quite

clear that W.R. Grace knew what it was doing, it knew it was causing this damage to the people of Libby, MT. That is why they

transferred 90 percent of their assets out of reach of patients, so

lawsuits couldn’t attach 90 percent of their assets. That is on the

record. They did that intentionally to avoid these lawsuits. They

knew what they were doing.

At least you ought to know what you are doing. I don’t say that

personally. I say that as the Assistant Administrator of EPA, to get

this done right away. Clean it up.

Thank you, Mr. Chairman.

[The prepared statement of Senator Baucus follows:]

STATEMENT OF HON. MAX BAUCUS, U.S. SENATOR FROM THE

STATE OF MONTANA

Mr. Chairman, thank you for holding this hearing. Part of the EPA’s mission is

to protect the public health from environmental degradation. Perhaps nowhere is

this challenge greater than in the town of Libby Montana. Just listen to the story

of Mel and Lerah Parker.

In 1993 they bought a little piece of land along the Kootenai River from W.R.

Grace and Company. This land was the site of W.R. Grace’s screening plant, but

to Mel and Lerah it was the perfect spot to start their own business, Rain Tree
20

Greenhouses. They worked hard, built their business, and by the late 1990s they

had the largest nursery in the State of Montana.

Then in 1999 the extent of asbestos contamination was uncovered, and the Parker’s world literally came crashing down. The EPA had to tear down their outbuildings, their greenhouses, and their home. The EPA even had to destroy their

cars and many of their personal belongings.

For several years the Parkers rented a house. Lerah Parker was recently diagnosed with Asbestosis. Because of the huge loss they took with their business, they

will never rebuild their greenhouses, but the Parkers are resolute. They hope to one

day rebuild a house on their little piece of property along the Kootenai River.

This is just one story from Libby. There are hundreds of others, many of them

even more tragic. Tremolite asbestos from the W.R. Grace vermiculite mine has

killed some 200-area residents and sickened hundreds more.

Assistant Administrator Bodine, I hope to impress upon you just how important

it is that the EPA get the cleanup in Libby right. In all of my years as an elected

official this issue of doing what is right for Libby is among the most personally compelling things I have ever been called on to do. I’ve been to Libby 18 times since

2000 and every time I go the devastation is worse and worse. More people are sick

and dying. Helping the people of Libby is a very personal fight for me. I want to

do all I can to get Libby residents the help they need and deserve. It’s the right

thing to do for both the victims and the future generations we can still protect.

That’s why I was completely outraged to learn just last week the workers digging

a waterline discovered a patch of tremolite asbestos near the surface 8 to 12 inches

thick, 3 feet wide and 20 feet long on a site that was supposed to have been cleaned

up, not once but twice, the first time by W.R. Grace and the second time by EPA

itself. Compounding the offense is the fact that the workers were digging a waterline that was intended to serve the park that features the asbestos victims’ memorial. It’s not right. It’s totally unacceptable.

Given such outrageous failures, how can the EPA ever assure folks like the Parkers that it is safe to rebuild their homes?

According to EPA’s own calculations there are 16 exposure pathways that exist

in Libby. Asbestos exposure can occur via the dust, soil, air, and other media at

commercial and residential sites. And cleanup has not even begun at Troy, MT,

which faces many of the same issues as Libby, including a school building that

needs to be cleaned.

The discovery of tremolite asbestos in an area that was supposed to have been

cleaned twice, calls much of the EPA’s work at Libby into question. What quality

controls are in place to ensure that the remediation is adequate to protect the public

health? How long will Troy have to wait before EPA begins their work?

The Parkers deserve better—all Libby residents deserve better. EPA needs to

make Libby, MT one of its top priorities. People are sick and dying and they need

our help. I strongly urge the EPA to do their part and help to right the wrong that

has been committed.

Mr. Chairman, the Parkers and hundreds of other Libby residents want to begin

rebuilding their lives. Thank you for holding this hearing. I look forward to hearing

the responses to my questions.

Senator THUNE. Thank you, Senator Baucus.

We will now proceed to our second panel. We have with us Assistant Administrator Susan Parker Bodine. Ms. Bodine, Administrator Bodine, please proceed with your testimony and then we will

open it up to the panel for questions.

STATEMENT OF SUSAN PARKER BODINE, ASSISTANT ADMINISTRATOR, OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE, ENVIRONMENTAL PROTECTION AGENCY

Ms. BODINE. Good morning, Mr. Chairman, members of the subcommittee. I am Susan Bodine, EPA’s Assistant Administrator for

the Office of Solid Waste and Emergency Response. I am very

happy to appear today to talk about the Superfund program, identify the challenges, talk about where we have been in the past and

where we are now that the Superfund program is in its third decade.
21

I will summarize my statement, but ask that the entire statement be submitted into the record.

Senator THUNE. Without objection.

Ms. BODINE. You have my written statement, and in that, I have

attempted to explain the history of the program. Some of you need

no explanation, some of you have been working with the program

for many years. The point I am trying to make in the statement

is that the Superfund program is not where it was in 1980 when

it was enacted by Congress in response to situations like Love

Canal or Times Beach.

At that time, there was outcry and concern over large toxic waste

sites, the program got started, started investigating these sites.

But a lot of time was being spent on investigation at that point,

because it took a lot of time to determine what the risks were and

to determine what the technological solutions were. So not a lot of

progress was made in the 1980s, I think that is fair to say.

In the 1990s, in the program in its second decade, you saw more

progress. Ten years had gone by, studies were completed, remedies

were selected, so you did see more sites going to construction. So

again, it is a natural progression of the program.

The program is now in its third decade. We are not done, by any

means. What has been completed are the easier sites, the smaller

sites. I know that other EPA officials have made that point. What

I tried to do in my written testimony and in some of the attachments to that was provide the documentation that shows that that

is the case, the vast majority of the sites that are at the construction complete stage were the low cost sites, were sites that cost

EPA itself either less than a million or less than $5 million.

What we do have left are the higher cost sites, either higher in

oversight costs being carried out by PRPs, or fund lead sites with

multiple operable units that are more complex, or Federal facility

sites, which can have up to 10 or more operable units. That is the

challenge that we face in the program now.

But I also want to impress upon the subcommittee that that is

not the only cleanup that is going on. There has been a huge

growth in cleanup through State programs. There has been a huge

growth in State cleanup programs as well as State voluntary cleanup programs, as well as brownfields programs that EPA has sponsored and supported. So what would have been listed on the Superfund National Priorities List back in the 1980s, those sites aren’t

even coming to the NPL any more. We are not seeing the small,

low cost sites that were listed in the 1980s, and completed in the

1990s. Those sites are being done under State programs.

The sites that come to the National Priority List today are either

the complex sites from a technological standpoint, or they are the

sites that don’t have cooperative PRPs, and that need Federal enforcement. That is the profile of our current sites, and those are the

sites that we are managing today.

I would like to talk about some of the issues that were raised in

earlier discussions this morning. One of the areas that I very much

am personally interested in is improving management of the Superfund program. That requires good information. The program, and

the Agency has been getting much better about providing information. In fact, far more data and far more information is available
22

about these sites than has ever been in the past. I would point out

that currently, for every site, we have a site profile—I have examples of a couple of them here, that is available on our Web site.

These profiles link to documents. That is an exciting technological advance that we now have called SDMS, Superfund Document Management System. We are linking to the actual records of

decisions. You can link to the risk information from ATSDR. You

can link to investigation and RFS documents. There is far more information available about each NPL site than has ever been available before.

I would also like to talk about the issue of whether or not sites

are exposure under control or not under control. On that issue, that

is a measure that was never publicly available, never actually reviewed until 2002. In 2002, EPA began to look at the sites in terms

of whether human exposure was under control or not, and make

that information publicly available. So again, that is new information that had not previously been available.

The data on that, that is one thing I have been spending a lot

of time on since I started in this job in January of this year, is to

improve the quality of that data. I think Senator Durbin made the

point, the sites have shifted. That is true. That is because we have

been spending a lot of time examining those sites, talking to the

regions to determine whether or not truly there is human health

under control or not. By that, that definition means whether or not

there is a complete exposure pathway to a chemical or contaminant

above a level of concern. If there is a complete exposure pathway,

it should be indicated as not under control, human health not

under control. If there is no complete exposure pathway under current site conditions, it should be under control.

Based on the documents that we provided to the committee prior

to my confirmation, reviewing those, it was clear that the regions

were essentially all over the map in how they were interpreting

that, how they were supposed to apply that definition. We are now

changing our guidances, making sure everyone understands how it

is supposed to be used.

We have completed review of all the sites that are not under control. We are also going back and looking at the sites that were listed as under control to make sure those were properly categorized.

So when we are done, we will have a good data-set that we can rely

on and use to manage the program. I wanted to make sure people

understood that.

Then one point, I know I am way over my time, in terms of the

risk information related to these sites, that information is absolutely public information, the risks associated with these sites. It

is certainly on our Web sites, and we have links to documents. But

also the information that we provided to the committee that dealt

with the risks and the exposure pathways, all that information was

not marked privileged. The privileged information had to do with

funding and the issue of privilege was related to enforcement. The

Agency is not at all claiming that any situation or any issue with

respect to risk should not be a matter of public record.

Thank you.

Senator THUNE. Thank you, Administrator Bodine.
23

Let me ask a couple of questions and then I will turn to my colleagues to ask their questions as well. You have made reference to

the human exposure not under control. Could you explain what

that indicator means? Does it mean that there are NPL sites that

have actual exposure going on?

Ms. BODINE. To flag a site as human exposure not under control,

what that means is that under current site conditions, there is a

completed exposure pathway. What we don’t require are the remedial project managers to go out and prove that there is exposure,

because that would be too difficult. We want to know that there is

a completed exposure pathway. We consider that a problem that

needs to be addressed.

So there is, I’m certain, actual exposure at some of these sites.

But also, not actual exposure at some of these sites. In the information that was provided to the committee, again as part of my confirmation process, there were in many of the templates that were

filled out on sites, you would have the first column saying no current exposure, and the second column saying potential exposure.

Again, that is very confusing when we go back and look at it.

The remedial project manager may have said, no current exposure, but if there was a pathway, we would still say yes, that site

is not under control and needs to stay on the not under control list.

If there was no exposure pathway, for example, if you had contaminated groundwater but nobody was drinking it, no wells were sunk,

then that site right now is under control and that is how we would

track it.

That isn’t to say the site is done. That isn’t to say we have

achieved long-term protection. That is still a site we are addressing

through our remedial program. But human health exposure is

under control at that site.

Senator THUNE. If you say that there is an exposure pathway,

when do you then make a determination about, that there is potential for exposure when exposure actually occurs? When you say you

are tracking that, if there is an exposure pathway, how do you get

to the point where you make a determination?

Ms. BODINE. We are tracking the completed pathway and then

when that pathway has been cutoff, and again, these are interim

measures, but cutoff either by providing bottled water and alternative water supplies, on putting up a fence, just so the people are

no longer exposed, then we would say human exposure is under

control at that site.

The reason we don’t go and actually look for actual exposure is

because that would literally require you to essentially test people

themselves to see whether they are exposed. We don’t require that.

Senator THUNE. Let me ask you, since you have been on the job,

since being confirmed as the Assistant Administrator, have you

identified or been advocating or come up with any suggested improvements in the Superfund program? Obviously this is the first

oversight hearing this committee has had in several years. So it

hasn’t been closely examined. My assumption is that having been

on the job now for a few months, you have probably had an opportunity to look in some detail at the program.

Do you have recommendations that you would like to forward or

things that you think can be done to improve the program?
24

Ms. BODINE. I certainly do believe that we can do better managing the program. That is something that I intend to do and intend to continue to work on. Again, I have spent a lot of the time

in these first 6 months making sure that the data we have on exposure under control and exposure not under control are accurate.

Because then, as has been mentioned by Senators here this morning, we can then be confident that we can use that data to manage

the program to emphasize and to require that the data be used in

prioritization. In fact, I have already made those changes that the

indicator does need to be used in the funding prioritization.

The other changes again also go to having good information to

manage the program, including our data bases and our tracking

systems. We have a large effort underway right now to bring all

of our data bases together so that a manager has access to everything at once. Again, we have made incremental steps on that. We

have the documents now. We are tracking, doing a better job, we

are tracking things like 5-year reviews, which had not been tracked

before and following up where the reviews haven’t been completed.

In addition, we are now looking at what is called the post-construction phase. A lot of the emphasis in the program to date has

been on whether or not you have achieved construction completion.

That was the benchmark people were looking for. But construction

completion only means that the construction of the remedy is done.

It doesn’t mean that you have achieved long-term protection, it

doesn’t mean that you’ve got a site that’s back into productive use.

We are now focusing on the post-construction phase, which has

not been focused on recently. It is very important, because this is

where we are really bringing the sites back to the American public,

back to use. To do that, we need to make sure that we have institutional controls in place. I am placing a huge emphasis on that. We

have established a new measure under GPRA, the Government

Performance and Results Act, called Superfund Sites Ready for ReUse. To be considered ready for re-use, our definition requires the

institutional controls to be in place. That is a brand new effort, but

again, that is to make sure that we are delivering on our promise

to the American people that yes, we are constructing the remedy,

but also, we are bringing these sites back into productive use.

Senator THUNE. Thank you.

Senator Obama.

Senator OBAMA. Thank you very much, Mr. Chairman. I want to

thank my Ranking Member, Barbara Boxer and others, for deferring to me. I am going to have to leave, unfortunately, in just a

couple of minutes.

First, any idea why it took us 9 months to get a response, Senator Durbin and myself, on this issue? I know it actually began before you were even appointed. But if a couple of U.S. Senators take

9 months to get a response, I can only imagine what the response

would be like for ordinary citizens. Give me some sense of what is

going on there.

Ms. BODINE. First, let me apologize personally for that. That

should not have happened. What I believe happened was that people assumed that the information on the sites that was being provided to the committee was also being provided to you personally.

Because the questions that you were asking were the same ques-
25

tions that the committee was asking. So there was a failure to follow up with you personally, and you obviously deserved a personal

response.

Senator OBAMA. Well, that’s fine.

Ms. BODINE. But the EPA has put in a process to track all of the

correspondence, so this doesn’t happen again. I apologize.

Senator OBAMA. Explain to me, if a lay person was just reading

the term uncontrolled exposure, that would indicate that we don’t

have a handle on the exposure and that if in fact there are individuals, particularly children, who are playing on a site or near a site

that is uncontrolled, that it poses a potential health risk to them.

Am I misunderstanding the definition of uncontrolled? If I am not,

then what active steps is the EPA taking in bringing it under control?

Ms. BODINE. In many cases, there is an interim step, you have

long-term protection and you have final cleanup. But an interim

step to cutoff exposure would be, for example, a fence. Another interim step could be a cap. In the skateboard park that you referred

to at the Ottawa radiation site, there is 6 feet of soil between the

radiation and the skateboard park. That is providing protection.

The piece where exposure is not cutoff is another area that is

about 75 feet away. It is outside the skateboard park right next to

a building. The owner of the building is making sure, is keeping

people from that area and watching the site, monitoring the site so

that it is not being trespassed upon. But that area does not have

a fence at this point in time.

Senator OBAMA. So just so I am clear, it is fair to assume that

if this is an uncontrolled site that it poses some potential health

risk, is that an accurate statement?

Ms. BODINE. Yes, that is an accurate statement.

Senator OBAMA. OK. If that is in fact the case, how do you

prioritize within the Agency to ensure that a site is considered controlled? What funding mechanisms at this point are being, are either existing or being pursued to bring these sites under control?

Finally, what proactive measures are in place to inform residents

who might be exposed that this is in fact an uncontrolled site?

The bottom line is, I am trying to get to a point where, if I am

a parent with little kids near an uncontrolled site, (a) I know that

it is an uncontrolled site; (b) that my State and local authorities

are aware that it is an uncontrolled site, not that it is just posted

on a Web site, but they actively know that this is the case; and (c)

that there is some sort of ongoing efforts to bring it under control.

Can you walk me through how that process is taking place right

now?

Ms. BODINE. On the awareness of the public, every Superfund

site has a community involvement coordinator. So we have a person who is assigned to work with the community and communicate

to the community exactly the risks posed by the site.

On the funding priorities, up until this point, the regions have

established the priorities based on their understanding of the risks

at each site and are prioritizing based on risks. That has been done

at the regional level. But that means that at the headquarter level,

from a management level, I don’t know exactly how they are establishing that.
26

So what I would like to do going forward is be much more clear

in guidance to the regions on how they establish their funding priorities, that they do need to take into account the human exposure

indicator.

Now, they have told me they already take this into account, and

I believe that to be the case, but it is not formalized in terms of

how you track to this particular environmental indicator. We will

be doing that.

Senator OBAMA. What I would like to do, and I am out of time,

I am going to work with Senator Durbin’s office and with Senator

Boxer to put in some more formal requests. I think we have to

have some sort of formalized system so we know how priorities are

being set and how these judgments are being made. So part of

what I—it may be that in some cases you just don’t know the answers yet. In other cases, it may be that the system has broken

down in some fashion.

But I would expect, I would like to be able to say very clearly,

here is how decisions are being made about controlling these sites.

If it is a function of a lack of money, I want to be able to know

that so that I could potentially work to get dollars for the EPA to

control these sites. If it is not a question of money but just simply

there are too many sites and we are prioritizing them based on

risks and exposure, I would like to know what the formula is by

which those decisions are being made, so that I can make some

educated decisions about how I am going to proceed in terms of

making sure my constituents are protected. I don’t think that is too

much to expect from your office.

Ms. BODINE. If I could just respond. I do want to assure you that

the people who are making these decisions are the technical experts in the field, that these are not, it is not a top-down system.

We have the folks that are working on the sites making these evaluations and judgments and they are very dedicated people.

Senator OBAMA. But if you, as the head of the responsible EPA

office, don’t know how those judgments are being made, and I don’t

expect you to know everything, although it would be nice if you,

coming to this committee knowing that these questions were going

to come up, had been fully briefed on it. But if you are having problems articulating it, I certainly don’t know it. I guarantee you that

the folks living in Ottawa or these other sites don’t know it. I am

just saying, this is something that we should know. It should be

public, it should be clear, it should be transparent and people

should be held accountable. That is what I am going to be looking

for in the coming months.

Thank you.

Senator THUNE. Senator Boxer.

Senator BOXER. Yes, and I know Senator Obama is on his way.

Before he leaves, I just want to pick up on something he said, very

quickly. You said that the people who are making the decisions are

in the field. Now, that is true in terms of their recommendations

for how sites should be cleaned up.

Unfortunately, it is the budget crunchers who are deciding how

much you are going to spend on these sites. I am not going to identify any of these, nor am I going to read them, in deference to my

Chairman’s remarks, which I, by the way, totally disagree with but
27

respect, and so I will go by his rules and will not put this in the

record. But very clearly, Senator, and I am going to give you this,

because you are allowed to see this, because you are on the committee, even though it said privileged, what we have here are directions sent out to people in the field saying, put together a budget,

and one of them should be the least you can get by with. Not one

word here about what we must do to make people safe.

So I want to give this to you, because I think you are onto something here. It seems like it should be simple, but it isn’t simple

where there is no commitment to this program. My belief is yes,

the people in the field are committed. That’s why I know what I

know. But the people at the top, and I am not talking about you,

Ms. Bodine, I don’t know exactly what your influence is there, but

I have to say, there is no interest, in my view, in this program.

So continuing, without mentioning, identifying the sites, I am

going to ask my staff to give you a one-pager that was marked

privileged by your people on a site I will not mention. I have gone

through this with counsel. There is nothing in there, says my counsel, at all, that would have any impact on any lawsuit, as a matter

of fact, in this case, the settlement funds are exhausted, and even

if there is any future lawsuit, nothing in this document.

But I would say this. My gut tells me the reason this is marked

privileged so people out there can’t see it and people in this neighborhood can’t see it is because it says that the human health risk

here in this particular site, seafood consumption risk, is 40 times

higher than it should be or higher in worst case scenarios, and dermal contact risk with shoreline soils, we talk about direct contact,

is 4 times higher than it should be, or higher under worst case scenarios. Public and private access is a continual concern.

This deals with PCB levels that are 30 times higher than ambient water quality criteria, sediment PCB levels 10,000 times higher

than ecologically safe levels. Your people are saying this. The real

thing, I think, that your Administration doesn’t want people to

know is, you are actually considering taking 26 years to clean this

up. You are considering 26 years to clean this up. You have got to

be kidding. What are we here for?

So you have looked at this. What in this makes this that I can’t

hand it to everybody in the audience and the press? What is in

here that makes it privileged?

Ms. BODINE. I would offer to sit down with you and with EPA

counsel to——

Senator BOXER. No, no, no. I want you to tell my Chairman, who

is defending you, what in here makes this be marked privileged, so

that he has to now tell me that I can’t give it out to the people,

or people who aren’t on this committee? What in this document?

Ms. BODINE. The issue, the areas of privilege that EPA is concerned about have to do with enforcement, which is why a document, on a document by document basis, I would be happy to sit

down and determine if any enforcement——

Senator BOXER. I have already told you that our counsel has

looked at this, the Senate counsel, and says there is not one thing

in here that talks about enforcement. It has nothing to do with it.

If you are worried about linking, we are not going to link.
28

So I guess I would ask you, on this particular document, so that

we don’t go into the range of documents, will you please have your

people look at it and let me know by the end of the day if I can

in fact release this to the Senators, two of whom do not sit on this

committee, and to the Members of Congress, both sides of the aisle,

and the people in the community? If you would get back to me, and

in writing, in a privileged communication, tell me why I can’t do

that.

Now, I want to get some other things, and I see that my time

is running out, so let me do this and ask for another round, if I

can. Mr. Jim Gulliford has been nominated to be Assistant Administrator for the Office of Prevention, Pesticides and Toxic Substances. After his hearing, members of this committee asked him

a series of written questions. When we received his responses, we

could see that edits had been made to the document, cutting important information relating to things like whether EPA had internally sought more funds for the Omaha lead project than were formally requested by the Administration.

The fact that the answer was yes was deleted. We have, I know

you probably can’t see this, but I am going to read. This chart

shows the deleted information. Prior to the issuance of the interim

record of decision in December or initial request for funding to

sample residential properties was higher than the amount received,

but had virtually no impact on the actual cleanup, since we were

limited in the amount of—is that what they wrote instead of—yes.

So in other words, it was taken out, the simple answer, and this

was what was inserted.

There were other important deletions as well. Mr. Gulliford has

told us he approved the original response and headquarters asked

for changes. A staff member in the Office of Congressional Affairs

indicated that you made or were involved in the changes. More recently we were told by the same office that you were not involved

in the changes. Were you or your staff involved in any way, directly

or indirectly, in deleting the information relating to Superfund in

Mr. Gulliford’s responses? Did you meet with the potentially responsible parties in that case and discuss issues related to the deleted information? Do you believe Members of Congress are entitled

to know the analysis of the funding needs for Superfund sites when

they ask for it?

So those are three questions.

Ms. BODINE. No, I had nothing to do with any edits, nor did anyone in my office have anything to do with any edits of Mr.

Gulliford’s testimony.

Senator BOXER. So where were they edited?

Ms. BODINE. I do not know.

Senator BOXER. Will you find out? Because he said——

Ms. BODINE. All the responses have to go through the Office of

Congressional and Intergovernmental Affairs.

Senator BOXER. I know, but you are responsible. You are the

head of the Superfund program. He answered a question on a

Superfund project, simply saying yes, that EPA internally sought

more funds than were formally requested. You saw how that answer came back. Did that not get you upset, that Mr. Gulliford was

being overturned by someone outside your office?
29

Ms. BODINE. I did not see those responses before they were sent

to the committee.

Senator BOXER. OK. So even in your high level position, you

didn’t look at who in your office did?

Ms. BODINE. No one in my office looked at those responses before

they were sent to the committee.

Senator BOXER. Well, where did they come from? Who delivered

the responses to this committee, the answers to the questions?

Ms. BODINE. The Office of Congressional and Intergovernmental

Affairs.

Senator BOXER. So the Office of Congressional Affairs deleted information that Mr. Gulliford answered, and you didn’t see it, nor

did you look at it before it came here?

Ms. BODINE. That is correct.

Senator BOXER. Thank you. Did you know anything about it, that

they were changed?

Ms. BODINE. Only after the fact, after——

Senator BOXER. Did you do anything about it? Did you talk to

anyone and say, why did you do that, why did you change Mr.

Gulliford—after all, you are pushing for him. He’s a good guy. He

answered a question honestly and then his simple, straightforward

answer is turned into gobbledygook. Did you make any—did it disturb you when you found out about it? Did it disturb you? Be honest with us. No one is going to hurt you for being honest.

Ms. BODINE. I was surprised. The emotion I felt was surprise. I

guess I am not sure how to respond to your question.

Senator BOXER. Well, honestly, I wish you would just say how

you felt. I feel like you’re saying you were surprised. To me it is

shocking that someone over at the Office of Congressional Affairs

would edit someone’s answers to questions that are important for

this committee to know, important to know where this man stands.

Now he, his whole image changes when that answer changes, a

simple, straightforward question, did the EPA staff want more

money to clean up that site in Omaha. ‘‘Yes,’’ he answers, and then

we get gobbledygook. It is very disturbing.

So I guess—I know my time has run out on this round. I just

want to say to you, we need you to be honest with us. You are

there to fight for the environment. That is what the EPA—it isn’t

the Environmental Pollution Agency, it is the Environmental Protection Agency. We can’t seem to get that kind of passion over here.

Thank you.

Senator THUNE. Senator Jeffords, we will recognize you, and Senator Boxer, I will say to you, we have people on the third panel

who have a plane to catch, so we are probably going to have to submit questions for the record.

Senator BOXER. That’s OK, I will submit them for the record.

Senator THUNE. OK, good. Senator Jeffords.

Senator JEFFORDS. I will put most of mine into the record. I just

have questions for Susan Bodine.

The Government Accountability Office has documented that the

Superfund program is operating with about 35 percent less money

in inflation-adjusted dollars than it had in 1993. How has this impacted EPA’s ability to clean up toxic waste sites?
30

Ms. BODINE. I wish I had a copy of the GAO report you are referring to. It is important, when you are looking at the numbers, to

make sure that we are not comparing apples to oranges. Because

in 1993, there was more in the Superfund appropriation than there

is now. The appropriation was covering ATSDR and NIEHS, which

received $50 million, $60 million, up to $70 million a year each. So

that is one important component that we have to compare. I am

not sure, since I don’t have it in front of me, which two you are

comparing.

But I would also ask you to understand that because we are collecting money from PRPs and we are setting up special accounts,

we also have a great deal more money to spend that is not appropriated funding. Essentially, the expenditures have been relatively

flat. Because we get an extra $160 million to $170 million a year

that is PRP money, that is settlement money that is then put toward sites as well.

So funding has been relatively flat.

Senator JEFFORDS. The U.S. Supreme Court ruled last year that

parties liable under Superfund cannot sue other liable parties for

contribution unless they themselves have been sued by the Government. How has this ruling impacted the willingness of private parties to voluntarily cleanup contaminated property?

Ms. BODINE. Senator, you have asked me about how it has impacted people’s willingness. I don’t have that information. That is

not data that you can collect. I have heard concern from parties

that are interested in cleaning up sites. I have heard anecdotes

that this is causing people to think twice about stepping forward

and cleaning up sites.

But because we don’t collect data on people’s willingness, I don’t

have hard information for you on that.

Senator JEFFORDS. In August 2005, GAO recommended that EPA

issue regulations required under the 1980 Superfund law to compel

high risk facilities that manage hazardous substances, such as

hard rock mining sites, to provide financial assurances of their

ability to clean up their own mess, so that taxpayers are not left

on the hook when these companies go bankrupt. Why has EPA not

yet issued these regulations? What is EPA’s schedule for proposing

such rules?

Ms. BODINE. To date, EPA has relied instead on the financial assurance regulations under RCRA, the Resource Conservation and

Recovery Act, which requires financial assurance for people who

treat, store, or dispose of hazardous waste. We are now going back

and doing an analysis of sites on the National Priorities List, and

in terms of the date these sites were listed and under what regulatory programs were in effect at the time the sites were listed, to

determine if additional financial assurance on the generator side is

necessary. That analysis is not yet complete.

Senator JEFFORDS. Ms. Bodine, in your written testimony, you

suggest that cleanup slow-down is due to increased complexity,

rather than chronic funding shortfall. If this is the case, please explain why the EPA’s proposed target for completing site assessments will plummet by 17 percent in just 350 in fiscal year 2007.

Am I correct that the Superfund funding shortfall is constricting all

phases of Superfund activities?
31

Ms. BODINE. We have been, as we have been directed by Congress in appropriations bills, we have heard expressions of concern

on progress on the back end of what we call the Superfund pipeline, which is the remedial action construction phase, and have

been focusing on that end of the program.

We are still completing a great many site assessments. In addition, through brownfields programs, States are also conducting

many site assessments, in part with brownfields funding and in

part under their own authorities. So if you look, again, at the universe of activity, not just at what EPA itself is doing, sites are

being examined. In fact, you have to do that to determine whether

you are eligible for brownfields funding, to determine if you are an

eligible response site. You can look at these sites and screen them

out.

I would also point out that in the site assessment program, the

vast majority of sites are screened out. In fact, the States prioritize

those sites based on risk and already have a good understanding

of what sites need to be pushed forward, as we are working on

them.

Senator JEFFORDS. Thanks, Mr. Chairman.

Senator THUNE. Senator Lautenberg.

Senator LAUTENBERG. Thanks, Mr. Chairman.

I am going to try to be very brief, Ms. Bodine, which probably

would make you feel better. But the fact of the matter is that because of the shortness of time, I am going to ask you a question—

is it on?

Just to repeat what I said, you hear a litany, a chorus from here,

of disappointment, not just in the fact that these sites are not being

cleaned up at a rapid enough pace, but the integrity of the institution, of the Department, is also at stake here. Privileged? Senator

Boxer, whatever you do, unless we know that the staff has secret

clearance, don’t hand them that paper, because you could break the

law, based on the definition we have from our distinguished Chairman, that privilege means that it is for your eyes only.

So do you think that we are allowed to give any papers to our

staff that say privileged on them? Do you need a secret classification to be able to read these documents, privileged?

Anyway, it’s nonsense, and everybody knows it’s nonsense. It’s

deceptive and dishonest and really traitorous to the people we

serve.

What is the quick definition of an uncontrolled site, please, Ms.

Bodine?

Ms. BODINE. A site that has a complete exposure pathway, such

that a person could be exposed to contaminants above a level of

concern.

Senator LAUTENBERG. OK, fair enough. So in your testimony, you

say, listing on the site of the NPL, the completion, construction

could take, takes more than 10 years on average. So do we then

go out to the people living in the community and say, get the devil

out of here as quickly as you can, take your kids, cover them up

and leave the site? Does EPA do any warnings like that?

Ms. BODINE. As I mentioned earlier, we have a community involvement coordinator at every site. We also——

Senator LAUTENBERG. Do you know what they do?
32

Ms. BODINE. For example, we take interim actions, if it is a

groundwater exposure situation, we provide bottled water or we

provide municipal hookups.

Senator LAUTENBERG. Do you tell them that their kids could get

cancer or other diseases as a result of living there for, well, if it

is 10 years or 5 years or 3 years, whatever?

Ms. BODINE. The Agency holds public meetings and they discuss

the risks associated with the site.

Senator LAUTENBERG. Would it be a good idea to have a broadside mailing to say, look, this is dangerous territory you live on,

you live on a site that could be worse for your children than some

effects of terror, or that kind of thing?

Ms. BODINE. Yes, at many sites the EPA is very proactive at getting out to the community to tell them what measures they need

to take, good housekeeping measures, to reduce exposure. So yes,

that does happen.

Senator LAUTENBERG. It is so ludicrous. I think down deep you

agree, you are an intelligent person, you know what you have here.

Is there an impairment as a result of shortage of funds in working

the Superfund program?

Ms. BODINE. We are able to manage the program and protect

human health and the environment within our existing funding.

That is because we are prioritizing based on risk and because as

we just discussed, you take interim actions to cutoff exposure. So

you——

Senator LAUTENBERG. In my State alone, there are 19 sites that

are listed among the uncontrolled sites. If you had more money,

could we get faster action on those sites?

Ms. BODINE. Since I have been at the Agency, one of the things,

again, focusing on the human health not under control, I have gone

and looked at the sites that are listed as not under control and

asked, OK, what can we do? Because we should be able to take

steps to cutoff——

Senator LAUTENBERG. I know, that is the same question we both

asked. So now that you have asked yourself that question, could we

do anything, if we had more money to get on with these sites?

Ms. BODINE. The interim actions that the regions put forward,

they are doing. In some cases, they already had the money to do

it. In other cases they had a PRP to do it.

Senator LAUTENBERG. If you had more money, Ms. Bodine, respectfully, if you had more money, could you accelerate the pace of

cleanups? Yes or no, please. Yes or no.

Ms. BODINE. With more money, at some sites you may be——

Senator LAUTENBERG. I know it’s hard to come out, but please.

Ms. BODINE [continuing]. Able to proceed more quickly, but that

doesn’t necessarily——

Senator LAUTENBERG. Well, is that a yes or a no? Consolidate.

If you had more money, could you accelerate the pace of cleanup?

Ms. BODINE. Not at all sites. But at some sites, I am sure that

you could. And that when you look at the national program——

Senator LAUTENBERG. At some sites. I would hope that it is near

my grandchildren, where my grandchildren live. I would hope that

it is near where everybody’s grandchildren live that you could accelerate. Your denial, it’s outrageous. Honestly, Ms. Bodine, for
33

someone who has as lofty a position as you have, for the experience

you have, for the intellect that you have, the fact of the matter is,

the fact that you can’t answer that simple question yes or no is disturbing.

Should we, do you think that we ought to go back and ask companies to contribute to clean up or are you satisfied to ask the taxpayers in America to pay for it?

Ms. BODINE. We are asking companies to contribute to clean up.

In fact pursuing them and compelling them to pay for cleanup.

Senator LAUTENBERG. Right. But would you be willing to ask

companies that contribute to the pollution, I am not saying PRPs

now, I am saying as it used to be, and I was instrumental in that,

because I started with Superfund issues in 1983. Would you be

willing to ask companies that are likely to contribute to polluting,

to the pollution in sites, would you be willing now to recommend

to the Administration that maybe we ought to go back and tax or

put a fee on the products that are being made that could leave a

trail of pollution behind?

Ms. BODINE. I don’t think it is appropriate for me to express a

judgment on the source of revenue. The reason is because the

source of revenue for the Superfund program and the taxes that

used to be collected had no relation to the amount of appropriations

that was appropriated each year to run the program. That is because Superfund is an on-budget trust fund. This committee, I

know, understands trust funds. It is not like the Highway Trust

Fund. There are no firewalls.

So when you are appropriating money——

Senator LAUTENBERG. So technically, it had to be appropriated.

Ms. BODINE. Not only that, it is part of the unified Federal budget.

Senator LAUTENBERG. Right.

Ms. BODINE. So it is competing with health care, it is competing

with HUD, it is competing with everything else.

Senator LAUTENBERG. Yes, but it is easy to earmark it based on

the source of the revenue to say that any funds that derive from

that situation are to be directed at, it doesn’t have to be law, it can

just show intent. But your unwillingness to say that more money,

that we ought to get after these things, we ought to, that we—

sorry. There is no current funding for continuing remedial sites at,

at a particular site, if additional funding becomes available, cleanup could be accelerated by continuing the ROD determined to clean

up, the cleanup of the site.

Senator BOXER. Show that if they had more money they could do

a better——

Senator LAUTENBERG. No, well, that is——

Senator BOXER [continuing]. Every yellow tag——

Senator LAUTENBERG. Every yellow tag says, we would let you

see this information, it is not privileged, that has, that has identified here, says if there was more money these sites could be

cleaned up, in Indiana, it goes across the country. The fact that you

are, in no way do you see need for more money, that you admit

that more money would accelerate cleanups, then is it just that we

sit and wish and hope that our kids don’t get sick, that there are

no problems?
34

Senator Obama talked about a company that made radium faces

for watches. The women used to lick the brush to make them.

There is a site very near my house in Montclair, NJ, three blocks

away, where the neighborhood took almost $200 million to clean it

up. Finally clean. Took years. But the people who worked there all

died premature of cancer.

It is very disappointing, Ms. Bodine, that you can’t be more

forthright and say yeah, no, you know, take the response that is

likely to get. We would honor you for the truth, I promise you that.

Senator BOXER. Mr. Chairman, I just have one quick, very directed question about blood testing on kids. Could I ask it before

she leaves?

Senator THUNE. Let me explain our dilemma here. The third

panel has planes to catch, we have two votes scheduled at noon

and we have five people that need to——

Senator BOXER. Thirty seconds?

Senator THUNE. Thirty seconds.

Senator BOXER. Really. A recent National Academy of Sciences

report on the site in Bunker Hill, in Idaho, recommends universal

blood testing of children in the affected area. You have not requested these funds. My understanding is it is a $200,000 request.

Will you please answer the question as to why you haven’t recommended that?

Ms. BODINE. I will have to get back to you for the record on that,

because I believe the discussions were ongoing with ATSDR on that

matter. So I will have to respond for the record.

Senator BOXER. Please.

Senator THUNE. Thank you, Ms. Bodine. I am going to ask the

third panel to come forward. I want to, as soon as you get up here,

recognize in this order Katherine Probst, followed by Dr. Porter,

both of whom I am told have flights to catch. Then we will move

to Dr. Trasande, Mr. Steinberg and Mr. Spiegel. In order to accommodate, to make sure that all witnesses have an opportunity to be

heard, too, I would ask you to really try hard to stay within the

5 minutes allotted, because they will, at least the last notification

I got is that they are going to call votes at noon, we are going to

have a couple of votes.

I am going to ask Ms. Probst, if you would please proceed. Thank

you for being here.

STATEMENT OF KATHERINE N. PROBST, SENIOR FELLOW AND

DIRECTOR, RISK, RESOURCE, AND ENVIRONMENTAL MANAGEMENT, RESOURCES FOR THE FUTURE

Ms. PROBST. Thank you, Mr. Chairman, and distinguished members of the subcommittee. Thank you for asking me to testify today

about the critical issues facing the Superfund program. I am a senior fellow at Resources for the Future and have conducted research

on issues relating to Superfund for more than 15 years.

I am going to focus on four key issues today: cleanup funding,

monitoring and enforcing institutional controls, improved data and

public information, and the need for independent evaluation.

If Congress wants to hold EPA responsible for achieving cleanup

in an expeditious fashion for current and future NPL sites, they

need to ensure that the Agency has the funds it needs. As has been
35

mentioned, there has been a major decrease in the program’s funding. Since 1987 there has been a 40 percent decline in real dollars.

If that funding isn’t increased, it is really critical that EPA come

clean about the implications of the shortfall on the future pace of

cleanup and on progress at individual NPL sites. This will only

happen if Congress, either in oversight hearings such as this one,

or as part of the annual appropriations process, requires that EPA

identify, on a site-by-site basis, the specific shortfall for each site

on the NPL and specify which sites will be delayed, and by how,

much if funding is not increased.

In addition, Congress should require that EPA, on an annual

basis, present to this subcommittee and to the relevant appropriations committees, how much funding would be needed to fully fund

cleanup.

I would like to just mention, I think that the page that Senator

Boxer read is probably about New Bedford Harbor, which is a site

that needs $300 million more to be cleaned up and is estimated to

take another 30 years. I know that the EPA Regional Office region

has asked for increased funding—the site is currently getting about

$20 million a year. That is why it is going to take 30 years to clean

up that site.

The second issue, which Ms. Bodine has already mentioned, is

monitoring and enforcing institutional controls. Institutional controls are restrictions on the use of land, water, or groundwater that

are intended to keep people from coming into contact with contamination that remains at a site after all cleanup activities are complete.

These are now a common feature of remedies at NPL sites. Almost a decade after these issues were first raised by researchers

at RFF, the Environmental Law Institute, University of Tennessee

and others, the Superfund program still does not have a consistent

and reliable approach to tracking and monitoring these controls. As

more and more site remedies rely on institutional controls to ensure protection of public health, EPA must make monitoring and

enforcement of these controls a top priority.

Simply put, institutional controls work only when people know

about them and comply with them. It is foolish to spend tens or

hundreds of millions of dollars on a site remedy and them skimp

on the monitoring and enforcement of these controls. The Love

Canal site, which in many ways begat the Superfund program, is

the proverbial poster child for the failure of institutional controls

at a Superfund site. EPA has a choice to make: it can try to prevent future Love Canals by monitoring and enforcing these controls, or it can create a situation where the next Love Canal is just

waiting to happen.

The third issue I wanted to raise, which has also been mentioned, is improved data and public information. Getting information on the progress, contamination, cost, and health risks of NPL

sites is a challenge. While there is in fact some good information

to be found on the Superfund Web site and the site profiles that

Ms. Bodine mentioned are wonderful, it is actually very hard to

find those site profiles on the EPA Superfund Web site. You actually have to know where this information is ahead of time in order

to find it.
36

In addition, there are still major questions about the quality of

much of the information in the Superfund program’s two major systems, CERCLIS, which is basically their day-to-day management

data base, and the Agency’s financial management system (IFMS).

These systems need a major overhauling, not a tweaking. Absent

reliable information on site progress, contamination, and costs, it

is extremely difficult to evaluate or manage the cleanup program.

The final topic I want to talk about today is the need for independent evaluation. Twenty-five years after the Superfund program

began, we still do not know the answers to some very basic questions. We should know where scarce Superfund resources are going,

why some sites take decades to clean up, why some sites are extremely expensive, and why there are still sites where human exposure is not under control, but we don’t.

The Superfund program needs to do a better job of evaluating all

major aspects of the cleanup program to identify improvements.

EPA needs to create a small office that has strong policy and economic analysis capability, that is charged with conducting and

sponsoring independent analysis and evaluation relating to the

many aspects of the Superfund program. Once such a critical mass

is created, the first task for this group should be to develop and

implement a 3- to 5-year strategy for independent research and

evaluation and to set aside funds for this purpose.

All of the studies and evaluations should be subject to some form

of external peer review to assure credibility and all of these studies

should be made public. Even though the program is short of funds

for cleanup, good evaluation should help the program save money

and be more effective in the future, which is certainly an investment worth making.

In closing, I would note that after 25 years, many of the same

challenges remain as in the early years of the program. There is

a need for better data, for independent evaluation, for a willingness

to consider and make radical changes in funding and management

priorities. There is a need for increased transparency in all aspects

of the program.

I urge EPA to have as its goal not making the program better

this year or next, but to try to ensure that 5 years from now, the

program is better focused and managed, and that there is better

data and information about Superfund sites available to the public.

With an eye on the long term, rather than tomorrow’s news, EPA

can give the American public a much stronger and more effective

program.

Thank you very much.

Senator THUNE. Thank you, Ms. Probst.

Dr. Porter.

STATEMENT OF J. WINSTON PORTER, PRESIDENT, THE WASTE

POLICY CENTER

Mr. PORTER. Thank you, Mr. Chairman. I am going to be very

brief, also.

I have had about 20 years experience in Superfund, including

serving as Assistant Administrator back in the early days with

Senator Lautenberg and Senator Baucus and others on this subcommittee.
37

What I want to do is take a little different tack today. I want

to talk about how to improve the program from an efficiency standpoint. I grew up in the engineering world with a very large firm

in San Francisco, where budget and schedule were critical. I think

the EPA career staff has done a good job of doing the best they

could under the circumstances, and made a lot of progress. Twothirds of the sites have been completed, 400 sites are in construction, for example.

But the bottom line, after my 20 years in Superfund, including

running the program for a while, sites take too long and they cost

too much. I think this problem has to be attacked at the project

level. It is nice to look at all these other things, like management

systems, and I don’t disagree with them. But Superfund is not an

exact science. It takes a lot of common sense and a lot of leadership.

I want to talk briefly about three phases of the program, the

study phase, the selection of remedy phase, and the construction

phase. This may sound like kind of nuts and bolts stuff, but it is

very important, from my experience in project management. The

reason why we are talking about money here today, and talking

about time is because we need to be more efficient in getting these

sites finished.

On the study phase, most important is to set deadlines. Amazingly, most Superfund sites get started in with a study without any

real deadline of how long it is going to take. We need to say, this

is a 3-year project, or a 2-year project, or a 5-year project, and

make it happen.

A little secret I will let you in on is Superfund has become something of a jobs program. One of the reasons these sites take so long,

in my opinion, and I am being kind of blunt here today, is you have

a lot of consultants, a lot of lawyers, a lot of governmental employees, et cetera, who are making a pretty good living off Superfund.

I don’t mean they are being unprofessional. Most of them are quite

professional. But I do see that there doesn’t seem to be much pressure to finish a site.

Also, we need to identify alternatives early. There are not hundreds of alternatives at a site. There are three or four or five. We

need to focus on those early, focus the data on those and start talking about them. Because, as I sometimes tell the decisionmakers,

about half of Superfund is technical, about half is ‘‘other.’’ The

other includes communications, public relations, costs, and

implementability. It is also State acceptance, community acceptance, etc.

We need to streamline the deliverables. What we have in the

Superfund now is what I call a culture of deliverables, where if you

deliver enough products, meaning reports and documents and data

bases, you are assumed to have done the job. I want to see a culture of results and a culture of completion. I think that, again,

these all sound simple, but they are very important and they are

not ususally being done.

Selection of remedy. I would like to move the selection of remedy

up a notch to at least the regional administrator level where it was

in my day. It has been put further down in the system in most

cases. These are tough judgment calls. I would be more happy if
38

the regional administrator or someone in my old job, the assistant

administrator, were making more of these decisions. Because what

we have in this program is a serious of projects. It is a series of

projects, and you have to run projects on a project by project basis.

The role of land use is important. We don’t spend enough time

on land use. What is the site going to be used for? Let me give you

a quick war story from my day. At Rocky Mountain Arsenal, a

huge site near Denver, the Army decided after many years of work

and study and contention they were going to make this into a wildlife refuge. Once that decision was made, the whole thing flowed

very quickly. It has been a great success, billions of dollars were

saved at Rocky Mountain Arsenal and the public seems happy. So

land use is very important.

Let me move finally to the construction phase, which I think is

the main thing now, because a lot of sites are in construction. If

I were you, I would look at the $1.2 billion very carefully. I say this

also to Susan and her colleagues. Two billion dollars is a lot of

money that the Government has given EPA for Superfund, not to

mention an even larger amount of money put in by PRPs. Some

60–70 percent of all sites now are cleaned up by responsible parties.

I am concerned that not enough of that money is getting directly

to the sites. EPA is a large organization. There is a lot of overhead,

there is a lot of groups at headquarters that siphon a fair amount

of that money off before it gets to the field. I think the people in

the field, have every expectation they should get more of that

money. I think that can be done.

Frankly, I would consider, if you want to do something, and I

would answer yes to what Senator Lautenberg said to Susan, you

could do more work with more money. I don’t think we need lavish

amounts of money. I am not for new Superfund taxes. But this

committee and others might want to appropriate somewhat more

money, directed very directly at sites that need to be finished.

Some of these sites don’t need huge amounts of money. Some do,

some don’t. These sites were created by everybody from cities to

counties to industry to individuals, and I think Federal revenues

are not a bad way to fund sites where there are no viable responsible parties.

So that is what I would like to say. I think the program has

great room for efficiencies, and we could do much more with sounder project management. We need to get people on the hook by

name, know who is making decisions at sites. I don’t want to just

see a lot of data bases and other things. I want to know, because

I grew up in the project world, who is responsible for finishing a

project.

Thank you.

Senator THUNE. Thank you, Dr. Porter.

Let me, if I might, turn to Senator Boxer here for a minute. I

understand you two both have to depart here shortly. Maybe a couple of questions for the record, then we will go to the other three

panelists for your testimony. We do have two votes locked in at

noon, so we have some constraints.

Senator BOXER. I will be quick.
39

Dr. Porter, thank you so much for being here. In your testimony,

in your written testimony you say apparently EPA does not have

sufficient funds to expeditiously complete all of the construction

work now planned. You say something sort of interesting here. You

say, and that among other things, if Congress is satisfied that EPA

has done all it can do to squeeze out funding for as many construction sites as possible, then it might consider supplemental appropriations.

I find it interesting. Now, as you know, supplemental appropriations are used for emergencies. I do think if we go to Senator Lautenberg’s testimony, where he went through these uncontrolled

sites, and we go to the definition of what it means, that people are

being exposed, notwithstanding the stuff about wipe off your feet.

These are the good housekeeping things they suggest in these sites,

and I think Mr. Spiegel will tell more about it. But make sure you

wash yourself, don’t let your kids play if it is windy, wipe your feet

off, vacuum the house. That is not sufficient, to my mind. Just as

a family member, you know, how do I know how much wind is too

much wind and all the rest.

We have to clean up these sites. You are right. When you get a

plan, clean it up. There are plans. So my question is, if we were

to have support to go to supplemental, you would consider that we

should pick the most urgent sites, I am assuming.

Mr. PORTER. That is right. I don’t think Congress ought to frankly get in the business of earmarking individual sites or something

like that. But I do think what you should do first, and I think what

Susan is doing, is you should look at, and the Administrator should

look at the fact that EPA has $1.2 billion, year in, year out. Admittedly, it is a little less than it used to be, but it is still a fair

amount of money.

Are we really using that money effectively? Are we really using

it on these sites that need it badly? There is several hundred million dollars used at headquarters.

Senator BOXER. I am asking about supplemental.

Mr. PORTER. Well, supplementals I think——

Senator BOXER. If we went to a supplemental, you would say

some of those sites, you could say are emergencies. That’s what a

supplemental——

Mr. PORTER. I think you might be able to do that, yes.

Senator BOXER. That is what you said in your testimony.

Mr. PORTER. I don’t think I used the word emergency.

Senator BOXER. You said supplemental, and that is what supplemental is.

Mr. PORTER. Yes, if you are satisfied that the $1.2 billion is being

prioritized properly, then I think the next line of defense is to say,

let’s look at where we could spend money on sites that really need

to be cleaned up.

Senator BOXER. Thank you very much. I will stop there.

Senator THUNE. Any comment on that? I guess that was directed

to Dr. Porter.

Ms. PROBST. I can if you want, but you are short of time.

Senator THUNE. All right, let’s proceed to our third panelist, Dr.

Leonardo Trasande.
40

STATEMENT OF LEONARDO TRASANDE, M.D., MPP, ASSISTANT

DIRECTOR, CENTER FOR CHILDREN’S HEALTH AND THE ENVIRONMENT, DEPARTMENT OF COMMUNITY AND PREVENTIVE MEDICINE, MOUNT SINAI SCHOOL OF MEDICINE

Dr. TRASANDE. Good morning, Mr. Chairman and members of the

subcommittee. I am Dr. Leonardo Trasande. I am a pediatrician

and the assistant director of the Center for Children’s Health and

the Environment at the Mount Sinai School of Medicine, the Nation’s first academic policy center devoted to the protection of children from environmental threats.

Approximately 4 million children in the United States live within

1 mile of a federally designated Superfund sites. These children are

at especially high risk of exposure to chemical toxicants released

from these sites into air, groundwater, surface water and surrounding communities. Pound for pound, children drink more

water, they eat more food and breathe more air, and so they take

proportionately more of these toxins into their bodies.

They also do not metabolize, detoxify and excrete many toxics in

the same way as adults. Thus, the chemicals can reside longer in

children’s blood streams and cause more damage.

A third reason is that children are undergoing rapid growth and

development and those very complex developmental processes are

easily disrupted. Superfund chemicals have been proven to cause

chronic disease in children. Lead, mercury, polychlorinated

biphenyls and certain pesticides have been show to cause brain

damage and to contribute to learning disabilities and to disruption

of children’s behavior. Benzene, 1,3-butadiene and pesticides have

been etiologically associated with childhood malignancies. Ambient

air pollutants also have been shown to increase incidence of asthma and to trigger asthmatic attacks.

Never has cleanup of the Superfund sites become so important

to the health of America’s children. Over the past 30 years, chronic

diseases of environmental origin have become epidemic in American children. These include asthma, birth defects, brain cancer, developmental disabilities, pre-term birth, leukemia and testicular

cancer. These rapidly rising rates of chronic disease threaten the

health of our children and the future security of our Nation. It may

create a situation that has not been witnessed since the Great Depression, in which our current generation of children may be the

first to enjoy a shorter life span than the generation before them.

Toxic exposures at Superfund sites are also costly to our economy. Four of the leading diseases of environmental origin in American children have been found to cost our Nation $54.9 billion annually. Mercury pollution has been found to cost our Nation $8.7

billion annually, as a result of lost economic productivity, not to

mention the 1,566 cases of mental retardation annually that have

been associated with mercury pollution. Each of these cases is associated with additional special education and health care costs, and

thus the reduction of unnecessary toxic exposure to Superfund

chemicals can be an effective and cost-effective approach to improving child health in America.

This subcommittee should therefore continue to assure that EPA

is fully executing its duties under the Superfund program to identify and clean up hazardous waste sites in the safest and most ex-
41

peditious manner possible. The benefits of preventing exposure to

Superfund chemicals have been proven time and time again, first

with lead, then with PCBs and more recently with pesticides and

methylmercury. Delays in preventing toxic exposure will lead to

preventable and costly diseases in children such as developmental

disabilities, birth defects and childhood cancer.

I would like to close my testimony and urge the members of this

subcommittee to take two additional steps to prevent the health effects of Superfund chemicals in American children. First, the National Institute of Environmental Health Sciences Superfund Research Program has developed cutting edge technology to assess

and evaluate human exposure, determine effects of hazardous substances and track their transport through various media at waste

sites. The program improves the efficiency of cleanup at Superfund

sites and ensures that our public health is most fully protected.

Finally in this testimony, I wish to point out the urgent need for

full funding of the National Children’s Study, which will unearth

critical information of the health effects of chemicals found at

Superfund sites. I would like to take this opportunity to thank the

Chairman, Senator Thune and the Ranking Member, Senator

Boxer, for their strong support. Nearly all of the 105 study sites

overlap geographically with National Priority List sites, and thus

the National Children’s Study will provide extremely useful guidance about the health effects of Superfund chemicals and ensure

that the clean up of those sites most efficiently protects their

health.

Congress first authorized the National Children’s Study in 2000.

Since then, thousands of scientists have invested their time and energy in planning the study, and Congress has appropriated $55

million since then to design the study, complete the preparatory research and designate the seven Vanguard sites that will conduct

preliminary testing. To move forward, the study will require $69

million in fiscal year 2007. By failing to provide those funds and

abandoning the study at this point, we would forego all of that

dedication, all of that incredible effort and all that logistical preparation, just when it is poised to do so much for our children’s

health and prevent toxic exposure at Superfund sites.

I thank you and I would be pleased to answer your questions.

Senator THUNE. Thank you, Dr. Trasande.

Mr. Steinberg.

STATEMENT OF MICHAEL W. STEINBERG, SUPERFUND

SETTLEMENTS PROJECT

Mr. STEINBERG. Good morning, Mr. Chairman and members of

the subcommittee. On behalf of the Superfund Settlements Project,

I am very pleased to be here this morning. I would like to begin

with a big picture comment and then move on to some specific recommendations for improving Superfund.

Superfund today is far from perfect. But we should recognize

that it is a mature program. It has largely achieved its original objectives and it has largely addressed its original workload. The

gaps in our environmental laws that led to the creation of so many

contaminated sites have long been filled. Today, responsible parties

are cleaning up most of the sites on the NPL and they are paying
42

the full cost of those cleanups. EPA is using Superfund to pay for

cleanups at orphan sites where no responsible parties exist who

can pay.

So looking ahead, perhaps the most important thing that EPA

can do is to make the best possible use of its appropriation from

Congress. This morning I would like to offer four recommendations,

each aimed at conserving more of that appropriation for the core

mission of this program: cleaning up NPL sites that have no responsible parties.

First, as Dr. Porter mentioned, a sizable chunk of the Superfund

appropriation is transferred each year to other EPA offices that are

not involved in cleanup work. These include the Office of Administration, the Chief Financial Officer, the Office of Inspector General.

These offices provide what are essentially shared services to many

EPA programs, including Superfund. Together, they receive something on the order of $200 million each year, right off the top. That

is roughly a fifth of the total Superfund budget. We believe there

is ample room to trim those allocations and bring them more in

line with the program’s current needs. Doing so will conserve more

money for the core mission of cleaning up NPL sites.

Second, each new NPL site that gets listed is a long-term financial obligation for Superfund. So before a new site is listed, it is important to think clearly about why that site is being listed and

what other options might be available for addressing it. It may be,

for example, that the State’s enforcement program was unable to

secure cleanup from responsible parties. It may be that there are

no responsible parties to pay for a cleanup.

Whatever the reason for listing a particular site on the NPL,

what we need here more than anything else is transparency. Each

proposed listing should say something about why EPA wants to list

the site and what alternatives have been considered. This transparency will allow the local communities and other members of the

public to submit meaningful comments on how best to handle the

site. It will help us avoid listing sites that can be addressed

through other programs instead.

Third, EPA headquarters should have a larger role in key decisions about cleanups. Dr. Porter alluded to this as well. I would actually take it a step further. The reason this is so important is that

after the NPL listings, the next most important decisions in terms

of their impact on Superfund’s budget are the decisions about how

to clean up the sites. Each new record of decision, or ROD, selects

the cleanup plan for an NPL site. In practical terms, each new

ROD is a long-term financial commitment. So it is important that

the cleanups selected in these RODS are protective, practical and

cost effective.

Today, most of these cleanup decisions are made in EPA’s regional offices. Under an internal delegation dating back to 1994,

most of the RODs are signed by division directors in the 10 regions.

Now, there are advantages to this kind of decentralized decisionmaking. But we think it is essential that headquarters be able to

manage the rate at which this program takes on new long-term financial obligations. For that reason, we recommend having Superfund program managers at EPA review the new RODs before they
43

are signed. This will allow program management to address any

concerns they have before final decisions get made.

Fourth and last, EPA should reduce its spending on oversight of

cleanup work performed by experienced private parties. All too

often, as Dr. Porter mentioned, EPA hires outside contractors to

perform oversight, and those contractors devote excessive time to

the job. When this happens, the result is large oversight bills and

money is diverted away from Superfund’s other priorities. EPA has

long recognized that it needs to reduce oversight. But to date, the

Agency has made only very limited progress. We would encourage

decisive action here, which will in turn free up money that can be

used for Superfund’s core mission.

Thank you, Mr. Chairman.

Senator THUNE. Thank you, Mr. Steinberg.

Mr. Spiegel.

STATEMENT OF ROBERT SPIEGEL, EXECUTIVE DIRECTOR,

EDISON WETLANDS ASSOCIATION

Mr. SPIEGEL. Thank you, Senator Thune, Senator Boxer, and the

committee for having me here to testify.

My name is Bob Spiegel. I am the executive director of the Edison Wetlands Association. Since 1989, we have been working to

clean up contaminated sites throughout New Jersey and other

States. I personally work actively to clean up, or am working on

75 sites currently. Twenty of them are Superfund.

As you know, funds have all been dried up for orphan sites, or

sites with a lack of a viable responsible party. While the EPA publicly states that the cleanups are on track, it is clear at many sites

that work is proceeding at a far slower pace or not at all. This is

especially troubling, because many New Jersey Superfund sites are

located in densely populated residential areas, and their impact to

public health and environment is immediate and direct.

I want to talk about one site to illustrate the point at hand, and

that would be the Cornell-Dubilier Superfund Site in South Plainfield. On the EPA’s own Web site, they have a nice little icon, when

they talk about those sites that are not under control, there is a

little OK with a line through it. It is kind of comical, because it

really doesn’t give the full picture. It says that that site is not

under control, the Cornell-Dubilier site. It is now called the Hamilton Industrial Park, and it is home to approximately 15 active

businesses. The site is approximately 26 acres, and it sits adjacent

to a working class residential neighborhood.

From 1936 to 1962, Cornell-Dubilier manufactured electronic

components and capacitors, and they dumped PCB-contaminated

material directly on site. As was the custom up until 1980, onsite

disposal was how businesses disposed of their waste. In addition to

the PCBs, there are 26 other contaminants of concern that they are

worried about at the site, which impact the soil, the groundwater,

both onsite and offsite, the stream sediments and the Bound Brook

as well. PCB capacitors from this site were also found at another

separate Superfund site nearby.

Even in the State with more contaminated sites with any other,

I believe we have about 18,500, which is a pretty big record for

New Jersey, Cornell-Dubilier stands out. The EPA’s own risk as-
44

sessment has found cancer risks in excess of 3 out of 100. Three

out of one-hundred. That is a very high cancer risk. That is a big

number. Many residents have asked us how they can get cancer

studies for the neighborhood, which also have a very high prevalence of cancer and other illnesses.

Some of the highest levels of PCBs in the State of New Jersey

are caught in the fish caught adjacent to the brook at the site.

Many local residents still consume the fish, they still catch them

for subsistence for them and their families.

EWA first got involved with this site after we received a phone

call that children were riding their bikes around the disposal areas

in the rear of the property and a truck driving school was operating

at one of the most contaminated areas, creating a toxic dust cloud

that moved through the adjacent community. Although owners,

elected officials and regulators all knew that the area was highly

contaminated, no one seemed willing to take the lead.

After 21 years, after the EPA first got to the site, the scope of

the contamination remains staggering. They have buildings on site

where people are working inside these buildings, including women

of child-bearing age, where there is dust with high levels of PCBs,

lead and other chemicals. The EPA calculated the hazard index for

the PCBs at about 150. To give you an idea what that means, at

one they have to take an action. But they are allowing people to

work in these buildings.

Local families continue to catch the fish adjacent to the site.

Children continue to trespass on the site. The groundwater remains highly contaminated. Homes around the site still contain unacceptable levels of PCBs and require additional testing. There are

day care centers that have PCBs as well.

Rather than waiting indefinitely for the EPA’s next action, we

tested the Bound Brook and we found TCE in the surface water

downstream from the site at over 200 times the New Jersey surface

water criteria. While EPA maintains that the cleanup is moving

forward, this illusion is just a house of cards ready to collapse. The

Agency is making a promise they can’t deliver.

The remediation of the onsite soils at the site alone are going to

cost $90 million to $100 million. The PRPs have already told the

EPA that they don’t have the money. So where is the EPA going

to come up with the money for the cleanup? They are saying it is

going to start this fall. They haven’t told us yet where this $100

million is going to come from.

The ATSDR, their sister Agency, and EPA, are allowing people

to continue to work in these buildings, instead of doing a simple

measure which would vacuum them out or clean the dust out of

them and protect public health. EPA’s lone action, which—this is

the most shocking—they told workers the way to protect their

health is to wash their hands and wash their feet before they go

home, and then provide no insight to make sure that is done.

I know my time is short, I know we are running out of time here

as well. But while we look at a vast array of environmental problems, like global warming and over-development, we must not forget another inconvenient truth: without the Superfund tax there

will be no funding to clean up the sites like Cornell-Dubilier. I

would invite all the Senators who haven’t been to a Superfund site
45

to come out and visit one either in New Jersey or in their own community.

Thank you.

Senator THUNE. Thank you, Mr. Spiegel.

I have a question which I will, in deference to my colleagues who

have a high level of interest in this, submit for the record.

Senator Lautenberg, you are recognized.

Senator LAUTENBERG. You are very kind, Mr. Chairman, I appreciate it greatly.

I would ask two questions, one of Mr. Steinberg. As I read your

testimony and listened carefully to what you said, you said the

project you represent regards Superfund as a mature program that

has largely accomplished its goal. I ask you, if you were in a theater and someone screamed fire and you saw the flames, but half

of the people got out, would you say it was a successful evacuation?

Mr. STEINBERG. I would be concerned, Senator.

Senator LAUTENBERG. Oh, I am glad. I am glad you said that.

Because to suggest that the mission is largely accomplished, I

would tell you, if you want to move to 1 of 19 places in New Jersey,

very cheap real estate near these Superfund sites, you could bring

your family there and live there, expose your children.

Bob Spiegel is someone who is an expert because he has been

hands-on, working, pushing, cajoling, you name it, to get a couple

of sites cleaned up. One of them is a now infamous site that took

place in Ringwood, NJ, I didn’t hear whether you mentioned it in

your testimony.

Mr. SPIEGEL. It was in my testimony but I didn’t have time to

talk about it.

Senator LAUTENBERG. They said that the site was cleaned up and

it was closed off. What happened, please? Tell us very briefly if you

can.

Mr. SPIEGEL. Well, this really goes to speak to the heart of why

we need adequate funding. The Ringwood Mine Superfund site is

a site where the Ramapough-Lenape Indian Nation has probably

been poisoned as a result of the Ford Motor Company’s dumping

of toxic paint sludge throughout the community. EPA originally

listed this as a site and de-listed it without properly cleaning it up.

What they basically did was allowed the polluter, Ford Motor

Company, to come in, do the cleanup, submit the paperwork and

then essentially walk away and de-list the site. As a matter of fact,

this site is going to be the first site in the United States to be relisted, because of the amount of toxic waste that was dumped.

One of the biggest problems that we see with the lack of funding

is, it takes away the EPA’s hammer. When I say the EPA’s hammer, right now they have the treble damages where they can go

out, do a cleanup and then collect triple damages to a polluter.

That is why we have had 70 percent of the polluters step up to the

plate and do the work, because they know that if they didn’t, EPA

had the ability to go in, do the cleanup and then recover costs.

Well, that is not there any more. The polluters all know that

EPA is not going to step in and do the cleanup, because they don’t

have the funds. How are they going to step in and do $100 million

cleanups? They are not. As such, the processes have slowed down,

the cleanups are less comprehensive and there is more interim
46

measures, I’m sorry, no interim measures done at sites, because

EPA is afraid they will lose their places in the line. At least in Region II we have seen a very big slowdown in interim measures, because EPA tells us privately they don’t want to lose their place in

line for funding, even though they know that the funding is scarce.

So the site in Ringwood really speaks to a lot of troubling issues.

As a matter of fact, yesterday at this time I was up in Ringwood

with Bob Degroot and his wife, with their grandkids, pulling up

toxic sludge out of their backyard where their kids play. It is something, if you don’t see it, it is easy to just dismiss it. Thank you.

Senator THUNE. Senator Boxer.

Senator BOXER. Two brief questions. Mr. Steinberg, I found your

testimony to be just—I won’t characterize it. I find it unbelievable.

The first thing you say is the Superfund program has done most

of its work. I think Senator Lautenberg pointed that out, so I won’t

harp on that.

But then you say, don’t do oversight, and now we hear from Mr.

Spiegel that without oversight, we might have these sites listed

again.

Mr. STEINBERG. To be clear, Senator, I am not suggesting that

oversight is unnecessary. I am suggesting what EPA itself admitted 10 years ago, which is that far too much of their Superfund dollars go to oversight of PRPs.

Senator BOXER. OK, so you think there should be oversight, but

not as much oversight?

Mr. STEINBERG. Correct.

Senator BOXER. OK. Who do you represent today?

Mr. STEINBERG. I am here today for the Superfund Settlements

Project, Senator.

Senator BOXER. Who pays for that?

Mr. STEINBERG. It is an association of eight companies, and our

members are listed in my prepared statement.

Senator BOXER. OK. Are they polluters?

Mr. STEINBERG. They each have a number of Superfund sites

that they are involved in cleaning up.

Senator BOXER. OK, well, that puts it in context.

Doctor, would you tell us please, I cannot thank you enough for

your testimony and for the work you do. Because children, that’s

it for me. If we can’t come around and all of us say, it is our job

to protect them, we have failed as human beings, let alone Government officials. So you are doing this every day. What are the effects—you said something really frightening, that we may see that

there is not as long a life expectancy among our children as we had

because of exposure to toxics. Am I saying it correctly?

Dr. TRASANDE. Senator, we are facing an epidemic of chronic disease in childhood. A vast array of chronic diseases are on the rise

in American children and a large number of those chronic disease

have their origins in environmental exposures.

Senator BOXER. OK. I also noted the other day, with shock, to

see an article that our own life expectancy in this country has fallen way below where it used to be. I want to get that information

put into the record if I might. I don’t have it here, but it is just

sinking in terms of the world.
47

So, we don’t know why everything is happening, but certainly

you have raised an alarm. Could you tell us what impacts you have

seen from these toxins on our children, the lead, the arsenic, the

PCB? What happens to children, in graphic terms, what happens

to children when they have this exposure.

Dr. TRASANDE. Senator, there is what we know and much of

what we don’t know and need to learn more. But what we know

is unfortunately quite frightening. We learned first 100 years ago

with lead that lead caused children to have seizures, coma. Now at

lower levels, we have found that children were suffering loss of IQ,

behavioral problems and other neuro-developmental problems from

lead exposure.

Unfortunately, that was just the tip of the iceberg. I can’t say

that we have gotten much deeper into understanding the effects of

other chemicals.

Senator BOXER. And mercury? What does that do?

Dr. TRASANDE. Methyl mercury toxicity has affected on the order

of 300,000 children in the 2,000 U.S. birth cohort, costing our Nation $8.7 billion annually in lost economic productivity.

Senator BOXER. $8.7 billion lost?

Dr. TRASANDE. Yes.

Senator BOXER. And what does it do, though, to kids?

Dr. TRASANDE. Methyl mercury is ingested by women, it enters

the bloodstream, it then crosses the placenta and then causes brain

damage during the prenatal period.

Senator BOXER. Brain damaged kids. And then PCBs?

Dr. TRASANDE. PCBs also cause brain damage through a number

of mechanisms. Most especially the concern is that it may also displace thyroid hormone, which is so important for prenatal brain development.

Senator BOXER. OK. Well, Mr. Chairman, I will stop here. You

know where I am coming from on this, it is not surprising to you,

because you have known me for years. But here is the thing. When

we talk about these Superfund cleanups, we are talking about protecting our children, our families and our communities. I think a

lot of it gets lost in these memos that are marked privileged, where

people are just told, give me the cheapest thing we can get away

with, don’t fess up to what we need to do.

This whole baloney we hear that you can’t answer the question

if you have more money you could cleanup sites, Senator Lautenberg has a document that is not privileged where that is stated

clearly, in many sites after sites after sites. Yes, if we had more

funding, we’d do this.

So what I would love to have is an honest debate about this. In

other words, if we want to say it is not a priority, that’s OK, let’s

have that debate. I am willing to engage in it. But let’s not hide

information. Let’s not have this committee decide that the members of the public don’t deserve to know.

I will say this, Mr. Chairman, and I know you are a reasonable

person to work with, and I appreciate your allowing us to discuss

these documents, although we didn’t name them and identify them,

we are going to pursue this with Chairman Inhofe, the Democrats.

I don’t know about you and the rest of my colleagues, but the

Democrats that I have talked to are intent upon getting these docu-
48

ments out in the public. We are just going to make the fight. If we

have to go all the way to wherever we have to go, we will do it.

But this is a Government of, by and for the people. If the people

don’t know information that they should know, it is not a national

security question. As far as I can tell, by looking at these documents, a lot of them don’t even refer to cases, they are nothing to

do with it. It seems like it is being hidden from the public because

of political reasons. I can’t think of anything else.

So I am going to work—I hope we can work together on this. If

not, we will just have to debate it and see where we go. I thank

you so much for having this hearing. We haven’t had this in 4

years. I can kind of see why some people didn’t want to have for

4 years. I appreciate that we have had it.

Senator THUNE. Thank you, Senator Boxer. I will alert Chairman

Inhofe that he will be hearing from you on that subject, among

other subjects.

Senator JEFFORDS. Mr. Chairman?

Senator THUNE. Senator Jeffords.

Senator JEFFORDS. Dr. Trasande, thank you for reminding us

about the critical role of Superfund in preserving the health of our

Nation’s children. In your written testimony, you mentioned a

stunning funding, that environmental pollutants cost our Nation

an estimated $55 billion annually. I would like to enter this study

into the record of today’s hearing. Could you give us a copy of that?

Dr. TRASANDE. I would be most happy to.

Senator JEFFORDS. Thank you. Dr. Trasande, could you please

elaborate on this study a little bit, tell us your concerns?

Dr. TRASANDE. Certainly. My mentor and the director of the center, Dr. Philip Landrigan, led a study in 2002, published in the

Journal of the National Institute of Environmental Health Perspectives, in which he looked at just four diseases for which the evidence was strongest for the relationship between environmental exposure and harm to children. Those are lead poisoning, developmental disabilities, childhood cancer and asthma.

They aggregated the economic costs of those diseases and the

total morbidity of those diseases, and they assigned a conservative

percentage to limit the percent of that cost that could be attributed

to the environment. That is where they came up with the estimate

of $55 billion annual cost to society.

Given what we don’t know of the environmental exposures and

their role in children’s health, it is likely that that number is a

gross underestimate.

Senator JEFFORDS. Mr. Steinberg, I understand you are familiar

with the U.S. Supreme Court case involving the ability of private

parties to seek contribution from other potential responsible parties?

Mr. STEINBERG. Yes, Senator.

Senator JEFFORDS. How has this ruling impacted the willingness

of private parties to voluntarily cleanup contaminated property?

Mr. STEINBERG. I think the Supreme Court ruling has to be considered a setback in terms of the incentives for companies to perform voluntary cleanups. Often what is required to begin the cleanup process is for a company to sign up and agree to clean up a site

that a number of other companies also helped to contaminate. So
49

you sign up for 100 percent of the cleanup, and you do that typically in the hope that you will eventually get some equitable contribution down the road from the other companies that helped or

the other Government Agencies that helped to create the mess.

What the Supreme Court has done is to make that much more

difficult. It is now much more uncertain whether the right of contribution will ever be available. So companies have another reason

to stop and think before signing on to a new consent decree for a

new NPL site.

Senator JEFFORDS. Well, this concerns me, what you are telling

us. I hope that you will follow up, give us some help in trying to

see what we can do.

Mr. STEINBERG. I would be glad to, Senator.

Senator JEFFORDS. Thank you.

Senator THUNE. Thank you, Senator Jeffords. I appreciate your

asking that question. That is one also that it seems to me at least

we ought to be able to address. There ought to be a way that legislatively we can provide a solution. We would look forward to working with you and Senator Boxer and others to make that happen.

I want to thank the panel for your testimony and for your answers in response to the questions. It has been very insightful. I

would note, too, for the record, that the record will be open for another 5 days for people who want to submit additional testimony

or questions. So with that, we will adjourn.

Thank you.

[Whereupon, at 12:16 p.m., the subcommittee was adjourned.]

[Additional statements submitted for the record follow.]

STATEMENT OF HON. JAMES M. JEFFORDS, U.S. SENATOR FROM THE

STATE OF VERMONT

Mr. Chairman, thank you for holding this hearing.

Superfund has successfully cleaned up thousands of toxic waste sites and protected the health of millions of Americans. Thousands of communities have benefited from short-term removal actions, and remedies have been constructed at about

665 of the most contaminated sites in the Nation.

In addition, fear of Superfund liability has prompted corporate America to minimize its toxic waste generation and take extra care to prevent waste mishandling.

The Nation is healthier as a result.

Yet, our work is not done. Even today, the EPA estimates that one in four Americans live within 3 miles of a Superfund site. Approximately 600 sites remain on the

National Priorities List, with over 100 having ‘‘human exposure not under control.’’

Let me highlight four issues that must be confronted to ensure that the Superfund program is effective in protecting public health.

First, we must fully fund Superfund, which has been on life support in recent

years. In real dollars, the program is operating with about 35 percent less money

than it had in 1993. The result of chronic underfunding is less cleanup. In Vermont

alone, we have three sites that have languished for years on the National Priorities

List due to insufficient funds. In this tight budget climate, the only way to fully

fund the Superfund program is to reinstate the ‘‘polluter pays’’ fees.

Second, we must make sure that companies that handle hazardous substances set

aside enough money to meet their cleanup obligations before they cease operating.

The EPA has yet to issue the regulations required in 1980 to address this problem.

Third, a GAO Report I requested last year found that 83 percent of recent Superfund remedies were designed to leave residual contamination in place. Yet, the report found that controls to minimize future exposure to this contamination were

rarely properly implemented, monitored, or enforced. If the EPA cannot resolve this

problem, cleanups at thousands of sites will need to be revisited.

Finally, the U.S. Supreme Court ruled last year that parties liable under Superfund cannot sue other liable parties for contribution unless they themselves have

been sued by the Government. The result of this ruling is confusion and, I fear,
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fewer voluntary cleanups. A wide range of stakeholders, including major corporations, environmental groups, and the National Governors Association have called on

Congress to overturn this decision. I hope we are able to do so before this Congress

adjourns.

Again, I thank the Chairman for holding this hearing.

STATEMENT OF HON. JOSEPH I. LIEBERMAN, U.S. SENATOR FROM THE

STATE OF CONNECTICUT

Thank you Mr. Chairman. Contaminated industrial sites in this country continue

to harm our children, our families, and our communities. I am disturbed by the

mounting evidence that children are especially vulnerable to suffering brain damage

and malignant disease as a result of exposure to the chemicals still found at these

polluted sites. The Center for Children’s Health and the Environment at the Mount

Sinai School of Medicine points out that 3 to 4 million children and adolescents live

within 1 mile of a Superfund site.

EPA concedes that there is current, actual human exposure to hazardous contaminants at two sites in my State:

In Stratford, CT, wastes containing lead, asbestos, and PCBs are found at 30 locations, including a residential parcel and a community park. Groundwater contaminated with volatile organic compounds flows beneath 120 homes in the town. Indoor

air testing has confirmed probable intrusion of those compounds unto the basements

of those homes.

In Durham, CT, 80 houses abut and surround a contaminated industrial site.

Children live in approximately 30 of those homes. All of the homes, in addition

to three churches and a school, lie within the lateral extent of the plume of contaminated groundwater that extends from the industrial site. All of the buildings in the

area get their water from wells.

Both of these sites are in the Superfund pipeline, and I deeply appreciate the ongoing work of dedicated EPA employees, State employees, and neighborhood activists to minimize harmful exposure and to clean up the waste. But the people doing

that vital work need adequate funding. They are unlikely to get adequate funding

if the entire Superfund program is under-funded. I believe that if the Superfund

program is under-funded, the responsible officials at the U.S. EPA have an obligation to own up to that fact, so Congress can do something about it. Moreover, I believe the obligation is a moral one, because the health of children is at stake.

I am concerned, then, over indications that EPA is not divulging a significant inadequacy in this vital program’s funding. I would like to rely on EPA’s assurances,

because I have tremendous respect for the expertise and dedication of the Agency’s

career employees. But I have seen enough to make me suspect that whenever a senior EPA official tells Congress that Superfund does not need increased funding, career EPA employees shake their heads in disbelief and dismay.

As Resources for the Future points out, annual appropriations for the Superfund

Program have not kept pace with inflation. In fact, the program’s Fiscal Year 2005

appropriation of $1.2 billion represents a 40 percent decrease in purchasing power

when compared with the Fiscal Year 1987 appropriation of $1.4 billions. Meanwhile,

as EPA acknowledges, highly complex and expensive mega-sites make up an increasing percentage of the program’s cleanup burden.

As the tension has increased between reality and EPA’s insistence that Superfund

is adequately funded, EPA management has made less and less in the way of program details available to the public. That secrecy has fostered a suspicion that, in

certain instances, sites have been allowed to progress through the Superfund pipeline even though their cleanup has not met the standards to which we can and must

hold ourselves in order to protect Americans.

So I am proud to cosponsor Senator Boxer’s bill to reinstate the polluter fee,

which is justified and necessary to replenish the Superfund Trust Fund. As a government, we owe that to the children of Stratford, Durham, and countless other

communities across the country.

Thank you, Mr. Chairman.

STATEMENT OF SUSAN PARKER BODINE, ASSISTANT ADMINISTRATOR, OFFICE OF SOLID

WASTE AND EMERGENCY RESPONSE, ENVIRONMENTAL PROTECTION AGENCY

Good morning Mr. Chairman and members of the subcommittee. I am Susan

Bodine, Assistant Administrator of the Office of Solid Waste and Emergency Response, Environmental Protection Agency. Thank you for the opportunity to appear

today to discuss the Superfund program: the tremendous progress that has been
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made, the challenges that remain, and what EPA is doing to address those challenges.

THE SUPERFUND PROGRAM

As the subcommittee knows, the Superfund program was established under the

Comprehensive Environmental Response, Compensation, and Liability Act

(CERCLA or Superfund), which Congress passed in December 1980 to respond to

citizen concerns over Love Canal and other toxic waste sites. Through the Superfund program, the Environmental Protection Agency (EPA) and its partners address

abandoned, accidentally spilled, illegally dumped or intentionally released hazardous substances that pose current or future threats to human health and the environment.

The Superfund program has been very successful in protecting human health and

the environment. To date, EPA and its State and Tribal partners have assessed

46,515 sites; the removal program has conducted 8,948 removals at 6,415 sites; and

1,612 sites have been proposed to, listed on, or deleted from the National Priorities

List (NPL). Of the 1,553 final or deleted sites, 95 percent have begun construction

activity, have been completed, or have been deleted from the NPL. Remedy construction is complete at 970 sites. EPA expects the Superfund program to complete

cleanup construction at an additional 40 Superfund sites in fiscal year 2006.

EPA also has been very successful in leveraging Federal dollars to secure private

party cleanups. In fiscal year 2005, EPA secured commitments from Potentially Responsible Parties (PRPs) to carry out cleanups worth more than $857 million and

to reimburse EPA for more than $248 million in costs. The cumulative value of private party cleanup commitments and cost recovery settlements is more than $24 billion. EPA’s enforcement efforts have allowed the program to focus the Agency’s appropriated funds on sites where PRPs cannot be identified or are unable to pay for

or conduct the cleanup.

To fully understand the status of the Superfund program today, it is important

to understand the process for cleaning up toxic waste sites, as well as how the

Superfund program has evolved over the past 25 years.

The Superfund Pipeline

To achieve protection of human health and the environment, the Superfund program takes each site through a process of investigation, study, and finally cleanup,

commonly referred to as the ‘‘Superfund pipeline.’’

The Superfund cleanup process begins with site discovery or notification to EPA

of possible releases of hazardous substances. Sites are discovered by various parties,

including citizens, but the majority of sites are referred to EPA by State agencies.

Once discovered, sites are prescreened. For example, in 2004, approximately 80 percent of sites were screened out because they posed little or no potential threat to

human health or the environment. The remaining 20 percent of the sites were entered into the Comprehensive Environmental Response, Compensation, and Liability

Information System (CERCLIS). Next, EPA or the State evaluated the potential for

a release of hazardous substances from these sites through a preliminary investigation. This stage screened out 65 percent of the remaining sites. At the sites still remaining, EPA or the State conducted a site assessment. Another 64 percent were

screened out at this stage, and those that were not, received additional assessment

(screening out another 13 percent of the sites that reach this stage). The data from

a site assessment are used to evaluate a site under the Hazard Ranking System

(HRS). Sites that score above 28.5 under this system are eligible for NPL listing

and, if listed, become eligible for remedial funding.

For the sites that are listed on the NPL, EPA or PRPs, then conduct further investigation to determine the most appropriate remedy for the site (called the remedial investigation/feasibility study). This phase culminates with a record of decision,

selecting a remedy for the site, following public notice and comment. EPA, or cooperating PRPs, then design and construct the remedial action. Following completion of

a remedial action, often operation and maintenance activities often must continue.

In addition, at any point during the site investigation process, EPA may conduct

a removal action at a site, to address an emergency situation, an immediate threat

to public health, or to jump-start a remedy with an interim action. For example,

EPA has provided alternative water supplies to more than 2 million people to cutoff

exposure to contaminated water. During the first half of fiscal year 2006, EPA has

conducted removal actions at 82 NPL sites.

EPA also conducts searches for PRPs during this process, and takes action to ensure cleanup work is conducted or paid for by those PRPs, rather than by EPA using

appropriated dollars. Finally, sites that are screened out during the site investiga-
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tion process are considered eligible response sites, which are sites that are eligible

for funding under EPA’s Brownfields Program.

Superfund Program’s Early Years

In the 1980s, Superfund was a new program that was just getting started. EPA

issued regulations to implement the Superfund program in July 1982, by revising

the National Contingency Plan, which was first promulgated under section 311 of

the Clean Water Act, to incorporate the Superfund program requirements. In September 1983, EPA promulgated the first National Priorities List (NPL), identifying

406 sites as national priorities among the known releases or threatened releases of

hazardous substances, pollutants, or contaminants throughout the United States.

From listing a site on the NPL to the completion of the constructing a remedy,

the cleanup process takes more than 10 years, on average. As is discussed later,

simple sites may take less time, but more complex sites take considerably longer.

As a result, during the early days of the Superfund program, most of the activity

understandably centered on the investigation and study phase of the Superfund

pipeline.

A Maturing Program

Progress continued throughout the 1980s. However, very few sites were cleaned

up. In fact, before 1991, remedies were completed at only 49 sites, 16 of which required no construction. As a result, there was a public perception that the Superfund program was addressing sites too slowly. EPA addressed these issues with two

initiatives. First, to leverage Federal dollars and increase the number of sites being

cleaned up, EPA adopted an ‘‘enforcement first’’ policy in 1991 to require PRPs to

perform cleanups, rather than using appropriated dollars and seeking cost recovery.

Second, to help explain to the public the progress that the Superfund program had

made, in 1993 EPA created the category called ‘‘construction completion,’’ and began

tracking and reporting the number of Superfund sites where the physical construction of the cleanup remedy was finished.

During the 1990s, many sites that had been placed on the NPL in the 1980s finally moved through the Superfund pipeline. Remedial investigations and feasibility

studies were completed. Records of decision selecting remedies were issued. Cleanup

remedies were constructed. Between 1991 and 1995, 297 additional sites reached

construction completion (33 of which were determined not to need construction).

Despite this progress, the program continued to be criticized that the pace of

cleanup was too slow. In response, EPA began aggressively managing the program

to achieve construction completions. Between 1996 and 2000, 411 sites achieved the

construction completion stage of the pipeline (16 of which were determined not to

need construction). However, 162 of these sites cost EPA less than $1 million per

site to achieve construction completion (including both fund lead and PRP lead

sites). An additional 165 cost EPA less than $5 million. Thus, while the program

was achieving on average 82 construction completions per year during this timeframe, the vast majority of those sites were smaller, low cost sites, or were PRP

sites with low EPA oversight costs.

Between 2001 and 2005, an additional 209 sites have achieved the construction

completion phase. If one looked only at construction completions, one could conclude

that the pace of cleanup in this country declined. This would be untrue. While the

number of low cost sites reaching construction completion declined, the number of

costly and complex sites that have reached construction completion has increased.

Moreover, cleanup has progressed significantly at the remaining costly, complex

sites.

In addition, cleanup of low cost sites is continuing, just not as often through listing on the NPL. During the late 1990s, a fundamental shift in how sites are cleaned

up occurred as a result of the development and growth of State cleanup programs

and State brownfields programs. Today, less costly and less complex sites, and sites

with cooperative PRPs, are much more likely to be addressed through a State cleanup or voluntary cleanup program or a State brownfields program than through the

Federal Superfund program.

This trend was not unexpected. In fact, in November 1998, the General Accountability Office (GAO, then called the General Accounting Office) surveyed States and

EPA regions regarding all sites that were then in CERCLIS and determined that,

of the 3036 sites in the active CERCLIS data base in 1997, EPA or a State program

identified only 232 sites as potential candidates for NPL listing. The actual number

of sites listed after 1997 is 172 and an additional 59 sites have been proposed to

the NPL, totaling 231.

Working with our State partners, EPA Regions now try to identify the most appropriate program to address sites that require cleanup. This may be a State pro-
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gram; it may be the Resource Conservation and Recovery Act (RCRA) corrective action program; it may be the Superfund removal program or the Superfund remedial

program and listing on the NPL. As a result, cleanup is continuing through a variety of programs and the NPL has become more of a list of sites that need Federal

funding or Federal expertise than a list of all uncontrolled toxic waste sites.

The NPL Universe Today

At this point in the history of the Superfund program, the universe of sites not

yet complete and the type of sites being listed on the NPL are very different from

the universe of sites on the list 10 years ago. EPA has completed work at many low

cost sites that were listed in the past, and new sites in this category are being addressed through other programs. The remaining sites are more complex.

As can be expected given the Superfund pipeline, 893 of the 970 sites that have

reached construction completion to date were listed before 1991. At 61 percent of

these sites, only one, or in some cases no remedy required construction. In Superfund parlance, these sites had only one ‘‘operable unit’’ (OU).

It is important to remember that many of the sites that have not reached the construction completion stage have been part of the Superfund program for many years,

but are large, complex sites that simply take more time to address. Of the 583 sites

that have not reached the construction completion state, 318 (54 percent) also were

listed before 1991. That means the Superfund program has been addressing these

sites for over 15 years, making progress while dealing with technically challenging

issues. 367 (63 percent) of the remaining 583 sites have more than one OU. 189 of

the remaining 583 sites have been identified as sites where the remedy costs will

have or have the potential to exceed $50 million (32 percent). In Superfund parlance, these are called ‘‘mega-sites.’’

Management of Current Superfund Program

Given the complexity of many sites that remain on the NPL, EPA must carefully

manage the program. First, management attention and resources are given to the

sites that present the greatest risk. Second, actions are taken to protect human

health and the environment while remedies to achieve long-term protection are developed and constructed. Third, to ensure efficiency in contracting, the largest sites

are managed as long-term construction projects. Fourth, to turn a community blight

into a community asset, EPA looks for land revitalization opportunities when developing remedies. Fifth, with so many sites reaching the construction completion

stage, attention is now focused on the achievement and maintenance of long-term

protection at these sites. Finally, EPA is taking steps to ensure that all Superfund

resources are being put to their highest and best use.

Prioritizing Sites Based on Risk

To help EPA manage its funding decisions in a risk-based manner, sites that are

ready to begin construction and will be paid for using EPA’s appropriated funding

are subject to a rigorous prioritization process. EPA’s National Risk-Based Priority

Panel reviews new cleanup construction projects as they become ready for EPA

funding. The Panel prioritizes the projects based on three factors: protection of

human health, protection from significant environmental threats, and potential

threats based upon site conditions at the time of review. A number of factors are

then used to weigh funding priorities among the sites including: human exposure

risk, contaminant characteristics and stability, significant environmental risk, and

program management considerations. The Panel is composed of national EPA

Superfund program experts from both Regional and Headquarters offices.

Addressing Immediate Risks Through Interim Actions

Even though selection, design and construction of what are often multiple remedies at a site may take many years, EPA can and does take interim actions to address immediate risks to human health. EPA has taken removal actions at 58 percent of the sites listed on the NPL. For example, EPA did not wait to list the Omaha

Lead site on the NPL before taking action to reduce the risk posed to residential

communities. EPA started cleanup work in 1999 using Superfund Removal authorities. The site was listed on the NPL in 2003, and using an expedited interim remedy

process, is on schedule to have completed cleanups of more than 2000 residential

yards by the end of fiscal year 2006.

EPA is developing tools to identify and improve the management of risks at ongoing NPL cleanups. Beginning in 2002, EPA applied the Human Exposure Under

Control Environmental Indicator to document the interim progress made toward

achieving long-term human health protection by controlling unacceptable human exposures at NPL sites. This measure tracks the status of whether human health exposures are controlled under current site use. EPA considers human exposure to be
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not under control if, under current site use, there are complete pathways for human

exposure to contaminants at levels that present an unacceptable risk. EPA does not

require documentation of actual exposure when applying this measure. A complete

exposure pathway is sufficient.

As the subcommittee knows, the list of sites where human exposure is not under

control is dynamic. Over time, sites are removed and new sites are added, depending on changed site conditions or new information. Since becoming Assistant Administrator, I have made it a priority to improve the quality of the data supporting this

environmental indicator so that it can be used to prioritize and manage the program.

Managing ‘‘Mega-Sites’’

The largest and most complex Superfund sites must be managed as multi-year

construction projects. This is particularly true of the ‘‘mega-sites’’ with estimated

costs over $50 million. EPA funded ‘‘mega-sites’’ consume the majority of our resources. In fiscal year 2005, approximately 50 percent of the Superfund obligations

for long-term, on-going cleanup work were committed to just 11 sites. The Agency

expects to have a similar situation this year. For this reason, EPA has developed

long-term funding plans for a number of complex, costly, sites. These funding plans

are based on the construction plans for the sites, and allow EPA to enter into contracts that provide for efficient use of resources.

Land Revitalization

The land revitalization initiative, launched in April 2003, includes all of EPA’s

cleanup programs as well as partners at all levels of government and in the private

and non-profit sectors. The goal of land revitalization is to restore our Nation’s contaminated land resources and enable America’s communities to safely return these

properties to beneficial economic, ecological, and societal uses. EPA is ensuring that

cleanup programs protect public health, welfare, and the environment; and also ensuring that the anticipated future uses of these lands are fully considered in cleanup

decisions.

Experience has taught us that one of the best ways to clean up contaminated sites

and to address blighted properties in communities is to expressly consider the future

uses of the land. The country has accepted the economic and ecological importance

of recycling various consumer products—and our understanding of sound resource

management must now also embrace the recycling of contaminated properties.

Post-Construction Completion Strategy

With so many sites now at the construction completion stage, the Superfund program also must focus attention and resources to address post-construction activities

to ensure that remedies remain protective over the long term and sites can be returned to productive use.

In October 2005, to ensure that completed sites remain protective of human heath

and the environment, EPA published its Post Construction Completion Strategy.

The strategy was developed to improve site operations and maintenance, remedy

performance tracking, institutional control implementation and tracking, and reducing barriers to beneficial site reuse. Under this strategy, EPA is ensuring that 5-

year reviews are completed and any discrepancies identified in the reviews are acted

upon. EPA also is developing an Institutional Control Tracking System, to document

and make public the institutional controls that are needed to ensure long-term protectiveness.

In addition, EPA is developing a new post-construction completion measure for

the Superfund program as part of its fiscal year 2006–2011 Strategic Plan under

the Government Performance and Results Act. This new measure will track and target the number of sites that have been made ‘‘ready for reuse’’ by the Superfund

program. These are sites that have achieved the cleanup goals and have implemented the institutional controls that ensure long-term protection and allow reuse

of land.

EPA already is collecting and will continue to collect and report data on the number of acres that are ‘‘ready for reuse’’ at Superfund sites, even if the entire site

is not construction complete, and is working on developing similar information for

all of EPA’s cleanup programs. Both the new GPRA measure and the ongoing information on acres made ‘‘ready for reuse’’ demonstrate how cleaning up waste sites

to protect human health and the environment can produce the accompanying benefit

of returning properties to beneficial reuse.
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Managing Superfund Resources

EPA is undertaking a number of actions to ensure that Superfund resources are

not expended on unnecessary activities and are available to carry out site cleanup

work. For example, EPA has:

• Initiated a workforce analysis to determine if staff resources should be reallocated

• Started benchmarking studies of EPA performance

• Shared best practices among the EPA Regions

• Established the Contaminated Sediments Technical Advisory Group, comprised

of Agency experts, to provide technical support to Regions with potentially high cost

contaminated sediment sites

• Increased the number of sites addressed by the Remedy Review Board, which

reviews high cost cleanup remedies, by lowering the threshold cost of remedies that

will be reviewed from $30 million to $25 million

• Continued to optimize long-term groundwater remedies in order to reduce operating costs and restore potential drinking water sources more efficiently

• Aggressively deobligated funds from contracts, grants, cooperative agreements

and interagency agreements, resulting in more than $600 million for new cleanup

activities over the past five fiscal years.

These efforts are, in part, a result of several studies, including an internal review

of the Superfund program, known as the 120-Day Study, which identified opportunities for the Agency to put its resources to better use.

EMERGENCY RESPONSE

EPA’s Emergency Response activities are another facet of the Superfund program.

The Emergency Response program provides national leadership to prevent, prepare

for, and respond to human health and environmental emergencies, including terrorist events. EPA7s Superfund Emergency Response program was actively involved

in the response to the events of 9/11 and the subsequent anthrax attacks, and, most

recently, in the response to Hurricanes Katrina and Rita.

Beginning on August 25, 2005, to prepare for Hurricane Katrina, EPA deployed

personnel to the Federal Emergency Management Agency (FEMA) National Response Coordination Center and sent On-Scene Coordinators (OSCs) to the Florida,

Louisiana, Alabama and Mississippi Emergency Operations Centers. The OSC is the

Federal official responsible for monitoring or directing responses to all oil spills and

hazardous substance releases reported to the Federal Government. EPA sent additional personnel to the affected areas as soon as travel into the region was possible.

In anticipation of Hurricane Rita, EPA also deployed response experts to the multiagency Regional Response Coordination Center in Denton, TX on September 20.

Nearly 400 EPA staff and contractors are continuing to assist with recovery in the

Gulf Coast. EPA’s hurricane response related activities are being funded by FEMA

under a mission assignment pursuant to the President’s disaster declarations for the

Gulf Coast.

EPA is the lead Federal Agency under the National Response Plan for Emergency

Support Function (ESF) No. 10, which addresses oil and hazardous materials, and

works with other agencies to provide support for a number of other Emergency Support Functions, including ESF No. 3, which addresses Public Works and Engineering. Specifically, EPA’s responsibilities include preventing, minimizing, or mitigating threats to public health, welfare, or the environment caused by the actual

or potential releases of hazardous materials; testing the quality of flood waters, sediments, and air; and assisting with the restoration of the drinking and waste water

infrastructure. Also under ESF No. 3, the Agency works with the U.S. Army Corps

of Engineers to address final disposition of the large volumes of debris from homes,

buildings and other structures damaged by Hurricane Katrina. EPA, in coordination

with the States, is providing information to both workers and the public about sampling test results, as well as assisting communities with debris disposal and hazardous waste issues.

CONCLUSION

Administrator Johnson and the Bush administration are fully committed to Superfund’s mission, protecting human health and the environment by cleaning up our

Nation’s worst toxic waste sites. The Superfund program has produced significant

accomplishments and EPA is continuing its efforts to manage the program efficiently and effectively in order to protect human health and the environment, and

provide opportunities for reuse and redevelopment to communities across the country.
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*The views expressed herein are those of the author only, and do not represent the views of

the staff, management, or Board of Directors of Resources for the Future.

STATEMENT OF KATHERINE N. PROBST,* SENIOR FELLOW AND DIRECTOR, RISK, RESOURCE, AND ENVIRONMENTAL MANAGEMENT, RESOURCES FOR THE FUTURE

Mr. Chairman and distinguished members of the subcommittee, thank you for inviting me to testify before you today about the critical issues facing the Superfund

program. I am a Senior Fellow at Resources for the Future (RFF) and the director

of RFF’s Risk, Resource, and Environmental Management Division.

RFF is an independent, nonprofit 501 (c)(3) research and educational organization

located here in Washington, DC. For over 50 years, researchers at RFF have been

conducting research on a wide variety of issues related to energy, natural resources,

and the environment. RFF does not lobby and does not take positions on legislation

or regulations as an organization. The views I present today are mine alone, and

do not reflect the opinions of the staff, management, or Board of Directors of Resources for the Future. I will try to keep my oral remarks brief, and I would appreciate it if you would include my full written statement in the record.

For more than 15 years, I have conducted research on issues related to the evaluation, management, and improvement of the Superfund program. I was the lead

author of a Report to Congress, issued by RFF in July of 2001, titled Superfund’s

Future: What Will It Cost? which included estimates of the funding that would be

needed by EPA from fiscal year 2000 through fiscal year 2009 to fully implement

the program, assuming no change in the program’s policies or regulations. I was

also the lead author of a more recent report, Success for Superfund: A New Approach for Keeping Score, published by RFF in April 2004. In this report, I recommended that EPA develop a one-page ‘‘report card’’ for each site on the National

Priorities List (NPL) that would include key information not only on site progress,

but also on major site contaminants and other key site attributes. I have also directed a number of studies about other aspects of the Superfund program as well

as studies of ways to improve the cleanup of sites in the nuclear weapons complex,

which, as you know, are the responsibility of the Department of Energy.

In all of theses studies, in addition to addressing key policy issues, I have made

specific suggestions for improving the data and management systems used by the

Superfund program, an issue near and dear to my heart.

The subcommittee asked for comments regarding oversight of the Superfund program. I would like to first very briefly summarize the status of the program as it

relates to progress at sites on the NPL and then focus on four key issues:

1. Cleanup funding;

2. Monitoring and enforcing institutional controls;

3. Improved data and public information; and

4. The need for independent evaluation.

A SNAPSHOT OF CLEANUP AT NPL SITES

After a site is listed on the NPL, each site is either addressed as a whole or divided into multiple projects. Each major project goes through a number of steps: the

site is characterized, alternative remedies are evaluated, a remedy is selected, and

then a detailed remedy design is prepared. After that, the site (or project) enters

what is called the ‘‘construction’’ phase, which is the actual implementation of the

remedy. When all remedies at a site (some sites have multiple remedies) have been

fully implemented—that is, when all the construction and engineering work is

done—the site is deemed ‘‘construction complete.’’ Construction complete is one of

EPA’s major milestones for reporting individual site progress, and the progress of

the program as a whole. It is worth noting that just because a site is categorized

as ‘‘construction complete’’ does not mean that the cleanup goals at the site have

been achieved. And, as discussed in more detail later in my testimony, at many sites

where hazardous substances are left on site at levels that preclude unrestricted use

of the site, restrictions on land, water, or groundwater use—referred to as ‘‘institutional controls’’—are required to ensure that people do not come into contact with

contamination remaining at the site.

As of the end of May 2006, there were 1,244 final sites on the NPL (this number

does not include ‘‘proposed’’ NPL sites, nor sites that were once final NPL sites and

have since been formally ‘‘deleted’’ from the NPL.) Just over half of these sites (665)

are construction complete. That is the good news. The bad news is that the remaining 579 sites—or 47 percent—are not yet construction complete, which means that

the cost of site studies and remedies lies in the future and that substantial additional funds will need to be appropriated to complete cleanup activities at many of

these sites. Most of these sites are in the construction stage, but there are a large
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number where studies are underway or have not yet begun, meaning that a sizable

number of theses sites are just beginning to make their way through the ‘‘Superfund

pipeline.’’

According to information available on EPA’s Superfund Web site, a large number

of these sites still present some kind of current risk to human health or the environment. Of the 579 final NPL sites that are not construction complete, there are:

128 sites (22 percent) where human exposure is not under control, and

192 sites (33 percent) where groundwater migration is not under control.

Clearly, there is not enough information on the Superfund Web site (a subject I

return to later in my testimony) to know exactly what this information means and

how large the risks at these sites are, but it does suggest that there is more critical

work that needs to be done, and in an expedited manner.

Although many would like to think that after 25 years of the program’s existence,

we are nearing the end of the need for the Superfund program, this appears to be

wishful thinking. While fewer sites have been listed in recent years than in the heyday of the program, some of the new sites being added are large and complex, and

there are still a large number of ‘‘old’’ sites yet unfinished. Current and future NPL

sites need cleanup, attention, funding, and EPA and congressional oversight.

Cleanup Funding: Coming Clean about What Lies Ahead

Since 1987, Superfund’s annual appropriations have fluctuated from a low of $1.1 billion in fiscal year 1988 to a high of $1.6 billion in FYs 1991 and 1992, as shown

in the figure below. In recent years, EPA Superfund appropriations have been relatively constant at just under $1.3 billion a year, at least in what are referred to

as ‘‘nominal dollars.’’ In constant 1987 dollars, however, the Superfund’s program

spending power has decreased substantially since 1987, as also shown in the figure

below. The program’s fiscal year 2005 appropriations of $1.2 billion are the equivalent of $820 million in constant 1987 dollars—a 40 percent decrease in purchasing

power when compared with actual fiscal year 1987 appropriations of $1.4 billion.

Thus, the Superfund program’s real purchasing power has decreased dramatically

at the same time as large, complex, and expensive sites—often referred to as ‘‘mega

sites’’ make up an increasing proportion of the program’s workload. It should come

as no surprise that, as predicted in the July 2001 RFF Report to Congress—and documented by many subsequent reports since then—there is a shortfall in funds needed for cleanup.

Over the past few years, the U.S. Government Accountability Office and the EPA

Office of Inspector General have clearly documented that the Superfund program

suffers from a funding shortfall and that EPA has had to delay cleanup actions at

NPL sites as a result. One solution to this problem, of course, is to increase annual

funding for the Superfund program. In fact, in the past 2 years, the Administration

has included in the President’s budget a request (although not with much force) for

an additional $150 million targeted specifically for cleanup actions at NPL sites.
63

This funding request most likely represents the minimum, not the maximum shortfall, based on the work of RFF and other independent organizations. Any funding

increase by Congress should be targeted specifically to clean up related activities.

If the needed funding is not forthcoming, however, it is critical that EPA ‘‘come

clean’’ about the implications of this shortfall on the future pace of cleanup, and on

progress at individual NPL sites. This will only happen if Congress, either in oversight hearings such as this one, or as part of the annual appropriations process, requires that EPA identify on a site-by-site basis the specific funding shortfall for each

site on the NPL, and specify which sites will be delayed—and by how much—if

funding is not increased over current appropriations.

In addition, Congress should ask EPA, on an annual basis, to present to this subcommittee and to the relevant appropriations committees how much funding would

be needed to ‘‘fully fund’’ cleanup, assuming no change in current cleanup standards

and policies. This is exactly the charge that was given to RFF in the conference report that accompanied the fiscal year 2000 VA-HUD independent agencies appropriations bill. RFF was asked to conduct this study by congressional staff because

it was felt that EPA did not have the credibility to do this work.

If there is still concern about EPA’s credibility, the subcommittee could require

the report be subject to independent external peer review (on an expedited basis)

at all stages of the project (conceptual, first set of results, final results). This would

assure that the analysis and assumptions are sound. Conversely, Congress could

again request that the Agency contract with an independent third-party for this information. In addition, Congress should require that EPA develop a reliable model

for estimating future cleanup and other related costs and update this model annually. In fact, EPA had just such a model, called the ‘‘outyear liability model,’’ for

many years, but it is now defunct. It is critical for effective congressional oversight

that EPA, and Congress, know the estimated future costs of the Superfund program.

In this era of ever-scarcer Federal dollars, the Superfund program also must take

a hard look at its own budget, identify areas that are not very productive, and reprogram funds wherever possible to activities that are directly related to clean up.

This does not mean cutting the enforcement program, but it does mean examining

the myriad initiatives that have sprouted over the years to assess which ones are

truly worthwhile. These include everything from efforts to focus on redevelopment

of Superfund sites to efforts to stimulate new technologies for cleanup. While almost

all the initiatives sound good, it is critical that their benefits and costs be evaluated

to make sure that the best use is being made of scarce Superfund dollars. While

it is unlikely that reprogramming from existing programs and initiatives will release enough funds to address the cleanup shortfall, it is important that the program be willing to undertake this kind of self-reflection and put funds where they

are most needed. There is little appetite in many quarters for increased cleanup

funding until EPA takes a hard look at where current funds are going and makes

needed adjustments.

Monitoring and Enforcing Institutional Controls: Let’s Get On With It!

Since the mid-1990s, researchers from RFF, the Environmental Law Institute

(ELI), and the University of Tennessee, among others, have published a number of

studies documenting the need for closer monitoring and more active enforcement of

institutional controls at Superfund sites. Many in government, academia, and the

private sector have written about these issues as well. What has actually been accomplished in the past 10 years? Well, a lot and not much.

In some ways, a lot has happened regarding institutional controls (now fondly referred to as ‘‘ICs’’). A decade ago, few people in the cleanup field even knew what

institutional controls were, and even fewer were concerned about them. Now there

are frequent ICs meetings and conferences, and various Web sites and other Internet resources devoted to ICs, land use controls, long-term stewardship, call it what

you will. More importantly, after many long meetings and discussions, a group of

experts developed the Uniform Environmental Covenants Act (UECA), which has

been enacted or introduced in more than a dozen States. This uniform law, once enacted, ensures that States would be able to implement and enforce durable environmental covenants to restrict land use. However, UECA will do nothing to solve the

institutional problem of assigning responsibility to a specific entity to ensure that

ICs are monitored regularly, or to clarify who will have the responsibility for bringing enforcement actions when needed.

We appear to be no closer to what is really needed: reliable information on ICs

for all NPL sites and annual on-the-ground inspections and enforcement of institutional controls. The Superfund program still does not have a consistent and reliable

approach to tracking and monitoring ICs, which is critical to the protection of public

health and the environment at contaminated sites. More and more contaminated
64

site remedies rely on ICs to ensure protection of public health and environment.

EPA must make monitoring and enforcement of ICs a top priority.

Ironically, the most recent major report on ICs by the U.S. Government Accountability Office (Hazardous Waste Sites: Improved Effectiveness of Controls at Sites

Could Better Protect the Public, GAO–05–163, January 28, 2005) reached many of

the same conclusions as the many prior studies conduced in the 1990s by RFF, ELI,

and others. GAO concluded that: • Institutional controls are increasingly part of Superfund remedies and their effective implementation is critical in ensuring protection of public health, that is, to

limit exposure to contamination that remains onsite even after a remedy has been

implemented. • There is often great uncertainty regarding what level of government—local,

State, or Federal—is responsible for monitoring these restrictions on land, water,

and groundwater use. And, of course, without consistent monitoring, we don’t really

know if ICs are in place and working. • Due to the nature of institutional controls, it is often not clear what organization has the authority to enforce institutional controls. • Currently available information suggests that for a non-trivial number of sites,

the institutional controls required to ensure a remedy is protective are not in fact

being fully implemented.

The real question is, why isn’t EPA moving forward aggressively to establish a

robust monitoring and enforcement program now for ICs at NPL sites, which is

what is really needed?

So far, EPA’s main response has been to focus its resources on developing a complex (and much-delayed) data base to track institutional controls and to issue a variety of guidance documents. While these are positive actions, it is unclear whether

we are any closer to having reliable information on ICs at all NPL sites. It is taking

many years and untold dollars to get the data base up and running, and the guidance documents suggest that EPA will rely on 5-year reviews to monitor implementation of ICs.

Five years is a long time interval between IC inspections—to long a time—when

the issue is assuring compliance with land use and other restrictions needed to protect public health. While guidance documents are nice, and EPA can get them

issued without going through the Office of Management and Budget (OMB) and the

White House, the reality is that they ‘‘do not have the force of law.’’

Simply put, institutional controls ‘‘work’’’ only when people know about them and

comply with them. Having restrictions on the use of land, water, and groundwater

only on paper is meaningless, unless these controls are actively enforced and monitored. And, if the controls are not enforced, the public can be at risk.

What then is to be done?

Ideally, EPA would make institutional controls part of the regulatory framework

governing Superfund cleanups. This would require amending the National Oil and

Hazardous Substances Pollution Contingency Plan (NCP) to address how institutional controls should be developed, monitored, and enforced. When the NCP was

written, EPA’s policy analysts (and most of us on the outside) were focused on getting remedies selected at Superfund sites. The NCP lays out very detailed requirements, including provisions for public comment, on the process that results in the

selection of a site remedy. However, the NCP is quite sparse in regard to regulatory

requirements after that point. In fact, even though ICs usually are not fully developed until after a remedy is selected—typically as part of a settlement agreement—

there is no provision for public input on ICs, nor is EPA required to maintain an

administrative record after a remedy is chosen.

Given that ICs are a critical part of the effectiveness of many remedies, there

should be clear and consistent requirements for how ICs are selected, monitored,

and enforced that have the force of law. No matter how difficult it might be to get

the NCP amended, we have been operating with the band-aid of IC guidance documents for long enough.

The recommendations I am making today are identical to those included in a 1997

RFF report Linking Land Use and Superfund Cleanups that I co-authored with colleagues Bob Hersh, Kris Wernstedt and Jan Mazurek:

• EPA should revise the National Contingency Plan (NCP)—the regulatory blueprint for the Superfund program—to address the role of land use in remedy selection, including incorporating the development of institutional controls into the formal remedy selection process.

• EPA should, in consultation with State and local governments, develop a strategy (for eventual codification in the NCP) to ensure effective long-term regulatory

oversight of Superfund sites where contamination remains at levels that present a

risk to public health after the remedy has been constructed and implemented.
65

Sadly, these recommendations are just as relevant today as when we made them

9 years ago. If EPA does not move forward to amend the NCP, EPA can still take

action right now to implement a simple and streamlined ICs tracking system that

would give the Agency the information it needs to find out if ICs are being complied

with, and, if they are not, to take the necessary follow-up action. There is absolutely

nothing that precludes EPA from doing this; all that is needed is senior management direction and attention.

The first step is to implement a simple and straightforward ICs tracking and compliance data base, available to all on EPA’s web site. We have ample evidence that

the more complex the data base, the less likely it is that the data in it will be reliable. The old adage ‘‘keep it simple stupid’’ is still apt. After many years, and many

hours of work by EPA, consultants, and the input of many experts, we still don’t

have a workable ICs tracking system that is up and running and available to the

public.

It is time, as economists are fond of saying, to forget about ‘‘sunk costs’’ and create

a relatively simple ICs tracking system right now. Such a tracking system could be

up and running in 3 to 6 months if it has the backing of senior management in the

Office of Solid Waste and Emergency Response.

To jump-start this process, I lay out below the kind of information that should

be collected by EPA for each site on the NPL that requires institutional controls.

This information should be accessible on the EPA Web site.

• What is the legal basis for the IC?

• What specific kind of control is required?

• Who is responsible for implementing the IC?

• Has the IC been implemented, and if not, why?

• Who is responsible for monitoring the IC?

• When was the last time someone from EPA, the State, or one of their contractors went to the site to see if the IC is being complied with?

• If it appears that the IC is not being implemented as required, what steps have

been taken to remedy the situation?

• Is specific information about the nature of the IC requirement and who to call

if the IC is not being complied with for individual sites readily available on all EPA

Web sites?

This is just a preliminary list of information that needs to be included in a simple

ICs tracking system. EPA should, of course, review and refine this set of questions

and get input from both internal and external experts. That said, I strongly recommend a very streamlined data base with perhaps 10 to 15 pieces of critical information that would give EPA, and the public, enough information to know what

kinds of ICs are required at each site and if they have been fully implemented.

It is true my list of questions will not tell you everything you ever wanted to know

about ICs at a given site, but it will give EPA management and the concerned public enough information to know if there is a problem that requires attention. And,

this kind of data base would be relatively quick and inexpensive to develop, and

easy to maintain. Perhaps most importantly, the questions are simple enough that

it should be possible to have highly reliable information that can be trusted. While

other more sophisticated information may be required in the future, this information should have been collected years ago, and we need to start someplace.

After this initial assessment is completed, EPA needs to develop an inspection

strategy to ensure that ICs are monitored at least once a year and are implemented

as required. The safety of those living near these sites depends on this, and it is

hard to see what could be more important for the vast majority of NPL sites where

some contamination remains on site, even after cleanup activities have been fully

implemented. At these sites, ICs can be as important in protecting public health as

the engineering remedy itself. It would be foolish to spend tens or hundreds of millions of dollars on a site remedy, and then skimp on the monitoring and enforcement

of institutional controls. The Love Canal site—which in many ways ‘‘begat’’ the

Superfund program—is the proverbial poster child for the failure of institutional

controls. EPA has a choice to make—it can try to prevent future ‘‘Love Canals’’ by

monitoring and enforcing ICs, or it can create an environment where the next Love

Canal is just waiting to happen.

Improved Data and Public Information

Getting information on the progress, contamination, costs, and health risks of

NPL sites is still a challenge. If you log on to the main Superfund site

(www.epa.gov/superfund) and click on ‘‘sites’’ it is not readily apparent where to go

to get different kinds of information on individual sites among the many choices,

nor is it clear where to go to get the most ‘‘user-friendly’’ information. There is in

fact some good information to be found on individual sites, but one has to be a
66

1This report can be found at http://www.rff.org/documents/RFF–RPT–Superfund Success.pdf

Superfund maven to know what is on the Superfund Web site, and how to find it.

In addition, it is quite difficult to obtain information on overall program progress,

that is, the number of sites that have institutional controls, or where current sites

are in the ‘‘Superfund pipeline.’’

In addition, there are still major questions about the quality of much of the information in the Superfund program’s two major systems—CERCLIS, which is the

main Superfund data base, and IFMS, the Agency’s financial management system.

Both systems suffer from too many individual codes that are inconsistently applied,

and the way the systems are organized is anything but ‘‘user friendly.’’ It is a wellknown fact that individual Superfund offices have created their own data bases to

serve their needs, leading to multiple systems with multiple data, and, one can only

assume, increased total cost to the program. These systems need a major overhaul,

not tweaking. They also have many substantive gaps. Ideally, senior management

in EPA should be able to access, on their own personal computer, up-to-date information on each and every NPL site, including future funding needs, when various

site actions will be started and completed, the status of ICs, the major risks at the

site, etc.

Overall, the Superfund Web site is extremely difficult to navigate. In this day and

age, when so many people go ‘‘on-line’’ to get information, the Superfund Web site,

especially as it relates to site-specific information, could be greatly improved. More

attention should be paid to describing the various sources of information and to improving the graphics and user-interface of the site. In our report Success for Superfund1, my colleague Diane Sherman and I recommended a one-page report card for

all NPL sites, and a longer ‘‘NPL site scorecard.’’ While EPA has improved the information that one can get from the main EPA Web site in recent years, it is still difficult to obtain basic information about the timing of future site actions, and what

exposure pathways may be of concern.

Creating better internal systems and a more accessible and ‘‘user-friendly’’ Superfund Web site should be a top priority. That said, it is critical that any such effort

have very strong management from EPA so that the systems created are simple,

and the data is reliable. This will require working with EPA’s regional offices, who

are on the front line in terms of site response activities—and making sure that

whatever consultant is charged with this task does not create a complex system that

will only serve to ensure them full future employment for the rest of their careers.

The need for independent evaluation: The Superfund program should develop and

fund a 3- to 5-year research and evaluation strategy.

Finally, the Superfund program—like many Federal programs—needs to do a better job of evaluating itself. Although there have been many mandates in recent

years—requirements under GPRA, the PART analyses led by OMB, and others—to

stimulate more and better program evaluation, this new culture seems not to have

taken hold yet in Superfund.

The first task is for the program to create the policy and analytic capability internally to create a 3- to 5-year research and evaluation strategy, and to set aside

funds to implement it. Some of these projects can and should be done internally (by

EPA staff or their contractors); others studies must be done independently—through

contracts assuring contractor independence or requests for proposals to the academic and nonprofit community. All of the work should be subject to some form of

external peer review to assure credibility.

The goal of program evaluation should be to improve implementation in the future

and to assure that funds are being spent in the most efficient and cost-effective

fashion. With Superfund, everyone has an anecdote about what works, what doesn’t,

and what the benefits and costs are. All of these elements need to be part of a

broader, credible assessment of the program’s accomplishments—not simply as a

‘‘communications’’ initiative.

I think it is fair to say that almost every other program in EPA has a more robust

capability for policy and economic analysis than does Superfund. I suspect this is

because the Superfund program has never had to comply with the requirements of

the various executive orders requiring regulatory impact analyses. Superfund, however, still does not have a core policy analytic capability charged with independent

analysis and evaluation. A group needs to be created within OSWER that has the

charge of looking at the entire program, including enforcement, as that is so crucial

to Superfund, and the group needs to be protected from day-to-day fire drills and

have resources to fund external research and analysis.

Once such a critical mass is created, the next step is to develop and implement

a 3- to 5-year strategy for independent research and evaluation of the Superfund
67

program and to set aside funds for this purpose on an annual basis. This should

be done with input from external experts, as well as with input from senior EPA

management. Even though the program is short of funds for cleanup, good evaluations should help the program save money and be more effective in the long term.

Needless to say, I think it is very important that the results of these studies be

made public.

What kinds of questions would be included in such a research strategy? Below are

some suggestions. These are just some of the many questions that, if asked, might

lead to improvements in the Superfund program. For a program that costs the

American taxpayer $1.3 billion a year, and that has been in existence for over 25

years, we should know the answers to some of these questions.

• Why does it take so long to reach ‘‘construction complete’’ at some sites? Are

there patterns to the causes of delay that could be addressed to speed cleanup?

• Why are there still so many sites where human exposure is still not under control?

• Which remedies have been most effective, and which have not, for particular

kinds of contamination?

• How accurate have EPA’s initial estimates been of site costs and time to complete cleanup? What steps could be taken to improve both estimates?

• How much are responsible parties paying for cleanup actions? How does this

compare to initial cost estimates?

• What makes a ‘‘mega site’’ a mega site? What drives the high costs at these

sites?

• Are institutional controls being implemented? If not, why?

• What, conceptually, are the benefits and costs of Superfund cleanups, and do

the data and methodologies exist to actually estimate them?

• What is the quality of site studies and remedy designs? Are there changes to

these processes that would both improve the quality of these efforts, and decrease

program costs?

• Are all Superfund moneys actually going to Superfund-related activities, or are

some funds and staff siphoned off to other programs and EPA initiatives?

• How do sites listed in recent years compare to those listed in earlier years in

terms of complexity, costs, and pace of cleanup?

• What are the findings of the 5-year reviews, in terms of whether site remedies

are being implemented as designed and whether cleanup goals are being met?

In closing, it is clear from even a brief look at the status of sites on the NPL and

the fact that new sites continue to be added each year that the Superfund program

is going to be with us for some time yet. Thus, it is worthwhile to invest in improving current data and management systems, and to conduct independent evaluations

of key aspects of the program in order to make improvements in how the program

is managed and implemented. These investments will pay off by leading to a more

efficient program, and ultimately, allow the Agency to do more with the funds it

has.

EPA has a responsibility to people living on and near contaminated sites to ‘‘come

clean’’ about what has been done at these sites, what contamination and health concerns remain at ‘‘their’’ sites, and when they can expect each site to be cleaned up.

While ‘‘coming clean’’ is always scary—and carries with it the risk of disclosing

problems and concerns of which Congress and the American public were previously

unaware—it is a crucial first step to improved management and credibility of this

important environmental program.

Lasting reform is unlikely to be the result of a series of new initiatives, or quick

fixes. After 25 years, many of the same challenges remain as in the early years of

the program. There is a need for better data, for independent evaluation, for a willingness to consider—and make—radical changes in funding and management priorities. And there is a need for increased transparency in all aspects of the program.

I urge EPA to have as its goal not making the program better this year or next,

but to try to ensure that, 5 years from now, the program is better focused and managed, and that there is better data and information about Superfund sites available

to the public. With an eye on the long-term (rather than on tomorrow’s news) EPA

can give the American public a much stronger and more effective Superfund program.

Thank you very much for asking me to testify before you today. I would be happy

to answer any questions.
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RESPONSES BY KATHERINE N. PROBST TO ADDITIONAL QUESTIONS

FROM SENATOR JEFFORDS

Question 1. In your testimony, you suggest that EPA should come clean about the

impact of the funding shortfall on the future pace of Superfund clean ups. What specifically do you recommend?

Response. I recommend that EPA detail, for each site on the NPL, the total

amount of additional funding needed to complete cleanup of each site as expeditiously as possible, and specify how much in funding would be needed each year

until cleanup is complete to finish all remedial activities at each site as soon as possible.

EPA should then specify the implications, on cost and duration of cleanup, of current funding levels, i.e. for each site, EPA should detail the likely delay in each

phase of the cleanup process due to the current funding shortfall, and any increase

in total costs (both in discounted and undiscounted dollars), for that site as a result

of the cleanup being spread out over more years than dictated by any physical or

engineering constraints at the site.

It should be noted that while past evaluations have made clear that more cleanup

funding would speed clean up, there are physical and engineering constraints in

how quickly any individual site can be cleaned up. For example, when we completed

our study of future cleanup costs, EPA staff estimated that the New Bedford Harbor

site needed approximately $300 million in additional funds to complete cleanup activities. If that full amount were allocated to the Regional Office today, they could

not finish that cleanup in one year.

Question 2. In your testimony, you also discussed a number of steps that EPA

needs to take to ensure that institutional controls at Superfund sites are monitored

and enforced. Am I correct in stating that, without proper monitoring and enforcement, EPA clean ups that rely on institutional controls are not protective?

Response. Without proper monitoring and enforcement of institutional controls

there is no way to know if a site that relies on institutional controls as part of the

remedy is protective. If, in fact, the required institutional are not in place, then the

site remedy is not protective.

Question 3. Your written testimony notes that EPA’s annual Superfund appropriations has decreased substantially when adjusted for inflation. How has this impacted the Superfund program? Am I correct that EPA could clean up more abandoned sites if it had greater resources?

Response. Many people (including myself) often say that the Superfund program

has had ‘‘level funding’’ for the past few years, and refer to funding levels over the

life of the Superfund program in what are called ‘‘nominal dollars.’’ In so doing, we

all minimize the very real ‘‘cuts’’ to the program that has occurred over the past

20 years. The reason to point out the decrease in appropriations when the amounts

are adjusted for inflation is to make clear that the Superfund programs’ purchasing

power has in fact decreased dramatically over the past 15–20 years.

As noted in my response to question No. 2 above, I think unquestionably some

cleanups at some NPL sites could be accelerated, and additional sites contaminated

with hazardous substances could be cleaned up if annual Superfund appropriations

were increased, and if these funds were targeted specifically to cleanup activities.

That said, as noted in my response to question No. 2, there is a limit to how much

some cleanups can be accelerated—as there are limitations on what can be done

that are imposed by the physical characteristics of each site, as well as engineering

constraints.

Clearly, with more funds, more sites could be placed on the NPL, or more removal

actions could be completed. That said, at some point, limited EPA staffing could

itself be a constraint on the number of cleanups that could be implemented.

RESPONSES BY KATHERINE N. PROBST TO ADDITIONAL QUESTIONS

FROM SENATOR BOXER

Question 1. Your testimony states that ‘‘it is critical that EPA ‘‘come clean’’ about

the implications of [a funding] shortfall on the future pace of cleanup, and on

progress at individual sites’’, and that EPA should tell Congress on an annual basis

‘‘how much funding would be needed to ‘fully fund’ cleanup, assuming no change in

current cleanup standards and policies.’’

Do you think that EPA’s release of this information would help increase program

accountability and efficiency, and play an important role in increasing public involvement in cleanups?
69

Response. I think that releasing information on the amount of funds needed to

complete cleanup at each and every NPL site, whether PRP or Fund-lead would increase program accountability and efficiency and play an important role in increasing public involvement in cleanups. I would refer you to the recommendations in a

report for which I was the lead author, Success for Superfund: A New Approach for

Keeping Score, which us available at http://www.rff.org/Documents/RFF–RPT–

SuperfundSuccess.pdf.

Question 2. Your 2001 report to Congress, ‘‘Superfund’s Future’’, recommended

that EPA ‘‘improve the management and financial systems for tracking Superfund

progress and costs.’’ Today, in 2005, you are again recommending that EPA improve

their data management, but also that the Agency increase the public’s access to useful information on sites.

Could you please describe the main actions that you think EPA should undertake

in order to provide truly useful information to the public.

Response. Again, I would refer you to the recommendations in a report for which

I was the lead author, Success for Superfund: A New Approach for Keeping Score,

which us available at http://www.rff.org/Documents/RFF–RPT–

SuperfundSuccess.pdf.

The main recommendations that we make in that report is that EPA should:

• Create a standardized NPL Scorecard for each NPL site that contains concise up-to-date information on site progress and key attributes (updated at least

quarterly). The NPL Scorecard would have six sections: (1) background information, (2) site progress to date and expected future actions, (3) baseline contamination and population information, (4) risk reduction accomplishments, (5) postconstruction activities, and (6) cost information.

In our report, we detail the specific information that we recommend be included in each section of the Scorecard. The information we recommend is easy

to understand and technically accurate at the same time. We recommend that

EPA include in this report planned future activities at each site, as well as past

and estimated future costs.

• Create a one-page NPL Report Card, which would include a subset of information from the NPL Scorecard containing the most important measures of site

progress, along with a small amount of background information. A mock up of

the Report Card is included in our report.

• Institute a Web-based Superfund annual report that would include summary

information on site progress, as well as other indicators of program performance. This annual report would be similar to the formerly issued Superfund Annual Report to Congress. As part of this new report, EPA should include an annual (or biannual) program evaluation agenda. This agenda should identify the

key issues that are ripe for an in-depth qualitative or quantitative evaluation

and make public the topics and schedule for these evaluations. To develop this

agenda, EPA staff would regularly solicit suggestions from states, tribes, local

community representatives, environmental groups, industry, external experts,

and other stakeholders.

I would note that while we do not say this explicitly in the report, our assumption

was that this NPL scorecard and report card would be the first item you would see

for each NPL site when logging on to the EPA Superfund Web site, i.e. it would

be easy to find.

Question 3a. Your 2001 report provided low, middle and high funding scenarios

for the Superfund program from 2000 to 2009.

Please provide me with a comparison, in figures adjusted for inflation to 2005, of

your low, middle and high funding estimates and the amount of money appropriated

to or requested for EPA between 2001 and 2007.

Response. This information is included in the figure and table below.

Question 3b. Please provide an annual and cumulative total for any amount of

underfunding.

Response. This information is included in the figure and table below.
70
71

STATEMENT OF J. WINSTON PORTER, PRESIDENT, THE WASTE POLICY CENTER

Mr. Chairman, my name is J. Winston Porter, and I am president of the Waste

Policy Center in Leesburg, Virginia. The WPC is a private research and consulting

organization which deals with management, policy, and technical issues in the areas

of solid and hazardous waste management, as well as other environmental subjects.

From 1985 to 1989, I was EPA’s Assistant Administrator for Solid Wastes and

Emergency Response.

It is a pleasure to be here today to provide testimony on the status of Superfund,

particularly as it relates to the possibility of improved efficiencies in the program.

In my testimony I will draw upon some 20 years of Superfund management and

consulting experience, including that with EPA, the Departments of Energy and Defense, several States, and numerous private parties. My professional background

also includes the fields of chemical engineering and project management. I will start

with a brief background statement, followed by my recommendations related to Superfund’s study, remedy selection, and remedy construction phases.

BACKGROUND

Briefly, the current status of EPA’s Superfund program is that about two-thirds

of the 1,550 national priority list sites have reached the construction completed

(remedy installed) phase, almost 400 sites are in the remedy design or construction

phases, and approximately 150 sites are in the study phase.

In addition, many thousands of ‘‘emergency removals’’ have been conducted at

Superfund sites in order to quickly, cost effectively, and directly deal with obvious

problem areas. This program has perhaps been Superfund’s biggest success.

It is also important to note that the EPA has a significant number of Superfund

sites in the remedy construction phase for which both potential responsible party

(PRP) and Federal funds are very limited.

In addition to the EPA, both the DOE and DOD have major Superfund-related

programs underway. The DOE work primarily involves a few dozen large facilities,

most of which have been components of the nuclear weapons program. The DOD

sites are much more numerous and include both Superfund and base closure activities.

So, a large amount of work is underway or has been completed by a group of

knowledgeable and dedicated Federal and State governmental personnel as well as

PRPs and specialized private contractors. My overall assessment is that much has

been achieved under the Superfund program, but much remains to be done. For this

remaining work it is important to improve program efficiency in order to ensure

timely and technically sound cleanups in a more cost-effective manner.

As we strive to improve the ongoing program, let me first make several general

observations related to the Superfund program, which will serve as the bases for

my later recommendations.

First, Superfund is not an ‘‘exact science.’’ Science and technology are very important in addressing Superfund waste sites, but selecting a sound remedial action at

a site requires a good dose of common sense and ‘‘engineering judgment’’ since no

two sites are the same. The Superfund regulations themselves require decisionmakers to consider such elements as cost effectiveness, implementability, and state

and community acceptance in selecting a remedy. These are not primarily technical

issues.

Second, while much has been accomplished by Superfund, site study and remediation activities generally take too long and cost too much.

Third, the trend in recent years to use the Superfund program for only the most

complex and hazardous sites is sound. Most waste sites in the country can now be

managed under other EPA or State programs, brownfields activities, and various

voluntary cleanup processes.

Most of the following recommendations will be directed at the EPA Superfund

program, but will also have important implications for other Federal agencies. My

comments will be further divided into study, remedy selection, and construction

phases.

THE STUDY PHASE

While the study projects related to Superfund sites are a decreasing part of the

overall program, such activities are still very important to overall program success.

Superfund projects usually begin with a ‘‘remedial investigation/feasibility study’’

(RI/FS). This complex study process is described in some detail in Superfund’s primary regulation—the National Contingency Plan.
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Very briefly, the RI portion calls for characterization of the site in terms of its

natural features, as well as the amount and location of contamination and likely

risks of such contamination to both humans and the environment. The FS part involves selection of alternative remedial actions, and then comparison of such alternatives against a set of nine remedy selection criteria.

Based on the RI/FS process, as well as substantial stakeholder input, EPA then

selects a remedy for the site through a ‘‘record of decision’’ (ROD) process.

In general, the RI/FS process has gotten steadily more complex and lengthy over

the years, for almost all types of sites. My recommendations for conducting faster,

less costly, and more technically sound RI/FSs are as follows:

1. Most importantly, timeframes for completing the study phase should be agreed

to by the EPA and other key participants, such as PRPs.—Unfortunately, at many

sites the study work simply meanders around for many years without much focus

or mid-course corrections, leading to wasted time and money, and ,in some cases,

an unimaginative or noncost-effective remedy selection. Frankly, part of this lengthy

process has to do somewhat with the fact that Superfund has become a large ‘‘jobs

program’’ for governmental employees, as well as various consultants, contractors,

and lawyers. All of these specialists are needed, but their work needs to be more

directed toward results rather than complex processes.

Some complex Federal and other sites (eg., some major river sediment problems)

will require longer study periods, but for most sites about 2–4 years should be adequate to produce a sound RI/FS.

So, early in the RI/FS process the EPA, PRPs, and other relevant organizations,

should work together to set a clear goal to complete the study activities. This end

date can be modified if necessary, but it is important for all to understand that, like

almost every other type of engineering project, schedule (and budget) are key factors

and should be adhered to.

There a number of examples of the success of target setting in Superfund, but perhaps the most dramatic has been the DOE Rocky Flats Closure Project, near Denver. For this site the ‘‘completion contractor,’’ Kaiser-Hill, and the DOE agreed upon

a 2005 target date for all study and remedy implementation work to be completed.

If successful, the contractor was to receive a completion bonus. Not only was the

project completed on time, but billions of dollars and decades of time were saved.

This work, of course, required good cooperation among the DOE, EPA, the State of

Colorado, local stakeholders, and the contractor. The firm completion target date

greatly focused this cooperation.

Finally, this project illustrates the importance, for both study and construction

work, of the site personnel developing what I have referred to as a ‘‘culture of completion.’’

2. When the RI/FS process begins one of the first orders of business should be to

use experienced staff and key stakeholders to quickly identify about 4–7 major remedial action alternatives.—Where relevant, use should be made of EPA’s list of ‘‘presumptive remedies’’ for many types of problems, as well as experience gained at

similar Superfund sites.

This set of alternatives can always be modified during the study phase, but the

current process which often involves ‘‘taking data’’ for many years before detailed

focus on remedial options often leads to overly costly information, much of which

is not needed, or with shortages of the data which is actually needed to compare

remedial alternatives for the site.

An iterative approach should be used where information collection and analysis

of remedial alternatives work cooperatively in order to achieve sound comparisons

of options, leading to a good remedy selection.

Even more importantly, the identification of key options early in the study process

allows the decisionmakers and stakeholders to begin their dialog on the non-technical factors which are contained in the remedy selection criteria. These include

such items as cost-effectiveness, implementability, and state and community acceptance. Many times these types of factors are at least as important as the strictly

technical matters.

3. Significantly streamline the process for developing the myriad of deliverables at

Superfund sites.—While certain documents are clearly needed to guide the RI/FS activities, the long, tedious process of developing lengthy draft and final work plans,

for example, should be expedited. This is also true of other ‘‘deliverables’’ which take

so much time at Superfund sites, many of which should be quite standard by now.

There are several perverse effects which have led to such lengthy periods for document development and review. One has to do with the fact that Superfund is the

only Federal environmental program where responsible parties have to pay for additional oversight beyond that which salaried regulators normally provide. Thus, if a

group of companies are forced to give EPA, say, $5 million for oversight, then EPA
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can retain contractors to provide hundreds of pages of ‘‘comments’’ on such items

as the aforementioned work plans. So, we now have dueling contractors battling

over many pages of detailed text, before work can even begin.

One near term answer would be for review periods and oversight dollars to be reduced substantially, so participants can focus more on results than elaborate processes. 4. The PRPs should be encouraged to conduct the RI/FSs themselves with their

own contractors and under EPA’s overall supervision.—While this concept has been

largely accepted and successfully promoted by EPA, more could be done to encourage PRPs to do the study work, particularly where PRPs would commit to more reasonable timeframes than EPA often takes for its own studies.

5. Finally, innovative study approaches should be developed which recognize newer

technologies, as well as a quarter of a century of Superfund experience.— An example

is EPA’s ‘‘Triad Approach,’’ which promotes real time technical decisionmaking in

order to move rapidly through the study and cleanup phases.

THE SELECTION OF REMEDY PHASE

The RI/FS process discussed above presents the decisionmaker with detailed comparisons of alternative remedial actions, from which this person must select a remedy, present it to the public for comment and make a final determination. The selection of protective, cost-effective remedies is, of course, a key to the overall success

of the Superfund program. My suggestions in this area are as follows:

1. The decisionmaker should be a very senior EPA official who can oversee all of

the considerations which go into remedy selection.— As noted earlier, technical factors are very important in this process, but non-technical factors are also key. For

example, if there is very strong community opposition to a particular remedial action, or if a remedial option is not cost-effective, such factors must be considered

by the decisionmaker.

During my tenure as an EPA assistant administrator I made a number of ROD

decisions, mainly at ‘‘nationally significant sites.’’ Most decisions I delegated to the

ten EPA regional administrators (RAs). However, over the years the ROD decision

responsibility has, in most cases, been delegated further down the line in the EPA

regions.

My own view is that the RA should be the decisionmaker in this important process since he or she is the one who can speak for the region and has the position

and stature to consider all aspects of the problem, while ‘‘pushing’’ the staff to provide the necessary information to complete remedy selection expeditiously.

2. The role of expected land use should be an important factor in selecting a remedy.—While all remedies should be protective, it does not make much sense to demand that a cleanup be sufficient for, say, a children’s center, when the site is slated for use as a golf course, or a factory, or a wildlife preserve. All of these uses have

their own requirements, but we do not need a one-size-fits-all approach to waste

sites. The goal should be for a site to always be protective, so the remedial action

may need to be modified at a later date if the site use changes dramatically.

During Superfund’s history one of the better examples of the role of land use in

remedy selection has to do with the DOD’s Rocky Mountain Arsenal in Colorado.

For this site, the DOD decided ultimately that the land use would be for a wildlife

refuge. Once this decision was made the DOD, Shell Oil, EPA, and the State and

local stakeholders worked together to select the remedy and move quickly into the

construction phase.

Another DOD issue may also be instructive with respect to the land use issue.

This has to do with the DOD’s Superfund-related remediation sites versus those

conducted under the base closure program. Simply stated, the base closure cleanups,

including the selection of remedy, seem to proceed much faster than those related

to Superfund. One of the reasons, I believe, has to do with the fact that local communities and others are usually highly motivated to finish base closure cleanups in

order to bring the affected land into productive use. The same time pressure often

does not exist with Superfund remedial activities.

THE CONSTRUCTION PHASE

As noted earlier the major activity these days has to do with the construction

phase at Superfund sites. Almost 400 sites are in the phase where the selected remedy is being either designed or constructed. Currently, this is also the most controversial phase in that EPA apparently does not have sufficient funds to expeditiously complete all of the construction work now planned.

This is particularly true for so-called fund-financed sites where EPA must install

the remedy itself as there are insufficient willing and able PRPs to conduct this
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work at some sites. This issue is further compounded by the views of some that at

a significant number of sites the community may not be fully protected since construction funds are not readily available.

The following are my recommendations on these construction-phase issues:

1. The roughly $1.2 billion which is annually appropriated to EPA by Congress

should be looked at very carefully by EPA senior management to ensure that the

highest priority is given to protecting human health and the environment. While I

have not done a detailed review of the current Superfund budget, my general view

is that large amounts of money are still being used for nonsite-specific activities and

overheads.

2. If Congress is satisfied that EPA has done all it can do to squeeze out funding

for as many construction sites as possible, then it might consider a supplemental

appropriation to EPA to focus on additional construction activities.

3. The EPA might selectively revisit the ROD decisions made at these sites to see

if some savings can be made based on new information or technology.

4. Although I suspect that this is already being done, that portion of the site

which may provide actual, near term risk to the community should receive very high

priority for funding.

5. While aiming at the highest risks is always the most important priority, I personally believe that where sites can be finished for very modest sums of money, such

funding should be considered, as there are usually site ‘‘carrying charges’’ which can

then be reduced.

6. The EPA and others should be creative in finding non-Federal funds for completing sites. In some cases, local developers or others may be so interested in having access to a completed site that they may be interested in helping financially.

This type of financial driver has, of course, been instrumental in dealing with

brownfields sites, which can often be very valuable when cleanup measures are completed.

7. Other creative measure should be pursued in the future to mininimize costs

and to develop more creative financing. A good example is the joint EPA and Army

Corps of Engineers eight pilot program referred to as the ‘‘urban rivers restoration

initiative.’’ In this program the EPA and the Corps, along with State and other

agencies, work together to achieve a better and more cost-effective restoration program than by using Superfund alone.

8. Finally, it was mentioned earlier in this testimony that the removal (or early

action) program has been one of Superfund’s major successes. This program can deal

with obvious contamination problems anytime during the Superfund process, with

much less process costs than the remediation program. Given, this program’s success, Congress might consider allowing EPA to spend more than the current limit

on individual removal actions.

Implicit in all the above is the fact that I don’t believe that the chemical and petroleum feedstock taxes should be renewed on Superfund. These taxes are unfair in

that they target only two industries, which together account for much less than half

of Superfund’s contamination problems. Also, Superfund sites are a broad societal

problem which has been created by many types of industries; local, State, and Federal agencies; and even individuals. Therefore, I believe the current process of using

general revenues and funds from directly responsible parties is the right approach.

Finally, I am not convinced that EPA and the Congress have done all they can

to increase Superfund efficiencies and to prioritize the use of existing funds.

Mr. Chairman, I hope my remarks will be helpful to Congress in dealing with this

important program, and will be happy to answer any questions which you might

have.

STATEMENT OF LEONARDO TRASANDE, M.D., MPP, ASSISTANT DIRECTOR, CENTER FOR

CHILDREN’S HEALTH AND THE ENVIRONMENT, DEPARTMENT OF COMMUNITY AND

PREVENTIVE MEDICINE, MOUNT SINAI SCHOOL OF MEDICINE

Good morning, Mr. Chairman and members of the subcommittee. I am Dr.

Leonardo Trasande. I am a pediatrician and Assistant Professor of Community &

Preventive Medicine and Pediatrics at the Mount Sinai School of Medicine. I am

also the Assistant Director of the Center for Children’s Health and the Environment, the Nation’s first academic policy center devoted to the protection of children

against environmental threats to health.

Approximately 3 to 4 million children and adolescents in the United States live

within 1 mile of a federally designated Superfund hazardous waste disposal site.

These children are at especially high risk of exposure to chemical toxicants released

from these sites into air, groundwater, surface water, and surrounding communities.
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In the face of a growing body of scientific knowledge about the preventable, environmental causes of learning and behavioral problems in our children, we must take

prudent action, and today I urge the members of this subcommittee to take three

important steps to prevent chronic disease in American children:

• Expeditious identification and cleanup of Superfund sites,

• Full funding for the NIEHS/EPA Superfund Basic Research Program, and

• Full funding for the National Children’s Study.

THE NEED FOR IDENTIFICATION AND CLEANUP OF SUPERFUND SITES

The EPA Superfund program is especially critical to the health of these children.

Rapid identification and cleanup of these sites is so important because children are

especially vulnerable to many chemicals that exist at many of the Superfund sites

in our Nation. There are several reasons why children are so sensitive to chemical

toxins, and the research that we have undertaken in our Superfund Basic Research

Program at Mount Sinai has contributed greatly to the understanding of these factors:

• One important reason why children are so vulnerable to environmental chemicals is that they have disproportionately heavy exposures. Pound per pound of body

weight, children drink more water, eat more food, and breathe more air than adults,

and so they take proportionately more of the toxins in water, food and air into their

little bodies. Small children’s exposure is magnified further by their normal behaviors—their play close to the floor, and their hand-to-mouth activity, which we pediatricians call ‘‘normal oral exploratory behavior.’’

• A second reason for their great susceptibility to chemical toxins is that children

do not metabolize, detoxify, and excrete many toxins in the same way as adults;

thus the chemicals can reside much longer in children’s bloodstreams and cause

more damage.

• A third reason is that children are undergoing rapid growth and development,

and those very complex developmental processes are easily disrupted.

• Finally, children have more future years of life than most adults and thus have

more time to develop chronic diseases that may be triggered by early environmental

exposures.

Over the past 30 years, chronic diseases of environmental origin have become epidemic in American children, and are the diseases of greatest current concern. These

include:

• Asthma, which has more than doubled in frequency since 1980 and become the

leading cause of pediatric hospitalization and school absenteeism;

• Birth defects, which are now the leading cause of infant death. Certain birth

defects, such as hypospadias, have doubled in frequency;

• Neurodevelopmental disorders—autism, dyslexia, mental retardation, and attention deficit/hyperactivity disorder (ADHD). These conditions affect 5–10 percent

of the 4 million babies born each year in the United States. Reported rates of autism

are increasing especially sharply—more than 20 percent per year.

• Leukemia and brain cancer in children and testicular cancer in adolescents. Incidence rates of these malignancies have increased since the 1970s, despite declining

rates of mortality.

• Testicular cancer has risen by 55 percent, and primary brain cancer by 40 percent. Cancer is now the second leading cause of death in American children, surpassed only by traumatic injuries; and

• Preterm birth, which has increased in incidence by 27 percent since 1981.

These rapidly rising rates of chronic disease threaten the health of our children

and the future security of our Nation. Indeed, concern is strong among the pediatric

community that these rapidly rising rates of disease may create a situation unprecedented in the 200 years of our Nation’s history, in which our current generation of

children may be the first American children ever not to enjoy a longer life span than

the generation before them.

Evidence is increasing that many environmental chemicals found at Superfund

sites contribute to the causation of disease in children. Lead, mercury, polychlorinated biphenyls (PCBs) and certain pesticides have been shown to cause brain

damage and to contribute to learning disabilities and to disruption of children’s behavior. Benzene, 1,3-butadiene, and pesticides have been etiologically associated

with childhood malignancies. Ambient pollutants—airborne fine particulates, ozone,

oxides of nitrogen, and diesel exhaust also have been shown to increase incidence

of asthma and to trigger asthmatic attacks. Although many of the causes of developmental problems in children are still not known, a recent National Academy of

Sciences study suggests that at least 28 percent of developmental disabilities in chil-
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dren—dyslexia, attention deficit disorder and mental retardation—are due to environmental causes.

Diseases of environmental origin in American children are also extremely costly

to our Nation. Four of the leading diseases of environmental origin in American children—lead poisoning, childhood asthma, neurodevelopmental disabilities and childhood cancer—have been found to cost our Nation $54.9 billion annually. Mercury

pollution has been found to cost our Nation $8.7 billion annually as a result of lost

economic productivity, and an additional 1566 cases of mental retardation have been

associated with mercury pollution. Each of these cases is associated with additional

special education and health care costs that are disproportionately borne by the

American taxpayer. By cleaning up toxic waste sites, we reduce toxic exposures and

prevent chronic disease, and thus reduction of unnecessary toxic exposure to Superfund chemicals can be an effective and cost-effective approach to improving child

health in America. This subcommittee should therefore continue to ensure that EPA

is fully executing its duties under the Superfund program to identify and cleanup

hazardous waste sites in the safest and most expeditious manner possible.

THE NEED FOR CONTINUED FULL FUNDING OF THE SUPERFUND BASIC

RESEARCH PROGRAM

The Superfund Basic Research Program (SBRP) is equally critical if we are to understand and prevent the environmental causes of chronic childhood conditions that

have now reached epidemic proportions in our Nation. The National Institute of Environmental Health Sciences’ (NIEHS) Superfund Basic Research Program is a

unique program of basic research and training grants directed toward understanding, assessing, and reducing the adverse effects on human health that result

from exposure to hazardous substances. Grants made under this program are for coordinated, multicomponent, interdisciplinary programs. The technology within this

program is on the cutting edge of assessing and evaluating human exposure, effects

of hazardous substances and transport of chemicals through various media from

waste sites. This program is researching and developing many innovative technologies for detecting, assessing, and reducing toxic materials in the environment.

The NIEHS/EPA SBRP had previously focused on understanding the impact of

toxic environmental exposures on the health of adults. However, it has become apparent that this data base of information is not necessarily applicable to children.

The program recognized this deficit early and, accordingly, has directed an increasing percentage of its diverse research efforts toward understanding the effects of environmental exposures on children’s health. These studies in universities across the

United States include fetal, infant, childhood, and adolescent research. Research in

exposure assessment is of particular interest.

The below Table provides a snapshot of some of the previous projects that have

been supported in the past by the SBRP in the area of children’s health.
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While it seems that studies of adult exposures might most efficiently investigate

gene-environment interactions related to the disorders that produce the greatest disability, hospitalization, and death, which occur in adults rather than children, this

focus ignores the growing evidence of important and even crucial environmental contributions to adult disorders that start early in development. Because early environmental exposures are so important, a longitudinal assessment of the environment

from the preconceptual period through infancy is essential to unravel the underlying

susceptibility to diseases of adulthood. It is now clear that vulnerability to a particular risk factor is often determined not only by the genome acquired at conception, but also by dynamic modifications to the genome, and therefore to assess geneenvironment interactions adequately, not only will the stable DNA sequence be essential but also epigenetic modifications to nuclear and mitochondrial DNA will

have to be identified. Thus continued emphasis on child health studies within the

Superfund Program is especially critical going forward.

THE NATIONAL CHILDREN’S STUDY—SAFEGUARDING THE HEALTH OF OUR CHILDREN

Finally, in this testimony I wish to point out the critical need for funding the National Children’s Study, which will unearth so much important information of the

health effects of chemicals found at Superfund sites.

The National Children’s Study is a prospective multi-year epidemiological study

that will follow 100,000 American children, a nationally representative sample of all

children born in the United States, from conception to age 21. The study will assess

and evaluate the environmental exposures these children experience in the womb,

in their homes, in their schools and in their communities. It will seek associations

between environmental exposures and disease in children. The diseases of interest

include all those listed above. The principal goal of the Study is to identify the preventable environmental causes of pediatric disease and to translate those findings

into preventive action and improved health care. The National Children’s Study was

mandated by Congress through the Children’s Health Act of 2000. The lead Federal

Agency principally responsible for the Study is the National Institute of Child

Health and Human Development. Other participating agencies include the National

Institute of Environmental Health Sciences, the Environmental Protection Agency,

and the Centers for Disease Control and Prevention. By working with pregnant

women and couples, the Study will gather an unprecedented volume of high-quality

data on how environmental factors acting either alone, or in combination with genetic factors, affect the health of infants and children. Examining a wide range of

environmental factors—from air, water, and dust to what children eat and how

often they see a doctor—the Study will help develop prevention strategies and cures

for a wide range of childhood diseases. By collecting data nationwide the study can

test theories and generate hypotheses that will inform biomedical research and he
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care of young patients for years to come. Simply put, this seminal effort will provide

the foundation for children’s healthcare in the 21st Century.

Six aspects of the architecture of the National Children’s Study make it a uniquely powerful tool for protecting the health of America’s children:

1. The National Children’s Study is prospective in its design.—The great strength

of the prospective study design is that it permits unbiased assessment of children’s

exposures in real time as they actually occur, months or years before the onset of

disease or dysfunction. Most previous studies have been forced to rely on inherently

inaccurate retrospective reconstructions of past exposures in children who were already affected with disease. The prospective design obviates the need for recall. It

is especially crucial for studies that require assessments of fetal and infant exposures, because these early exposures are typically very transitory and will be missed

unless they are captured as they occur.

2. The National Children’s Study will employ the very latest tools of molecular epidemiology.—Molecular epidemiology is a cutting-edge approach to population studies

that incorporates highly specific biological markers of exposure, of individual susceptibility and of the precursor states of disease. Especially when it is embedded in a

prospective study, molecular epidemiology is an extremely powerful instrument for

assessing interactions between exposures and disease at the level of the individual

child.

3. The National Children’s Study will incorporate state-of-the-art analyses of geneenvironment interactions.—Recognition is now widespread that gene-environment

interactions are powerful determinants of disease in children. These interactions between the human genome and the environment start early in life, affect the health

of our children, and set the stage for adult disorders. The heroic work of decoding

the human genome has shown that only about 10–20 percent of disease in children

is purely the result of genetic inheritance. The rest is the consequence of interplay

between environmental exposures and genetically determined variations in individual susceptibility. Moreover, genetic inheritance by itself cannot account for the

sharp recent increases that we have seen in incidence of pediatric disease.

4. The National Children’s Study will examine a nationally representative sample

of American children.—Because the 100,000 children to be enrolled in the Study will

be statistically representative of all babies born in the United States during the 5

years of recruitment, findings from the Study can be directly extrapolated to the entire American population. We will not need to contend with enrollment that is

skewed by geography, by socioeconomic status, by the occurrence of disease or by

other factors that could blunt our ability to assess the links between environment

and disease.

5. Environmental analyses in the National Children’s Study will be conducted at

the Centers for Disease Control and Prevention.—The CDC laboratories in Atlanta

are the premier laboratories in this Nation and the world for environmental analysis. Because the testing will be done at CDC it will be the best available, and the

results will be unimpeachable.

6. Samples collected in the National Children’s Study will be stored securely and

will be available for analysis in the future.—New tests and new hypotheses will undoubtedly arise in the years ahead. Previously unsuspected connections will be discovered between the environment, the human genome and disease in children. The

stored specimens so painstakingly collected in the National Children’s Study will be

available for these future analyses.

Congress has already laid a firm foundation for the National Children’s Study.

Between 2000 and 2005, the Congress invested more than $55 million to design the

study and begin building the nationwide network necessary for its implementation.

Seven Vanguard Centers and a Coordinating Center were designated in 2005 at

sites across the Nation—in Pennsylvania, New York, North Carolina, Wisconsin,

Minnesota, South Dakota, Utah and California—to test the necessary research

guidelines—with plans to expand the program to 38 States and 105 communities nationwide. The tough job of designing and organizing is nearly complete. Funding for

the Study this year will permit researchers to begin achieving the results that will

make fundamental improvements in the health of America’s children. To abandon

the Study at this point would mean forgoing all of that dedication, all of that incredible effort, and all of the logistical preparation.

The National Children’s Study will yield benefits that far outweigh its cost. It will

be an extraordinarily worthwhile investment for our Nation, and it can be justified

even in a time of fiscal stress such as we face today. Six of the diseases that are

the focus of the Study (obesity, injury, asthma, diabetes, autism and schizophrenia)

cost America $642 billion each year. If the Study were to produce even a 1 percent

reduction in the cost of these diseases, it would save $6.4 billion annually, 50 times

the average yearly costs of the Study itself. But in actuality, the benefits of the Na-
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tional Children’s study will likely be far greater than a mere 1 percent reduction

in the incidence of disease in children. The Framingham Heart Study, upon which

the National Children’s Study is modeled, is the prototype for longitudinal medical

studies and the benefits that it has yielded have been enormous. The Framingham

Study was launched in 1948, at a time when rates of heart disease and stroke in

American men were skyrocketing, and the causes of those increases were poorly understood. The Framingham Study used path-breaking methods to identify risk factors for heart disease. It identified cigarette smoking, hypertension, diabetes, elevated cholesterol and elevated triglyceride levels as powerful risk factors for cardiovascular disease. These findings contributed powerfully to the 42 percent reduction

in mortality rates from cardiovascular disease that we have achieved in this country

over the past 5 decades.

The data from Framingham have saved millions of lives—and billions of dollars

in health care costs. The National Children’s Study, which will focus on multiple

childhood disorders, could be even more valuable. We do not need to wait 21 years

for benefits to materialize from the national Children’s Study. Valuable information

will become available in a few years’ time, as soon as the first babies in the Study

are born.

Consider, for example, data on premature births. The rate of U.S. premature

births in 2003 was 12.3 percent, far higher than the 7 percent rate in most western

European countries. Hospital costs associated with a premature birth average

$79,000, over 50 times more than the average $1,500 cost for a term birth. Just a

5 percent reduction in rates of prematurity would cut hospital costs by $1.6 billion

annually. Within just 2 years, that savings would match the full cost of the Study.

The Study enjoys a broad group of supporters, including The American Academy

of Pediatrics; Easter Seals; the March of Dimes; the National Hispanic Medical Association; the National Association of County and City Health Officials; the National

Rural Health Association; the Association of Women’s Health, Obstetric and Neonatal Nurses; United Cerebral Palsy; the Spina Bifida Association of America; and

the United States Conference of Catholic Bishops, just to name a few. This broad

and diverse group recognizes the overwhelming benefits this Study will produce for

America’s children.

Congress first authorized the National Children’s Study in 2000, and has appropriated $55 million since then to design the Study, complete preparatory research,

and designate the seven Vanguard sites that will conduct preliminary testing.

This has been a wise investment that should not be abandoned just as the Study

is about to bear fruit. Unfortunately, the Administration has not provided continued

funding in the fiscal year 1907 budget, a decision which threatens to squander the

investment already made and to throw away the multi-generational benefits the

Study will yield. Funding for the Study this year requires a commitment of $69 million. These funds will be used to begin enrolling children in the study. They will

enable the NIH to continue establishing the 105 study sites around the country. We

urge Congress to fully fund the National Children’s Study. It is an investment in

our children—and in America’s future. The National Children’s Study will give our

Nation the ability to understand the causes of chronic disease that cause so much

suffering and death in our children. It will give us the information that we need

on the environmental risk factors and the gene-environment interactions that are

responsible for rising rates of morbidity and mortality. It will provide a blueprint

for the prevention of disease and for the enhancement of the health in America’s

children today and in the future. It will be our legacy to the generations yet unborn.

In summary, Congress is poised to take three critical steps to improve the health

and economic security of our Nation. Through continued expeditious cleanup of

Superfund sites and prevention of toxic chemical exposures from these hazardous

waste sites, we can prevent disease before it occurs in children. We need to continue

to support the Superfund Basic Research Program which provides desperately needed information about the environmental fate and toxic effects of Superfund compounds, and we need full funding for the National Children’s Study if we are to develop effective methods of preventing diseases of environmental exposure among

American children.

Thank you. I shall be pleased to answer your questions.
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RESPONSES BY LEONARDO TRASANDE TO ADDITIONAL QUESTIONS

FROM SENATOR BOXER

Question 1. If EPA is stretching out timelines for cleanups and using institutional

controls that have been shown to be of questionable effectiveness, could this result

in increased risks of cancer and other disease?

Response. Yes, Senator, delays in cleanup can most definitely increase risk for

chronic diseases, especially in children. Uncontrolled chemical exposures pose special dangers to children for the reasons that I have described in my oral testimony.

As I stated in my oral testimony, the benefits of preventing exposure to Superfund

chemicals have been proven time and again—first with lead, then with PCBs and

more recently with pesticides and methylmercury. Delays in preventing toxic exposure will lead to preventable and costly diseases in children such as developmental

disabilities, birth defects and childhood cancers.

Question 2. Mr. Trasande, Mr. Spiegel’s testimony described a situation where

EPA was recommending that people wipe off contaminated dust from their shoes as

a way of reducing exposure.

How effective is this type of activity to reducing potentially harmful exposures to

chemicals such as PCBs?

Response. This approach is ineffective at best, and not an adequate substitute for

removing the offending agent or preventing contact. For example, in our Pediatric

Environmental Health Specialty Unit, we advise parents who work with asbestos,

lead or other chemicals to keep their work clothes at work, and change into new

clothes there so that they do not needlessly track toxic dusts into the home. Once

they deposit in the home, chemical dusts can be extremely difficult to remove, and

can easily be ingested in hand-to-mouth behavior. Once ingested or even inhaled in

some cases, lead and other chemical dusts can harm the brain and other developing

organs in children.

RESPONSES BY LEONARDO TRASANDE TO ADDITIONAL QUESTIONS

FROM SENATOR OBAMA

Question 1. Based upon your experience observing the effect of toxic chemicals on

children, do you believe children may potentially be at risk of cancers and other

medical conditions at lower exposure levels than we previously believed?

Response. Thank you for asking this important question, Senator. Yes, our Nation’s children are at increased risk of cancers, respiratory illness, developmental

disabilities and a host of other chronic childhood conditions as a result of chronic,

low-level exposures that are currently considered ‘‘safe.’’ Genetics cannot explain the

massive epidemic of chronic childhood diseases we are experiencing in America. Unfortunately, we still do not know which chemicals contribute most significantly to

this epidemic because we have limited data about the toxicity of many widely used

environmental chemicals. Our effort to understand the role of environmental chemicals in chronic childhood disease is further complicated by the reality that many of

these chemicals also cause harm without leaving a permanent and detectable fingerprint to which to trace exposure.

Our current regulatory process for chemicals also presumes safety, and allows a

dangerous natural experiment to ensue. Of the 2,800 high production volume chemicals, of which more than one million pounds are produced annually, fewer than half

have undergone any toxicity testing at all, and fewer than one-fifth have had any

previous testing for developmental toxicity. Among those chemicals that have been

studied, the little we know suggests that chemicals are likely to be harmful to children. In the past few years, we have learned that even one microgram per liter of

lead can stunt a child’s cognitive development. Ten micrograms per liter is the current action threshold according to the Centers for Disease Control. The American

Academy of Pediatrics has called for major changes of outdoor air quality standards

because studies have found that particulate matter, sulfur dioxides and other pollutants harm lung development, may precipitate asthma, and may pose increased risk

of cancer. Levels below the EPA’s Reference Dose for mercury have been associated

with abnormalities on behavioral evoked auditory response tests. This is unfortunately just the tip of the iceberg, and in the absence of adequately toxicity testing,

families are unknowingly placing their children in harm’s way.

Question 2. Should we be looking more closely at the risks posed to children by

these sites than to adults?

Response. Yes, Senator, the standard for environmental abatement at Superfund

sites should always be set to protect our Nation’s most valuable resource, our children. This standard was most recently set in the 1993 Food Quality Protection Act,
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1The current members of the Project are Chevron, Ciba Specialty Chemicals Corporation, the

DuPont Company, FMC, General Electric Company, Honeywell International Inc., United Technologies Corporation, and Waste Management, Inc.

which was passed unanimously by both houses of Congress. This law codified the

scientific reality that our children are especially vulnerable to toxic chemical exposures, and that special consideration should always be taken to protect children,

even when the scientific evidence has not confirmed the certainty of chemical toxicity.

We also desperately need to determine child safety thresholds for many chemicals,

and if there is one study that can provide insight into the risks that chemicals pose

for children, it is the National Children’s Study. A study of its magnitude is desperately needed because so many factors complicate understanding the role of

chemicals in childhood disease—genetic variability, social factors and other chemical

exposures make teasing out the role of individual toxicant extremely difficult. To

date, small epidemiologic studies have provided piecemeal knowledge about chemicals, but often we have so little information that Superfund cleanup efforts are

based on toxicity to adults or hypothetical, unseen risks. Superfund cleanup could

thus be made more cost-effective and efficient through the National Children’s

Study.

STATEMENT OF MICHAEL W. STEINBERG, ON BEHALF OF THE SUPERFUND

SETTLEMENTS PROJECT

EXECUTIVE SUMMARY

Superfund today is a mature program that has largely accomplished its goals. Private parties are cleaning up most of the sites on the NPL and paying the full cost

of those cleanups. Superfund has also addressed most of its original workload; construction of the remedy has already been completed at most of the sites on the NPL.

Despite Superfund’s accomplishments, there is still considerable potential for improvement. In particular, EPA can do more with the Superfund appropriation it receives from Congress each year.

Specifically, EPA can take action to conserve more of its annual appropriation for

the core mission of the Superfund program—completing long-term cleanup at sites

on the NPL. Among the steps EPA should take are the following: • revisiting the amount of money transferred each year to EPA offices other than

OSWER; • providing greater transparency on key decisions, such as adding sites to the

NPL; • exercising greater management authority over remedy selection decisions,

which increase Superfund’s long-term financial obligations; • reducing spending on oversight of work performed by experienced private parties; and • reducing spending on non-emergency removal actions.

STATEMENT

The Superfund Settlements Project (‘‘the Project’’) appreciates the opportunity to

share with the subcommittee some industry perspectives on the Superfund program

as it operates today. The Project is a not-for-profit association of eight major companies from various sectors of American industry.1 It was organized in 1987 in order

to help improve the effectiveness of the Superfund program by encouraging settlements, streamlining the settlement process, and reducing transaction costs for all

concerned.

INTRODUCTION

The members of the Project share an extraordinary degree of practical, hands-on

experience with the Superfund program. These companies have been involved at

hundreds of Superfund sites across the country over the last 25 years. Representatives of the Project have testified before Congress on many occasions regarding various aspects of the Superfund program. The Project has also played an active leadership role in the national policy debate over many Superfund issues, and has been

a strong supporter of EPA’s Superfund Administrative Reforms since they were announced in 1995.

Collectively, these eight companies have spent well over $6 billion on site cleanups and site studies since 1980. That spending covered not only the companies’own

shares of liability, but also sizable shares attributable to other parties that were
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2Superfund does consider ‘‘cost-effectiveness’’ to a limited extent. After EPA develops a list

of remedial alternatives that are protective, meet applicable or relevant and appropriate requirements (ARARs), satisfy the statutory preferences for treatment and permanence, etc., then

Superfund asks whether the cost of each alternative is ‘‘proportional to’’ its effectiveness. 40

C.F.R. § 300.430(f)(1)(ii)(D)(2005). But the more fundamental questions—such as the benefits of

meeting ARARs and satisfying the statutory preferences in the first place—are not asked. 3This includes ‘‘orphan’’ sites where the responsible party is insolvent, or has been exempted

from liability by Congress. The Trust Fund is also paying for general informational and outreach

programs such as technical assistance to community groups, research and development, remedial and brownfields policy development, and public participation.

defunct, insolvent, or otherwise unable to pay their fair shares. On top of that, these

eight companies also paid out hundreds of millions of dollars more in Federal Superfund taxes during the first 15 years of the program’s life. All told, these companies

have paid far more than any fair or equitable measure of their actual responsibility

for the contamination at these sites.

The Project regards Superfund as a mature program that has largely accomplished its goals (albeit at a cost that was not always justified by the risks being

addressed2). The gaps in environmental regulatory programs that led to the creation

of many Superfund sites have been filled by the Clean Water Act, the Resource Conservation and Recovery Act, and the Toxic Substances Control Act. Today, private

parties are cleaning up most of the sites on the National Priorities List (‘‘NPL’’), and

they are paying the full cost of those cleanups. The Superfund Trust Fund is paying

for cleanups at the ‘‘orphan’’ sites where no responsible party exists.3

Superfund has also largely addressed its original workload. Significantly, construction of the remedy has already been completed at most of the sites on the NPL.

Today, Superfund is working on the remaining NPL sites, which include some of the

largest, most complex, and most challenging sites.

OVERVIEW

In this statement, we address several key aspects of the Superfund program’s

past, present, and future. First, we describe the evolving partnership between EPA

and industry that has enabled the program to achieve notable successes, particularly since EPA’s announcement of the administrative reforms in October 1995.

Second, we describe the current need for EPA to do more with the Superfund appropriation it receives each year from Congress.

Third, we note that a significant fraction of EPA’s Superfund appropriation is

transferred every year to other EPA program offices that are not involved in actual

cleanup work. We recommend that EPA conserve more of its appropriation for the

core mission of the Superfund program—completing long-term cleanup at NPL sites.

Fourth, we urge that the process of listing sites on the NPL be focused and transparent. The NPL should continue to be ‘‘the tool of last resort.’’ EPA should also

begin explaining to the public why it is listing on the NPL sites with viable Potentially Responsible Parties (‘‘PRPs’’).

Fifth, we recommend that EPA Headquarters have a major role in making the

key decisions about cleanups, in order to achieve more effective management of Superfund’s long-term costs.

Sixth, we urge EPA to reduce spending on oversight of work performed by experienced private parties and to redirect this money to the program’s core mission.

Seventh, and last, we propose refocusing the removal action program on its original purpose of addressing ‘‘emergency’’ threats to human health or the environment.

I. Superfund Today Represents a Highly Successful Partnership Between EPA and

Industry

Although the Superfund program has generated extraordinary levels of controversy and criticism, EPA has, over time, developed institutional capability and

expertise, solved problems, improved relationships, and ultimately established a program that operates relatively effectively and performs a critical function in society.

To be more specific:

• tens of thousands of contaminated sites have been evaluated;

• short-term removal actions have been taken at several thousand of those sites;

• longer-term remedial actions have been completed at most of the non-Federal

sites on the NPL; and

• construction is underway at most of the remaining NPL sites.

Superfund—once a topic of intense public concern, dominated by controversy and

emotion—has fundamentally achieved its objectives and accordingly has receded in

the public focus. Today a general public recognition exists that at most sites, the

actions which should be taken are being taken.
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In the process and in recent years, EPA has also worked to improve relationships

with Potentially Responsible Parties (‘‘PRPs’’) and has minimized its previously

confrontational approach to private parties. For the most part, there now exists an

atmosphere of cooperation and mutual respect. EPA should be commended for its

accomplishments in this field.

It should also be recognized that industry has made major contributions to the

success of this program. Perhaps unfairly, industry initially bore the brunt of criticism for past disposal practices that in essence reflected the values and scientific

knowledge of society in an earlier era. Stung by such criticism and offended by a

liability system that many regarded as totally unfair, much of industry initially protested and resisted the obligations imposed on it by the Superfund statute.

By the mid to late 1980s, however, those attitudes had changed, and most national corporations accepted the imperative that they must participate constructively in addressing this national problem. At site after site across the country,

those companies rose to the challenge. They organized PRP groups, established committees within those groups, investigated the conditions of contamination, and developed action proposals. Once EPA selected the remedies, those companies carried

out remedial actions, and today they are managing long-term operation and maintenance at most sites. They provided the leadership, the technical resources, and the

funding to perform required work at an ever-increasing percentage of contaminated

sites. That percentage is now greater than 70 percent of NPL sites.

Welcoming the more cooperative spirit that EPA has demonstrated since adoption

of the administrative reforms in 1995, those companies have themselves taken pride

in the results of this program. They have earned the right to be regarded as constructive partners in the achievement of success under Superfund. They will continue to be constructive partners in addressing other sites through other cleanup

programs.

Despite Superfund’s notable successes, however, the program still has considerable room for improvement. In particular, EPA can and should do more with the

money it receives each year from Congress. Accordingly, in the spirit of constructive

criticism, we describe below several ways in which EPA can direct more of its annual Superfund appropriation to the core mission of completing long-term cleanup

at NPL sites. Importantly, all of the measures that we recommend here are steps

that EPA can take without the need for legislative action or rulemaking.

II. EPA Can Do More With the Money it Receives Each Year from Congress

The Superfund program today faces a variety of challenges relating to financial

management. The central theme that connects all of these issues is the pressing

need for EPA to manage its annual appropriation more effectively.

Currently, the Superfund program:

• transfers a significant fraction of its appropriation each year to other EPA offices that are not involved in cleanup work;

• takes on new long-term financial obligations each year with little transparency

and limited management review; and

• spends money each year on projects that are not high priorities and activities

that are not essential.

In sum, EPA is not yet managing either its Superfund ‘‘income’’ or its Superfund

‘‘expenses’’ as well as it can.

We offer below a series of recommendations aimed at helping EPA address these

challenges. In particular, EPA should:

• conserve more of its annual Superfund appropriation for the program’s core mission—completing long-term cleanup work at NPL sites;

• provide greater transparency for key decisions;

• exert greater management control over the key decisions that increase Superfund’s long-term financial obligations; and

• reduce unnecessary spending wherever possible.

We address each of these topics below in greater detail.

III. EPA Should Conserve More of Its Superfund Appropriation for Cleaning Up

NPL Sites.

Currently, some $200 MM/yr of EPA’s annual Superfund appropriation is directed

not to the Office of Solid Waste and Emergency Response (‘‘OSWER’’), but to other

EPA offices that provide varying degrees of indirect support to the Superfund program. These other offices include:

• Office of Research and Development (‘‘ORD’’);

• Office of Administration and Resource Management (‘‘OARM’’);

• Office of the Chief Financial Officer (‘‘OCFO’’);

• Office of Inspector General (‘‘OIG’’);
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• Office of Policy and Environmental Information; and

• Office of General Counsel (‘‘OGC’’).

The net effect of these transfers is that nearly one-fifth of the total Superfund appropriation is diverted ‘‘right off the top’’ to other EPA offices that are not actually

involved in cleaning up any Superfund sites. This is significant for several reasons.

First, the amount of money involved here is large, particularly in comparison to

the total amount that EPA actually spends on cleanup work. For example, the

amount transferred to these other offices in fiscal year 2003 was about the same

as the total amount that EPA spent that year on Remedial Design and Remedial

Action at NPL sites, which is the core mission of the Superfund program. To put

it another way, Superfund has been spending about as much on indirect support in

non-Superfund offices as it spends on actual cleanup of NPL sites.

Second, the dollar amounts of these annual transfers to other offices were established years ago. These amounts apparently have not been revisited in light of the

current level of program support that is actually needed from these other offices.

Thus, it is not clear that these allocations reflect Superfund’s current needs, or that

they reflect sound management decisions about the wisest use of public funds.

Third, we know of no policy reason why the Superfund program should pay for

the support of OARM, OCFO, and OIG, among others. These support offices provide

shared services to EPA’s many programs, and these offices are directly funded by

Congress as part of EPA’s annual appropriation. The current practice of having the

Superfund program pay for these shared services is a glaring departure from the

normal practice, both at EPA and throughout the Federal Government.

Finally, apart from the magnitude of these transfers to other offices, the transfers

are open-ended, in the sense that any funds not actually used by the offices receiving the transfer apparently remain available for their use in subsequent fiscal years.

Any funds not actually used in a given year should be returned to OSWER at the

end of that year, so that they may be used on cleanups. In sum, we recommend that

EPA carefully scrutinize its use of its Superfund budget so as to conserve more for

the core mission of the Superfund program.

IV. The NPL Listing Process Should be Focused and Transparent

Each new site listed on the NPL effectively imposes long-term financial obligations on the Superfund budget for many years to come. We believe that new sites

should be listed on the NPL only after (1) a finding that they require Federal intervention because no other options will work (‘‘the tool of last resort’’), and (2) a transparent process that allows the public to comment on these issues. We address these

two points in turn.

A. The NPL Should Remain the ‘‘Tool of Last Resort’’

In thinking about the purpose and scope of the NPL, it is helpful to bear in mind

the lessons learned during the past 25 years in three main areas:

• the universe of contaminated sites;

• the alternatives available for addressing those sites; and

• the strengths and weaknesses of the Superfund program.

We briefly address each of these points below, before explaining why the NPL is,

and should remain, the ‘‘tool of last resort.’’

First, experience has dramatically changed our knowledge about the number and

character of contaminated sites throughout the country, as well as the risks associated with them. Rather than facing a few hundred sites, each of which was initially

believed to pose severe threats to public health, it now is clear that we have a great

many sites, most of which pose relatively small, if any, risks. For example, one EPA

count of potential Brownfield sites indicated over 600,000 sites perceived to be impacted by contamination, the great majority of which either are being addressed

through State programs or pose no severe or immediate risk to human health or

to the environment. These factors mean that contaminated sites should be managed

by leveraging all appropriate private and public resources. The framework for response should emphasize State, local, and private efforts, rather than ‘‘making a

Federal case’’ out of each site.

Second, the choices available to society to address contaminated sites are far

greater today than those in existence when Superfund was enacted in 1980. Virtually all states have developed their own ‘‘mini-Superfund’’ programs and voluntary

cleanup programs that have achieved success. In addition, at the Federal level,

EPA’s RCRA corrective action program governs thousands of operating facilities,

and another program covers underground storage tanks.

Third, Superfund’s strengths and weaknesses as a cleanup program can be seen

more clearly today based on 25 years of experience. As to its strengths, Superfund

has focused attention on the need to remediate sites contaminated due to the inad-
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4See, e.g., U.S. General Accounting Office, Environmental Protection— Meeting Public Expectations With Limited Resources 17–18 (1991) (GAO/RCED–91–97) (risks from contaminated

sites ranked relatively low by EPA scientists, but relatively high by the public). 5This same approach should also govern NPL delistings or deletions. The core idea is that

if the studies and cleanup work performed at an NPL site have brought it to the point where

the remaining risk would no longer justify application of ‘‘the tool of last resort,’’ then EPA

should find a way to remove that site from the NPL so it can be addressed in a more appropriate way. Whatever the criteria for NPL listing, it makes little sense to keep a site in the

NPL universe once it no longer meets those criteria. 6 EPA’s Federal Register notices provide the names of the sites that are proposed to be listed,

but no explanation of what EPA hopes to accomplish by listing them on the NPL. See, e.g., 71

Fed. Reg. 20052 (April 19, 2006) (proposing to list 6 sites on the NPL without explaining what

EPA hopes to accomplish by listing them).

equacies of pre-1980 disposal requirements. It has galvanized cleanup efforts, and

it has achieved cleanups at most of the roughly 1,500 sites listed on the NPL.

Superfund has also performed many successful emergency removal actions, most of

them at non-NPL sites.

As to its weaknesses, Superfund has attached a lasting stigma to some sites and

the communities that surround them. In many cases, Superfund has also imposed

excessive operational, legal, and financial restrictions on these sites that will interfere with their future reuse or redevelopment. Moreover, the cost at which Superfund has achieved results—some $35 billion in EPA appropriations alone since 1980,

and at least that much more in private sector spending—is widely viewed as far

higher than necessary or justified in light of the risks being addressed.

In hindsight, at least, it seems clear that many sites addressed under Superfund

did not present major risks to human health or the environment.4 Instead, sites

were listed on the NPL based on fairly crude assessments of their potential risks.

Once a site is listed on the NPL, however, the focus shifts from risk reduction to

‘‘cleanup,’’ where progress is much slower and completion is maddeningly elusive.

Ironically, this focus on ‘‘cleanup’’ often delays or limits the risk reduction that

should be Superfund’s focus.

In light of this experience, it is clear that the NPL should continue to be the tool

of last resort—a tool that because of its unique nature should only be used in those

situations that require such a high-cost, inefficient mechanism. EPA adopted this

term—‘‘the tool of last resort’’—as its unofficial policy some years ago, but then

failed to communicate this policy clearly in its actual NPL listings. As we show

below, the resulting lack of transparency makes it difficult for the local communities

or other interested parties to understand why some sites are listed and others are

not.

The circumstances warranting use of the Superfund NPL as ‘‘the tool of last resort’’ might include sites that:

• are severely contaminated; and

• pose immediate or severe risks; and

• have no near-term prospect of cleanup by viable PRPs.

But apart from the sites that meet the above criteria for NPL listing, nearly all

other sites should be managed under other programs. This would include the RCRA

corrective action program and the full range of state cleanup programs. If those

other programs are viewed as deficient in some respects, then those programs

should be improved rather than shifting sites to Superfund and thereby removing

the incentive to remedy the perceived shortcomings of those other Federal and State

programs.5

It is fully expected that PRPs—mostly private companies, as well as governmental

departments and agencies—will continue to perform and fund cleanups, either individually or in conjunction with regulatory agencies, at sites they have contaminated.

The point here is simply that Superfund is not the proper mechanism to address

most of these sites.

We now turn to the process used to list sites on the NPL, with a focus on the

need for greater transparency regarding the reasons why sites are being listed.

B. NPL Listings Should Be Transparent

When it comes to transparency in government, more is better. Yet for a process

with such high stakes, EPA’s NPL listing decisions are somewhat opaque.

EPA adds sites to the NPL each year. It does so without offering any public explanation of what other options EPA considered for addressing those sites, or why EPA

decided that the other options were inadequate.6 This means that the local communities and other interested parties have no way, as a practical matter, to submit
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7 EPA’s RCRA corrective action program, on the other hand, embraced the policy of tailored

oversight some years ago. See 65 Fed. Reg. 58,275 (Sept. 28, 2000) (announcing release of guidance document entitled ’’Results-Based Approaches to Corrective Action: Tailored Oversight’’).

meaningful comments on proposed NPL listings, because EPA has never said why

it wants or needs to list the sites.

To address this deficiency, EPA should include a brief statement along with each

proposed NPL listing. In that statement, EPA should note any other approaches it

has considered for addressing the site (e.g., state voluntary cleanup program). EPA

should also explain why it believes the NPL is the best approach for this particular

site.

Based on EPA’s brief statement, the public could then submit comments that address these issues. Such comments might point out the availability of other approaches to getting the site cleaned up. EPA would then consider those comments

before making a final decision on whether or not to list the site. The net result

would be a huge increase in transparency.

In sum, two aspects of the NPL listing process present room for improvement.

First, strong Headquarters management of the NPL listing process will help insure

that the NPL remains ‘‘the tool of last resort.’’ Second, greater transparency in the

listing process is also critically needed.

V. EPA Headquarters Should Have A Major Role in Making the Key Decisions About

Cleanups

After NPL listings, the next most important decisions in the Superfund program

are the selection of final cleanup plans for those NPL sites. Each year, EPA issues

new Records of Decision (‘‘RODs’’) selecting remedies for NPL sites around the country.

As a practical matter, each of these new RODs effectively imposes financial obligations on the Superfund budget for years to come. If a site has no viable PRPs,

or if the PRPs fail to step forward, then EPA eventually ends up paying for the

cleanup. In this way, each new ROD effectively controls some of Superfund’s future

spending.

Because the RODs are so important to Superfund’s budget, it would seem important to have Superfund management at EPA Headquarters review them closely in

advance before the final decisions are made. But that is not the norm today. Instead, EPA’s Regional Offices usually have the final say on these cleanup decisions.

Under a delegation of authority dating back to 1994, most new RODs are signed

by Division Directors in EPA’s Regional Offices. Review by Superfund program management at EPA Headquarters is typically very limited. For all practical purposes,

then, EPA Headquarters does not actively manage the rate at which the Superfund

program takes on new financial obligations each year.

We recommend that EPA take several actions to address this problem:

• EPA should revise its delegation of authority so that Superfund managers at

Headquarters review all, or virtually all, new RODs before they are signed;

• EPA should expand the National Remedy Review Board so it can review more

sites and help insure that future remedy decisions are both technically sound and

also (as required by section 121(a) of CERCLA) cost-effective; and

• EPA should expand its use of the Fund-balancing ARAR waiver, the ‘‘inconsistent applications of state standard’’ ARAR waiver, and the Technical Impracticability ARAR waiver to facilitate the selection and prompt implementation of costeffective remedies.

VI. EPA Should Reduce its Spending on Oversight of Work Performed by Experienced Private Parties

A decade ago, then-EPA Administrator Carol Browner recognized that EPA devotes excessive contractor dollars and excessive FTEs to monitoring the studies and

cleanup work performed by private parties (‘‘oversight’’). In a 1995 Administrative

Reform, and again in guidance a year later, Administrator Browner pledged a 25

percent reduction in oversight at sites with capable and cooperative PRPs.

Despite that 1995 proclamation, however, EPA has yet to implement the necessary across-the-board reduction in oversight spending. In fact, EPA has yet to embrace the general policy of tailoring oversight levels to reflect the experience of the

private party and its contractor, the complexity of the site, the nature and strength

of any public concern, etc.7

Moreover, EPA does not separately track its own spending on Superfund oversight, thereby limiting the potential for sound financial management. What is clear

is that EPA could free up additional resources for remedial construction by fulfilling

its 10-year-old pledge to reduce its oversight of work performed by experienced pri-
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8K. Probst, et al., Superfund’s Future—What Will It Cost? at 25, Table 2–4 (2001).

vate parties. Accordingly, we recommend that EPA take the necessary actions to reduce its oversight spending.

VII. The Removal Program Should be Refocused on Its Original Purpose of Addressing Emergency Situations

The Superfund removal action program was designed primarily to address emergency situations. Yet today, emergencies account for barely one-fourth of all removal

actions taken by EPA. The other three-fourths consist of ‘‘time-critical’’ actions,

where EPA believes work should be commenced within 6 months, and ‘‘non-timecritical’’ actions. Of the 2,440 removal actions commenced during the period from

FY 1992 through fiscal year 1999, a total of 1,892 (77.5 percent) were either ‘‘timecritical’’ or ‘‘non-time-critical’’ actions.8

Many of these non-emergency actions are undoubtedly beneficial. But it is unclear

why a continuing $250 MM/yr Federal program is needed to perform primarily nonemergency actions. Superfund removal actions should focus on those sites, orphan

or otherwise, that need immediate action to address an actual emergency.

The point here is not to launch a debate over the precise contours of the term

‘‘emergency.’’ Rather, the idea is to limit the removal program to sites that present

an emergency under some reasonable definition of that term. Most Superfund removal actions today, by EPA’s own definition, do not involve emergencies in any

sense of the term. Accordingly, the removal program should be refocused on its

original purpose. As with all of the measures that we are recommending today, EPA

can accomplish this change as a matter of policy, without the need for legislative

action or rulemaking.

STATEMENT OF ROBERT SPIEGEL, EDISON WETLANDS ASSOCIATION

Thank you for the opportunity to testify here before you. I am here to tell the

committee about how the funding shortfall in the Federal Superfund program is

putting people in danger and hurting our shared environment. Since 1989, I have

worked as the founder and executive director of Edison Wetlands Association

(EWA), the only non-profit organization in New Jersey working to get toxic sites

cleaned up in a thorough and timely manner. I personally have worked actively to

ensure the remediation of over 75 toxic sites in New Jersey, including over 20 Federal Superfund sites. With EWA’s increasing success, we have also been brought in

to help on toxic sites in other States, including New York, Nebraska and California.

As you know, funds have all but dried up for Orphan Sites, or sites that lack a

viable Responsible Party. While the U.S. Environmental Protection Agency (USEPA)

publicly states that their cleanups are on track, it is clear at many sites I work on

that work is proceeding at a far slower pace or not at all. This is especially troubling

because many of New Jersey’s Superfund sites are located in densely populated residential areas, and thus their impacts to public health and the environment are immediate and direct.

The residential factor makes the Superfund program all the more vital. As home

to the industrial corridor that helped build the entire Nation, New Jersey holds approximately one-eighth of all Federal Superfund sites, despite being the fourth

smallest State in the Nation. In fact, we can claim a number of unfortunate titles.

New Jersey is No. 1 in its 18,000 known contaminated sites, No. 1 in population

density, and No. 1 in the prevalence of cancer. As a parent and lifelong resident

of New Jersey, I cannot help but wonder how much these factors are related.

To illustrate the problem at hand, I would like to talk about one site in particular,

less than a mile from my home: the Cornell-Dubilier Superfund Site in South Plainfield, New Jersey. On the USEPA’s own Web site, Cornell-Dubilier is listed as a site

where public exposure is not under control. Now called Hamilton Industrial Park

and home to approximately 15 active businesses, the site is approximately 26 acres

and sits in a working-class residential and industrial area.

From 1936 to 1962, Cornell-Dubilier manufactured electrical components and capacitors, and they allegedly dumped PCB-containing materials directly onsite. In addition to PCBs, there are still 26 other contaminants of concern onsite, including

metals and trichloroethene. The contamination impacts onsite soil, groundwater

both onsite and offsite, and stream sediments in the Bound Brook, which flows into

the Raritan River and ultimately Raritan Bay. PCB capacitors labeled ‘‘CornellDubilier’’ were also found buried in the nearby Woodbrook Road dumpsite, which

is now a separate National Priority List Superfund Site.
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Even in the State with more contaminated sites than any other, Cornell-Dubilier

stands out. The U.S. EPA’s own risk assessment found a cancer risk in excess of

3 out of 100. At public meetings for this site, we are constantly approached by residents living nearby who ask how they can get cancer studies for their neighborhoods, which have very high prevalence of cancer and other illnesses. Likewise,

some of the highest levels of PCBs in the State are found in fish caught in the

Bound Brook adjacent to the site. Many local residents still unknowingly fish these

waters, primarily low-income residents who fish to feed their families. Some cannot

read the few signs warning of the dangers of fish consumption, which are posted

in English only.

EWA first got involved at this site after we received a phone call that children

were riding their bikes around the disposal areas in the rear of the property. We

also learned that a truck driving school was operating on one of the site’s most contaminated areas, creating toxic dust clouds that moved through the adjacent community. What amazed us is that it seemed to be common knowledge by the site

owners, elected officials and regulators that this area was highly contaminated. Yet

no one seemed willing to take the lead to protect the children or relocate the truck

driving school.

We walked the site with USEPA personnel, who recognized the site’s public exposure and wanted to work with us to have a fence installed and urge the Township

to relocate the truck driving school. Yet 21 years after USEPA first got involved

with the site, the scope of the contamination remains staggering. Following are

some of the current exposures at the site: •People still work inside the contaminated onsite buildings, including women of

child-bearing age. Dust inside the building is contaminated with high levels of

PCBs, lead and other chemicals. The USEPA calculated the Hazard Index for PCBs

alone at 150. To give you an idea of what that means, anything above 1 requires

USEPA action—and PCBs alone are 150! • Local families continue to consume fish caught from the adjacent Bound Brook,

even though they contain the some of the highest levels of PCBs in the State of New

Jersey. • Children continue to trespass on the site regularly, due to poor site security and

a lack of adequate sign postings. • Groundwater remains highly contaminated with chlorinated solvents, PCBs and

many other chemicals. USEPA still does not know the extent of the groundwater

plume, its direction or how much of an impact it has on public health. • Homes around the site still contain unacceptable levels of PCB and require additional testing and remediation. Daycare centers and other buildings around the

site were found to be contaminated enough to require remediation.

These public health risks are even more sobering when you realize that the

USEPA has had 21 years to address them. Yet after all this time, the best plan

USEPA could come up with was to leave the majority of PCB contamination onsite,

while ignoring large amounts of soil that New Jersey considers a residential hazard.

We believe the USEPA has refrained from planning a more comprehensive cleanup

because of their lack of funds.

Our engineering expert, Richard Chapin of Chapin Engineering, holds over 25

years experience in remediating contaminated sites. On our behalf, he has reviewed

USEPA plans and the underlying contamination issues at this site. His review of

the Agency’s Record of Decision (ROD) has noted the following problems:

• The ROD addresses approximately 278,000 cubic yards of PCB-contaminated

onsite soil. Yet the only soil that will definitely be removed is 7,500 cubic yards of

soil with PCBs at greater than 500 parts per million. Less than one-half of the balance will be treated, if possible, to reduce the PCB level to below 500 parts per million. The overwhelming majority of the soil will simply be left onsite under a ‘‘cap.’’

Since the estimated cost of this ‘‘cleanup’’ is over $90 million, it certainly seems like

a lot of money to do little more than covering the site.

• The ROD assumes the cap will be maintained for a 30-year period by an undefined person or corporation, and assumes that entity will readily take responsibility

for a massive deposit of PCB contamination. After that 30-year period is over, the

site simply falls into an undefined void. In essence, the USEPA is creating a major

PCB landfill.

• Site buildings are highly contaminated with PCBs, and demolition and offsite

disposal is the preferred long-term solution. Yet nothing has been done to clean up

the immediate hazards to current workers in the buildings.

• Highly contaminated groundwater is not delineated and offsite contamination

of the Bound Brook has yet to be addressed. Given the potential magnitude of these

problems, an additional $50 million could easily be required to complete the cleanup.
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Rather than wait indefinitely for the USEPA’s next action, EWA recently tested

the Bound Brook both upstream and downstream of Cornell-Dubilier. Our findings

were alarming, to say the least. While no PCBs or volatile organic compounds were

found in surface water upstream, TCE was found in surface water downstream of

the site at over 200 times the New Jersey Surface Water Quality criteria. CornellDubilier’s contaminated groundwater is uncontrolled and apparently discharging

significant amounts of TCE into the Bound Brook. Finally, we also found PCBs in

the soil of a publicly accessible bank of the Bound Brook downstream of the site

at a concentration exceeding State criteria. This area is not even addressed by

USEPA’s proposed cleanup.

While USEPA maintains that the cleanup is moving forward, this illusion is just

a house of cards ready to collapse. As the following concerns indicate, the Agency

is making a promise they cannot deliver.

• The remediation of the onsite soils and building alone is estimated to cost $90

to $100 million. With the site cleanup in final design, the USEPA has publicly stated that they expect to begin work this fall, and that funding is available to cover

the costs. Yet the Potential Responsible Parties have already indicated to the Agency that they do not have such funds. So where will the funds come from to begin

a nearly $100 million cleanup? Privately, the USEPA acknowledges that they are

unsure where those funds will come from, let alone the additional millions needed

to address the groundwater and offsite contamination.

• USEPA and their sister Agency, the Agency for Toxic Substances and Disease

Research (ATSDR), continue to allow people work in the onsite buildings despite the

extremely high levels of contaminated dust in the building. If the cleanup must be

delayed, USEPA and ATSDR should at least protect public health by immediately

closing down the building.

• Instead of this common-sense solution, USEPA has relied on cheap, unregulated

institutional controls, putting the health of the workers and their families at risk

by letting operations continue in these toxic buildings. USEPA’s lone action to address the public health concerns was to direct the property owner to have the workers wash their hands and clean their shoes before leaving the buildings. They implemented no oversight, and to this day, the Agency has not checked with the tenants

to ensure their recommendations are being followed. As a result, USEPA is continuing to allow unsuspecting workers to track toxic dust out of the buildings to potentially contaminate their homes.

• With USEPA’s glaring lack of transparency about the funding for CornellDubilier’s cleanup, we can only wonder how many communities around the country

are being led to believe there is funding available, when the Agency clearly knows

funds are scarce.

My organization is not sitting back and waiting for USEPA to win a $100 million

lottery so the cleanup of Cornell-Dubilier can begin. We are closely monitoring the

cleanup process for this disgusting nightmare of a site, and working with the New

Jersey Department of Environmental Protection, local community groups and other

non-profits like the Work Environment Council to ensure USEPA protects public

health here, as we do at other sites across New Jersey. At the Ringwood Mines/

Landfill Superfund Site, we have been successful in jump-starting the cleanup and

re-listing of this Ramapough Mountain Indian Tribe community and a State Park

where Ford Motor Company dumped toxic lead paint sludge, but this only occurred

because Ford is a viable Potential Responsible Party. And at the former Chemical

Insecticide Corp. Superfund Site (CIC) in Edison, where children once played in contaminated creeks and ‘‘green rabbits’’ once roamed with fur tinged green by a herbicide manufactured onsite, our advocacy and a successful USEPA cleanup now has

the site so clean it is slated to become a community park.

The CIC cleanup, I should note, occurred just before the Superfund ran dry. Since

then, we have noticed an alarming trend within USEPA for slower and less protective cleanups, along with fundamental and institutional changes within the Agency.

Among them are:

• A Shroud of Secrecy.—USEPA appears to have gone into a bunker mentality

when it comes to limiting public access to documents with information that impacts

public health. My organization submitted a Freedom of Information request for a

list of sites in Region 2 where exposure is not under control, but USEPA failed to

comply. While USEPA continues to mislead the public about the funding shortfall

that is affecting sites across New Jersey and the Nation, my organization works to

protect health around other Superfund sites, such as Imperial Oil in Marlborough,

Martin Aaron in Camden, and Horseshoe Road in Sayreville. But with so many

other Superfund sites across the State, we simply cannot serve as watchdog for all

of them.
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• Institutional Failure.—USEPA insiders have told us that, except under the most

egregious situations, the Agency no longer utilizes interim remedies at Superfund

sites. While interim remedies often protect human and environmental health in the

short-term, USEPA fears that taking an interim action will lower their chances of

receiving funding for their final remedies. In addition, no matter how bad the contamination levels or the public exposure, USEPA no longer finds an imminent

health threat on their sites, as that would force immediate remediation for which

there is no real funding.

• Misleading the Public.—As the Cornell-Dubilier case indicates, Agency’s public

stance has become one solely based on crisis management. From speaking to a number of USEPA case managers, while they say whatever is necessary to pacify members of the public and elected officials, privately they admit that the funding source

for all of these pending site cleanups is one giant question mark.

While we look at the vast array of environmental problems like global warming

and overdevelopment, we must not forget another inconvenient truth. Without the

Superfund tax reinstated, there will not be funding available to clean up all the Cornell-Dubiliers, and the Ringwoods, and the Omaha Leads, in the United States. I

invite you to join us in touring these sites to see their first-hand impact on children

and families, or even to tour similar Superfund sites in your State.

It is a real shame that in a country as wealthy as the United States, we cannot

protect the health of our children, our most valuable resource. With the recent

record profits for the ultra-wealthy chemical and oil industries, it is not asking too

much for polluters to pay for the cleanups of their contamination.

Superfund was a promise the Federal Government made to clean up toxic nightmares left by industry. I come before you today to ask that you keep that promise.

Without that tax and a strong commitment from you, our Nation’s trusted leaders,

the promise is broken again and again—one community at a time.
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