United States General Accounting Office

GAO Report to the Chairman, Committee on

the Budget, House of Representatives

December 1998 HAZARDOUS WASTE

SITES

State Cleanup

Practices

GAO/RCED-99-39

GAO United States

General Accounting Office

Washington, D.C. 20548

Resources, Community, and

Economic Development Division

B-281473 

December 24, 1998

The Honorable John R. Kasich

Chairman

Committee on the Budget

House of Representatives

Dear Mr. Chairman:

As of October 1998, about 1,200 of the nation’s most severely

contaminated hazardous waste sites were being cleaned up under the

Environmental Protection Agency’s (EPA) Superfund program. States are

addressing thousands of additional hazardous waste sites in their own

cleanup programs. Some of the state programs, which were originally

modeled after the Superfund program, have been adjusted over the years

to encourage more cleanups by site owners and others and to achieve

cleanups more efficiently.

This report responds to your request that we (1) identify practices that are

both used in selected state programs at sites that may be contaminated

enough to qualify for long-term cleanup under the Superfund program and

that are believed by state officials to reduce the time and expense of

cleanups, and (2) obtain the views of EPA, environmentalists, and other

stakeholders about whether the states’ practices may be applicable to the

Superfund program.

Results in Brief Hazardous waste program officials at each of the seven states we

contacted—Illinois, Massachusetts, Michigan, Minnesota, New Jersey,

Pennsylvania, and Texas1

—identified cleanup practices that they believe

lead to faster or less costly cleanup of sites and that have been applied at

sites that are sufficiently contaminated to qualify for the Superfund

program. The practices were generally used in several of the states, but

two were used in only a single state.2

 State officials said that the practices

facilitated cleanups in one of three ways. First, some practices promoted

faster decision making about how to clean up sites, that is, decisions about

which cleanup “remedies” to use. In six states, for example, a state or a

1

We selected these states’ hazardous waste remediation programs because they are among the largest

state programs in the nation and were cited by environmental policy stakeholders, such as

environmental and industry groups and EPA, as likely to have implemented practices that are different

from EPA’s. Profiles of the state programs we selected are presented in app. I. App. III lists the

stakeholders that we contacted.

2

App. II lists the states in which each practice was used.

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party responsible for site cleanup can choose cleanup remedies on the

basis of preestablished standards for maximum contaminant levels in soil

or water, without the lengthy studies of the site’s health and environmental

threats that EPA nearly always requires before remedy selection at

Superfund sites.

Second, officials of all seven states said that their programs allow less

costly cleanup remedies than the Superfund law requires, which are

nevertheless, they believe, protective of health and the environment. For

example, some of these states are more willing to accept remedies that

“contain” contaminants on site instead of removing or destroying them in

permanent remedies, so long as they prevent human or environmental

exposure.

Lastly, officials of two states said their state programs reduce litigation

costs, speed up cleanups, and improve the fairness of the cleanup process

by not holding some parties responsible for cleanup who would be liable

under the Superfund law. Although the officials provided some anecdotal

evidence illustrating the benefits of these practices, none could provide a

formal assessment of time and cost savings.

The environmental policy stakeholders that we interviewed, including EPA,

state and national environmental organizations, and representatives of

local governments, generally did not dispute that the state practices

identified can facilitate faster or less costly cleanups. Because they can

reduce costs, the state practices are generally advantageous to private

companies and others responsible for cleaning up sites. However, EPA and

environmental and local government groups said that applying some of the

practices to the Superfund program could have disadvantages. For

example, while using state-established standards to specify the end goals

of a cleanup without a site-specific risk assessment can save money, an

EPA regional official said that the use of such standards may not be suitable

at very complex sites, with numerous contaminants and possible avenues

of human exposure.

Environmental groups as well as representatives of state and local officials

noted that containment remedies leaving contamination at sites would

require controls over the use of the sites, such as restrictive zoning, to

reduce human exposure to the contaminants. These groups were

concerned that these controls might be changed over time or might not be

enforced in the long term. Some stakeholders, such as a Michigan

environmental group, opposed any changes that would lessen the liability

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of parties at Superfund sites, because the loss of their contributions to site

cleanup would increase government costs or result in fewer cleanups.

Finally, a number of stakeholders, including state officials, said that a

lessening of the Superfund program’s more rigorous cleanup requirements

or liability standards could negatively affect the state programs. They

noted that states can refer sites at which parties responsible for cleanup

refuse to comply with state requirements to EPA for possible action under

the Superfund program. The belief of responsible parties that the

Superfund requirements are more onerous than the states’ is a powerful

incentive for cooperation with state authorities that might be weakened if

the Superfund program became more like the state programs.

Background After a possible hazardous waste site is reported to EPA, it is evaluated to

determine whether it should be placed on the National Priorities List (NPL),

EPA’s list of sites that present serious threats to human health and the

environment. The cleanup at an NPL site consists of several phases. First,

through the remedial investigation and feasibility study, the conditions at a

site are studied, problems are identified, and alternative methods to clean

up the site are evaluated. Then, a final remedy is selected, and the decision

is documented in a record of decision. Next, during an engineering phase,

called the remedial design, technical drawings and specifications are

developed for the selected remedy. Finally, in the remedial action phase, a

cleanup contractor begins constructing the remedy according to the

remedial design. Under the Comprehensive Environmental Response,

Compensation, and Liability Act, (CERCLA), which established the

Superfund program, EPA must give preference to those long-term cleanup

actions that permanently and significantly reduce the volume, toxicity, or

mobility of hazardous substances at a site.3

 Under CERCLA, parties

responsible for cleaning up sites can include site owners and operators, as

well as generators and transporters of hazardous waste.

As of August 1998, 1,193 sites were listed on the NPL, and another 56 were

proposed for listing. Remedies had been constructed at 526 sites. Since the

Superfund program began, 175 sites have been deleted from the NPL. In

addition, the program has conducted about 5,000 removal

actions—short-term response actions to address emergency and other

situations—at NPL and other sites.

3

This report will refer to this concept as the “preference for permanent remedies.”

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Our reviews have shown that the Superfund cleanup process can be long

and expensive. In March 1997,4

 we reported that the cleanup of nonfederal

sites completing the cleanup process in 1996 had taken an average of 10.6

years after placement on the NPL and that remedy selection at sites

completing that phase of the cleanup process in 1996 had taken an average

of 8.1 years after a site’s listing. In September 1997,5

 we reported on a

growing number of expensive Superfund cleanups. We said that in 1996

EPA had spent $10 million or more in that year alone on nine sites, up from

two sites with the same level of annual spending in 1989. Spending on the

nine sites, which represented less than 3 percent of the sites where EPA

spent money for remedial actions, totaled about $238 million, almost

57 percent of remedial action spending at all sites.

Beginning in 1993, EPA launched a series of administrative reforms to

address a wide range of Superfund concerns. These reforms have

attempted to speed up site investigations, choose more cost-effective

remedies, reduce litigation, and make other improvements. According to

EPA officials, the reforms have begun to work. EPA officials believe that

cleanup durations have recently been reduced to an average of 8 years.6

 In

addition, the National Remedy Review Board EPA created to review

proposed site cleanup remedies, had saved $37 million as of

November 1997 through its examination of 20 remedies. EPA has also

encouraged its regions to revisit remedy decisions when new information

or technical advances indicate that the intended level of health or

environmental protectiveness might be achieved at less cost. According to

EPA, these remedy updates had saved at least $725 million at over 120 sites

as of November 1997. EPA also made it easier for parties with only minimal

responsibility for site contamination to settle their liability with lower

legal expenses.

All 50 states have established their own clean up programs for hazardous

waste sites, according to a 1998 survey by the Environmental Law

Institute.7

 Some of these state programs can handle highly contaminated

sites, whose risks could qualify them for the Superfund program, as well as

less dangerous sites. Some states initially patterned their cleanup

4

Superfund: Times to Complete the Assessment and Cleanup of Hazardous Waste Sites

(GAO/RCED-97-20, Mar. 31, 1997).

5

Superfund: Trends in Spending for Site Cleanups (GAO/RCED-97-211, Sept. 4, 1997).

6

Our report entitled Superfund: Duration of the Cleanup Process at Hazardous Waste Sites on the

National Priorities List (GAO/RCED-97-238R, Sept. 24, 1997) presents our assessment of the projected

8-year completion time for sites that began the cleanup process in fiscal years 1986 through 1994.

7

An Analysis of State Superfund Programs: 50-State Study, 1998 Update, Environmental Law Institute.

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programs after the Superfund program, but over the years, in an effort to

clean up more sites faster and less expensively, have developed their own

approaches to cleaning up sites. States accomplish cleanups under three

programs: (1) voluntary cleanup programs that allow parties to clean up

their sites without enforcement action, often to increase the site’s

economic value; (2) brownfields programs that encourage the voluntary

cleanup of sites in urban industrial areas to reuse the sites and avoid the

expansion of industry into “greenfields,” that is, undeveloped land; and

(3) enforcement programs that oversee the cleanup of the most serious

sites and force uncooperative responsible parties to clean up their sites.8

States generally use their voluntary and brownfields programs to clean up

less complex sites by offering various incentives to responsible parties,

such as reduced state oversight. Some states maintain cleanup funds to

pay all or a portion of the costs of cleanups at sites for which responsible

parties able to pay for full cleanups cannot be found.

State Practices That

Officials Believe May

Facilitate Faster, Less

Costly Hazardous

Waste Cleanups

Hazardous waste officials in each of the seven states we contacted

identified practices used at sites sufficiently contaminated to be included

in the Superfund program that they believe achieve faster and less costly

cleanups than would occur under the Superfund program. Some of these

practices are designed to facilitate faster remedy selection, thereby saving

time or money before site cleanup begins. Other practices allow the

implementation of less expensive cleanup remedies that officials believe

are nonetheless protective of human health and the environment. Two

states have adopted practices that reduce the liability of parties who might

be responsible for cleanup costs under Superfund’s liability rules. State

officials said that these practices have been applied to some state program

sites that are sufficiently contaminated to qualify for the NPL. Although the

officials described instances in which these practices have yielded

benefits, none could formally document the time and cost savings of the

practices.

States Contend

Approaches to Site

Assessment and Remedy

Selection Can Save Time

State officials from all seven states described practices that they believe

facilitate faster remedy selection at contaminated sites, including sites

contaminated enough to qualify for Superfund cleanups. These officials

said that the use of preestablished cleanup standards or of presumptive

remedies, that is, remedies proven to be effective for certain cleanup

problems, without extensive consideration of alternate remedies, can

8

EPA has provided seed money for the development of voluntary state cleanup programs and provided

support for the development of brownfields programs.

Page 5 GAO/RCED-99-39 Hazardous Waste Sites
B-281473 

expedite remedy selection. Officials of five states said that more flexible

public involvement requirements can save time when cleanups are not

controversial.

Fixed Standards for Soil and

Groundwater

Officials representing six state programs said that selecting cleanup

remedies for sites on the basis of preestablished standards that specify the

maximum concentrations of contaminants in soil and water after cleanup,

without conducting time-consuming, site-specific risk assessments, speeds

up the remedy-selection process. Illinois, for example, allows the use of

“look-up tables” that specify maximum concentration levels for about 150

specific soil and groundwater contaminants.9

 These look-up tables,

according to the state officials, quickly and clearly defined the end goal of

the site cleanup without a risk assessment, allowing the state and the

responsible parties to determine how best to achieve this standard.

According to the state officials, the use of the statewide standards offers a

time savings when compared to the approach that the sites in EPA’s

Superfund program follow. EPA has developed a few soil cleanup standards

and may in certain circumstances apply standards from its water programs

and state standards at Superfund sites; however, the Superfund

regulations require that each site receive a baseline risk assessment

showing the need for action. These risk assessments characterize the

current and potential threats to human health and the environment posed

by contaminants at the site. Officials in both Illinois and Pennsylvania said

that eliminating risk assessments can save considerable time. According to

an Illinois official, while the duration of risk assessments varies by site, a

risk assessment can add as much as 2 years to the remedy-selection

process, while a Pennsylvania official said that many months can be saved.

More Limited Public

Involvement Efforts

Officials in five states said that, in comparison to EPA, they have less

rigorous requirements for extensive public involvement in remedy

selection. According to New Jersey program officials, state law requires

that program officials notify local officials—such as the mayor’s office or

the municipal health department—about an impending site cleanup. The

state then generally defers the decision about public meetings or other

more extensive forms of public outreach to local officials. State officials

explained that more extensive public involvement measures are not

9

In the states that we contacted, this reliance on preestablished standards was typically one of several

approaches the state and responsible parties could take to develop a site remedy. For example, under

Pennsylvania law, the standards are one of three overall approaches to site cleanup. Other options

included cleaning up the site to background standards, i.e., restoring the site to conditions that existed

before the contamination occurred, and site-specific standards, which require detailed risk

assessment.

Page 6 GAO/RCED-99-39 Hazardous Waste Sites
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required—although the state may pursue them if it sees the need—because

public meetings are often sparsely attended, and the results of such efforts

do not justify the time and resources required.

New Jersey’s approach contrasts with EPA’s more extensive public

involvement requirements. The Superfund program’s regulations require

that at each NPL site, EPA develop a community relations plan describing a

community’s information needs and outlining ways that the agency will

meet these needs. Furthermore, EPA must notify groups affected by the site

of the availability of technical assistance grants that can be used to hire

experts to explain technical information about the site. EPA must also

allow adequate opportunity for public comment, such as at a public

meeting. A transcript of the public meeting must be made available to the

public as well. The final cleanup plan must include a response to each

significant comment and question received. EPA headquarters officials said

that they could tailor community involvement procedures at sites,

depending on the circumstances, but according to the officials, the

minimum EPA requirements exceeded the simple notice procedures New

Jersey used.

Greater Use of Presumptive

Remedies

Texas officials said that their program’s greater use of standard cleanup

approaches—known as presumptive remedies—has significantly reduced

the time and expense involved in the remedy-selection process.

Presumptive remedies are remedies that have proven effective in cleaning

up a particular kind of hazardous waste site and would presumably work

at similar sites in the future. Such remedies can be viewed as off-the-shelf

solutions that can be selected with less study of alternative remedies in the

absence of site-specific conditions requiring such consideration. Because

presumptive remedies allow the state to focus quickly on one or a limited

range of remedies, they can save considerable time and expense in the

remedy-selection process. On the basis of a comparison of a limited

number of state sites, Texas officials estimated that the studies at

presumptive remedy sites were less than half as costly as the full

feasibility studies that were conducted at other sites. Officials of three

other states said that they also had a greater number of presumptive

remedies than did EPA.

EPA has also developed presumptive cleanup remedies for some types of

NPL sites. However, as table 1 indicates, Texas has developed presumptive

remedies for four contaminants—metals, semivolatile organic compounds,

Page 7 GAO/RCED-99-39 Hazardous Waste Sites
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pesticides, and polychlorinated biphenyls (PCB)—for which EPA has not.10

These contaminants are frequently found at Superfund sites.

Table 1: Comparison of EPA’s and

Texas’s Presumptive Remedies Has agency established a presumptive remedy for

corresponding contaminant or type of site?

Type of sites EPA Texas

Metals No Yes

Volatile organic compounds Yes Yes

Semivolatile organic

compounds No Yes

Pesticides No Yes

PCBs Noa Yes

Municipal landfills Yes Nob

Wood treater sites Yes Nob

Note: Both Texas and EPA have established a presumptive remedy for groundwater as well.

aEPA officials said that the regulations promulgated under the Toxic Substances Control Act

provide EPA with guidance similar to a presumptive remedy for PCBs.

bTexas officials said that the state’s contaminant-specific presumptive remedies generally cover

municipal landfills and wood treater sites.

Source: Prepared by GAO from EPA’s and Texas Natural Resource Conservation Commission’s

data.

Potential for Cleaning Up

Sites at Lower Costs

Some states have adopted two practices that state officials believe result

in less expensive remedies than those used in the Superfund program and

that could be useful even at highly contaminated sites. These practices are

(1) greater acceptance of remedies that contain waste on site rather than

removing or destroying it and (2) more willingness to assume that sites

will be used for industrial or commercial rather than residential purposes.

Acceptance of Containment

Remedies

State officials in Illinois, Pennsylvania, and Texas told us that their states’

authorizing statutes do not contain a preference for permanent cleanup

remedies.11 Permanent cleanup remedies are those that remove or treat

the principal waste threats, permanently eliminating hazardous waste from

the site or reducing the volume, toxicity, or mobility of the waste, through

10EPA officials said that they expect to issue a presumptive remedy for metals in soil in early 1999.

11Officials in Michigan, Minnesota, and New Jersey told us that although their state laws contain

preferences for permanence in cleanup remedies, other considerations, such as costs, risk, and future

land use, limit the applicability of the preference. Officials in Massachusetts said that their authorizing

statute also contains a preference for permanence but not treatment and that containment remedies

could be considered permanent if properly monitored and maintained.

Page 8 GAO/RCED-99-39 Hazardous Waste Sites
B-281473 

techniques such as incineration or bioremediation.12 Because the state

programs lack such preferences, more nonpermanent containment

cleanup remedies may be used. Nonpermanent remedies typically prevent

human contact with contaminants by containing the waste in place—by,

for example, placing a clay cap or a parking lot over contaminated soil,

restricting the land’s use, or placing barriers around the contamination.

These remedies tend to be less expensive to implement than permanent

ones.

Although the states had no studies documenting cost reductions from

containment remedies, some officials did cite cases in which cost savings

resulted. Pennsylvania officials described how a change in the state

cleanup statute that eliminated a preference for permanence had reduced

cleanup costs for a site. The remedy proposed by the state for the site

under the old statute—a $30 million- to $40 million-permanent remedy

consisting of the excavation and treatment of contaminants—was changed

with the passage of the new statute to an excavation and containment

remedy with a cost of $2 million to $3 million. According to state officials,

containment remedies remain protective of human health and the

environment if properly controlled and maintained. We reported in

April 1997 that cleanup managers for Illinois, Minnesota, and New Jersey

estimated that containment methods were used for at least half of the

cleanups of contaminated soil in their voluntary cleanup programs.13

In contrast, the Superfund program operates under the requirements of

CERCLA, which establishes a preference for permanent remedies. EPA’s

remedy-selection criteria require the selection of a permanent remedy to

the maximum extent practicable, though other factors, such as cost and

implementation concerns must also be taken into account. EPA officials

said that they attempt to adhere to the preference whenever possible. EPA

officials also noted that in recent years the agency has moved away from a

“treatment for treatment’s sake” approach to one of applying treatment to

principal threats. Principal threats include liquids, areas contaminated

with high concentrations of toxic compounds, and highly mobile materials.

According to a September 1997 EPA analysis, between 1988 and 1993,

70 percent of all remedies dealing with the source of contamination

involved treatment, while in 1995, this number dropped to 53 percent.

Where contaminants are left on site, EPA requires periodic site reviews to

12Incineration destroys waste by controlled burning at high temperatures, and bioremediation uses

living organisms to remove pollutants from the soil, water, or wastewater.

13Superfund: State Voluntary Programs Provide Incentives to Encourage Cleanups (GAO/RCED-97-66,

Apr. 9, 1997).

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monitor and analyze the implementation and effectiveness of the

containment remedies.

Consideration of Future Land

Use

Some of the states believed that, in setting cleanup standards and selecting

remedies, their cleanup programs were more likely than Superfund to

determine that sites would be used for future industrial or commercial

purposes rather than for residential purposes. The determination of how

sites will be used in the future is important because a site whose expected

use is industrial or commercial may be cleaned to less strict standards,

resulting in less costly cleanups. The states that believe they base site

cleanups on assumptions of industrial or commercial uses more readily

than EPA have established specific cleanup standards for industrial sites.

Until several years ago, EPA generally assumed that a residential use of

land was possible in the future, unless there was substantial evidence to

the contrary. Because EPA cannot control local zoning or other institutional

controls that restrict the land’s use, its guidance suggested that those

assessing the sites’ risk assume that in the future the land would be

residential even though no one was living there at the time. Critics

contended that EPA was assuming residential uses for sites that would be

used solely for industrial purposes in the foreseeable future. In 1995,

however, EPA issued new guidance for considering future land use in

making remedy selection decisions at NPL sites. The guidance encouraged

parties cleaning up sites to collect as much information as possible about

the site’s future use and to obtain the local community’s consensus

regarding its future. Furthermore, EPA officials believe that as a result of

this policy, EPA has evolved toward a new balancing of the various

mandates contained in CERCLA and that now EPA is as likely as the states to

opt for nonresidential future land-use scenarios. An EPA analysis found that

only 38 percent of remedies selected in 1995 included residential land-use

scenarios.

States did not have data to confirm their beliefs that they base cleanup

decisions on future industrial or commercial uses of sites more often than

does EPA. However, our April 1997 report noted that voluntary cleanup

programs in four of the states we covered in our current review used

industrial standards most frequently for their cleanups.14 Some states

believed that EPA’s requirement for obtaining a local community’s

consensus on the future uses of sites could make it more difficult to

consider a land use other than residential. EPA officials, however, believe

14Superfund: State Voluntary Programs Provide Incentives to Encourage Cleanups (GAO/RCED-97-66,

Apr. 9, 1997).

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that early community involvement, with a particular focus on the

community’s desired future use of the property associated with an NPL site,

can result in a more democratic decision-making process; greater

community support for remedies selected as a result of this process; and

more expedited, cost-effective cleanups. In addition, EPA officials said that

communities were willing to accept cleanups based on continued

nonresidential uses of sites.

State Liability Policies Are

Intended to Reduce

Litigation and Speed Up

Cleanups

Two of the states we surveyed had adopted policies on the cleanup

liability of parties associated with sites that they believed reduce litigation

costs and encouraged faster cleanups. These policies involved reducing

the liability of site owners and operators for cleanups and making the

cleanup of municipal landfills a state responsibility.

Michigan Limits Liability for

Owners and Operators

A Michigan law adopted in 1995 provides that the owners and operators of

contaminated sites are liable only if they are responsible for an activity

causing a release of hazardous substances into the environment. By

contrast, under CERCLA, responsible parties—including owners and

operators—are liable regardless of whether they actually caused the

release. Thus, anyone seeking to recover cleanup costs under Michigan

law from owners and operators must prove causation, while parties

seeking to recover cleanup costs under CERCLA generally need not address

the issue.

The causation standard, according to a state official, results in more

expeditious cleanups of facilities because it reduces litigation and

transaction costs and disruptions or delays. In addition, a Michigan survey

of 33 municipalities indicated that the causation standard has facilitated

the redevelopment of sites. A state official also noted, however, that some

fraction of the contaminated sites that would have been cleaned up by

owners and operators under a strict liability standard may need to be

addressed at public expense.

Minnesota Assumes Cost of

Closed Municipal Landfills

Minnesota state officials cited the state’s Closed Landfill Program as a

better way to clean up and care for landfills and protect innocent parties.

Under this program, the state performs cleanup actions, takes over the

long-term operation and maintenance of the cleanup remedy, and

reimburses eligible parties for past cleanup costs. Although this approach

is costly to the state, which assumes the cost of remediating the site, it

reduces litigation costs and protects parties that may have made a very

small contribution to site contamination but that could be caught up in

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litigation if all contributors were liable. According to state officials, it is

difficult to assign responsibility to the many parties that contribute to the

contamination of municipal landfills, and very small contributors often

face potentially bankrupting lawsuits. State officials said that it is

preferable that the cost of addressing the problems of closed landfills be

viewed as a societal cost. The officials said that Minnesota is the only state

that has adopted this program, and it has signed an agreement with EPA to

end federal involvement in 10 closed landfills on the NPL within the state.

In contrast, EPA’s “polluter pays” approach, according to Minnesota

officials, does not work well for most landfills, where a large portion of the

waste comes from many small businesses and households. However, EPA is

currently mitigating the impact of Superfund liability on the smallest

contributors by offering expedited or low-cost settlements to parties that

contribute small amounts of hazardous substances. These settlements

protect the parties from further litigation.

EPA and Other

Stakeholders

Identified Potential

Disadvantages of

Applying State

Practices to the

Superfund Program

Environmental policy stakeholders that we interviewed, including EPA,

state and national environmental organizations, and representatives of

state and local government associations, generally did not dispute that the

state practices had the efficiency benefits described by state officials.

Some of the environmental organizations and a local government

organization, however, identified potentials risks of applying these

practices to the Superfund program. Since the state practices can reduce

cleanup costs, they are generally advantageous for businesses and others

responsible for cleaning up sites. (See app. III for the list of stakeholders

that we contacted.)

Stakeholders’ Views on

State Practices That Could

Facilitate Faster Remedy

Selection

The stakeholders that we contacted generally supported the broader use

of presumptive remedies in the Superfund program. A representative of

Resources for the Future (RFF), an independent environmental research

organization, said that the use of presumptive remedies where particular

contaminants predominate—as Texas does for pesticides, PCBs and

semivolatile organic compounds—is a sound approach because there are

only a limited number of ways to deal with certain contaminants. A

representative of citizens groups and environmental organizations in

Texas noted that presumptive remedies can make sense, as long as the

remedies that have been designed are truly protective. Similarly, the

representatives of an environmental organization cautioned that the value

of presumptive remedies depends on the level of protection they provide.

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EPA officials cited another advantage of presumptive remedies: consistency

in remedy selection from site to site.

The stakeholders were more cautious about the use of preestablished

standards to specify the goal of the remediation process without a

site-specific risk assessment and with reduced public involvement. EPA

regional officials believed that the use of the automatically applied

standards without a risk assessment is more appropriate for sites that

have fairly simple contamination problems, but would not be appropriate

for the very large and complex sites that come under the Superfund

program. Superfund sites can be over 100 acres, with 30 contaminant

sources and 100 different contaminants, and according to EPA officials,

using a look-up table would be too simplistic an approach to remedy

selection at such sites. These tables are based on assumptions about

exposure to contaminants that they said needed to be verified at more

complex sites through a risk assessment. An Illinois official said, however,

that the preestablished standards could be appropriate for portions of

complex sites, even if they could not be used throughout the site.

Other stakeholders were not familiar with the details of the state cleanup

standards. However, a representative of RFF said that while the standards

may reduce debate about appropriate cleanup levels, there is a tradeoff

involved if the standard is not sufficiently protective of public health.

Representatives of the Sierra Club said that use of look-up tables to define

the end goal can be overly simplistic, and it was important that parties

responsible for the original contamination remain liable if events prove

that the cleanup to specified standards was not adequate.

Regarding reduced requirements for public involvement based on a

presumed lack of public interest, an EPA regional official said that low

attendance at meetings arranged for public input may be less a reflection

of public indifference than a sign that the public has not been sufficiently

informed of issues surrounding a contaminated site. This official said that

it is necessary to be very proactive in public outreach efforts. For example,

he said that it may be necessary to contact churches in order to reach

some ethnic communities. A representative of an environmental

organization noted that while limiting public involvement may conserve

resources in the short term, it may lead to greater costs in the long run if

members of the public believe that they have been excluded from the

process and decide to litigate. The representative emphasized that the

Superfund cleanup process should produce no surprises, and an effective

public involvement effort is critical.

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Stakeholder’s Views on

Practices That Could Lead

to Lower-Cost Remedies

The representatives of the environmental groups and others that we

contacted, such as the Sierra Club, John Snow Institute, RFF, and EPA

regions, generally believed that the states’ lack of preference for

permanent cleanup remedies and their greater readiness to consider that

sites will not be used for residential purposes in the future tend to weaken

the long-term effectiveness of site remediation programs. These groups

were concerned that nonpermanent remedies, like clay caps designed to

isolate contaminants, would not be maintained over time, and that

institutional controls, like zoning or deed restrictions needed to prevent

the residential or other higher-risk use of sites, would be changed or not

enforced. Representatives of the International City/County Management

Association (ICMA) said that the land-use and other institutional controls

required by nonpermanent remedies require better cooperation and

communication between state and local governments than often currently

exists. Furthermore, according to an ICMA representative, a recent ICMA

focus group indicated that many state and local officials do not fully

appreciate the long-term demands—including oversight and

enforcement—that institutional controls may place upon local

governments. According to an EPA official, some contaminants cannot be

contained over the long term (50 to 100 years) and that Superfund’s

preference for permanent cleanup remedies is necessary for such

long-term protection. In addition, EPA officials said that the costs of

long-term operations and maintenance of nonpermanent remedies may

partially offset initial cost savings.

A report by RFF conducted under a grant from EPA,

15 discussed the

implications of basing remedy selection on land-use assumptions. The

report stated that land-use categories (such as residential, industrial, and

commercial) are used to estimate the future exposure of people to

contaminants; yet the relation between land use and exposure is often not

known and may vary widely. Anticipating the likely future use of a site is

no easy task, according to the report, given the competing interests that

want different land uses. The report noted that EPA does not have the

authority to ensure that local land-use controls are maintained and

enforced over time at sites where residual contamination precludes

unrestricted use. Local land-use restrictions are typically the province of

local government and private property law. The report observed that

land-use controls are subject to various pressures, such as demands for

property development, that may limit their effectiveness. Two major

challenges result from a cleanup policy linking land use to remedy

selection, according to the report: first, how to involve the public more

15Resources for the Future, Linking Land Use And Superfund Cleanups: Unchartered Territory (1997).

Page 14 GAO/RCED-99-39 Hazardous Waste Sites
B-281473 

effectively in cleanup and reuse decisions, and second, how to ensure the

effectiveness of property-use restrictions when the legal authority for such

controls is the private property laws of each state.

Stakeholders’ Views on

State Liability Practices

Some stakeholders were not supportive of the changes Michigan made in

its liability provision. A representative of the Michigan Environmental

Council said that causation would increase public expense for cleanup and

that because there would be fewer responsible parties available for

cleanup, fewer contaminated sites would be remediated. According to an

EPA official, CERCLA establishes a defense to liability for innocent

landowners who obtain property without knowing that it was

contaminated, despite taking due care to discover potential contaminants.

However, an EPA official acknowledged that owners are generally unable

to qualify for this defense because it is rare that an in-depth investigation

of a contaminated site would not detect the contamination.

While not disagreeing with Minnesota’s policy of assuming the cost of

closed municipal landfills, representatives of the Sierra Club said that it is

important that the policy not be extended to privately owned landfills

because this would burden the taxpayers with costs that are the

responsibility of a private party. EPA officials said that Minnesota’s

approach is a potentially very costly program from the government’s

standpoint, and EPA could probably not afford to adopt such a policy

without significant additional funding.

Views on the Importance

of the Superfund Program’s

Continued Role

Several state officials told us that, although they believe the practices of

their state programs facilitate faster and less costly cleanup, they also

wanted to stress the importance of an ongoing Superfund program. For

example, officials in Massachusetts said that the existence of the federal

program, with what they characterized as more daunting requirements and

procedures than exist in state programs, was an important element in

obtaining the cooperation of responsible parties in the state program. If

these parties are not cooperative and the site is sufficiently dangerous,

responsible parties risk being brought into the Superfund program.

Agency Comments We provided a draft of this report to EPA for its review and comment. We

spoke with EPA officials, including the Director of the State, Tribal, and

Site Identification Center, in EPA’s Office of Solid Waste and Emergency

Response, to obtain the agency’s comments. EPA generally agreed with the

Page 15 GAO/RCED-99-39 Hazardous Waste Sites
B-281473 

description of the Superfund practices presented in the report but made

technical comments and corrections, which we incorporated as

appropriate. In addition, EPA officials said that the agency’s recent

administrative reforms had reduced the cost and duration of Superfund

cleanups. The officials provided us with data on the cost and time savings

achieved by certain of these reforms,which we included in our report. EPA

also believed that the report should highlight the fact that containment

remedies require long-term management and monitoring and may fail

without such attention. We pointed out that this issue was addressed in

the report’s section summarizing stakeholders’ views.

We also provided selected portions of this report to officials responsible

for the state programs we discussed. We incorporated state comments and

corrections as necessary.

Scope and

Methodology

To identify practices that may facilitate cleanups of hazardous waste sites

that are faster or less costly in comparison with the federal Superfund

program, we selected seven states—Illinois, Massachusetts, Michigan,

Minnesota, New Jersey, Pennsylvania, and Texas—with cleanup programs

that are among the largest in the nation and that were recommended by

various stakeholders—including EPA, industry organizations, and

environmental groups—as states that had implemented time- and

cost-saving practices. We then conducted interviews with these states’

program officials, who identified and described program practices that, in

comparison with the practices of the federal Superfund program, they

believe facilitated faster or less costly cleanup of hazardous waste sites.

We also reviewed pertinent laws, regulations, and other available

documentation describing these practices. We did not independently verify

the officials’ statements regarding time and cost savings.

To identify issues that should be considered before these practices would

be adopted by the Superfund program, we talked with officials from

environmental and local governmental organizations, and EPA regional and

headquarters offices. Where possible, we obtained references to these

organizations from states and EPA. We interviewed officials in each of EPA’s

regional offices whose jurisdiction includes the selected states,

environmental groups in the selected states, and national environmental

groups.

We conducted out work from July through December 1998 in accordance

with generally accepted government auditing standards.

Page 16 GAO/RCED-99-39 Hazardous Waste Sites
B-281473 

As arranged with your office, unless you publicly announce its contents

earlier, we plan no further distribution of this report until 10 days from its

date. At that time, we will send copies of this report to appropriate

congressional committees; interested Members of Congress; the

Administrator of EPA; state program managers; and other interested

parties. We will also make copies available to others upon request.

Please call me at (202) 512-6111 if you or your staff have any questions.

Major contributors to this report are listed in appendix IV.

Sincerely yours,

David G. Wood

Associate Director, Environmental

 Protection Issues

Page 17 GAO/RCED-99-39 Hazardous Waste Sites
Contents

Letter 1

Appendix I 

State Program

Profiles as of Fiscal

Year 1997

20

Appendix II 

State Practices That

State Officials Believe

Facilitate Faster or

Less Costly

Hazardous Waste Site

Cleanup

21

Appendix III 

List of Organizations

GAO Contacted

22

Federal Agencies 22

State Agencies 22

Environmental Organizations 22

Industry Organizations 22

State and Local Government and Other Organizations 22

Appendix IV 

Major Contributors to

This Report

23

Table Table 1: Comparison of EPA’s and Texas’s Presumptive

Remedies

8

Page 18 GAO/RCED-99-39 Hazardous Waste Sites
Contents

Abbreviations

CERCLA Comprehensive Environmental Response, Compensation,

and Liability Act

EPA Environmental Protection Agency

GAO General Accounting Office

ICMA International City/County Management Association

NPL National Priorities List

PCB poly-chlorinated biphenyls

RFF Resources for the Future

Page 19 GAO/RCED-99-39 Hazardous Waste Sites
Appendix I 

State Program Profiles as of Fiscal Year

1997

State

Date program

established Principal statutes State agency

Responsible

program office

Staff employed/

authorizeda

Illinois 1970 Environmental Protection Act

Responsible Property

Transfer Act

Environmental

Protection Agency

Bureau of Land,

Division of

Remedial

Management 105/105

Massachusetts 1983 Massachusetts Oil and

Hazardous Material Release

Prevention and Response Act

Department of

Environmental

Protection

Bureau of Waste

Site Cleanup

203/230

Michigan 1982 Michigan Natural Resources

and Environmental Protection

Act

Department of

Environmental

Quality

Environmental

Response Division

240/249

Minnesota 1993 Environmental Response and

Liability Act

Pollution Control

Agency

Hazardous Waste

Division 80/80

New Jersey 1976 Spill Compensation and

Control Act

Industrial Site/Recovery Act

Brownfield and Contaminated

Site Remediation Act

Water Pollution Control Act

Solid Waste Management Act

Underground Storage Tank

Act

Department of

Environmental

Protection

Division of Publicly

Funded Site

Remediation, Site

Remediation

Program

512/512

Pennsylvania 1988 Hazardous Sites Cleanup Act

Land Recycling and

Environmental Remediation

Standards Act

Department of

Environmental

Protection

Bureau of Land

Recycling and

Waste

Management,

Division of Land

Recycling and

Cleanup Programs 120/120

Texas 1985 Solid Waste Disposal Act

Hazardous Substances Spill

Prevention and Control Act

Natural Resource

Conservation

Commission

Office of Waste

Management,

Pollution

Remediation

Division 106/107

aExpressed as full-time equivalents.

Source: GAO summary of information compiled by the Environmental Law Institute.

Page 20 GAO/RCED-99-39 Hazardous Waste Sites
Appendix II 

State Practices That State Officials Believe

Facilitate Faster or Less Costly Hazardous

Waste Site Cleanup

Practice Illinois Massachusetts Michigan Minnesota New Jersey Pennsylvania Texas

Faster remedy selection

Use of state standards

documented in look-up tables

as alternative to risk

assessment X X X X X X

Less rigorous requirements for

public involvement X X X X X

Greater number of

presumptive remedies X X X X

Use of faster or less costly

remedies

No preference for permanence X X X

Greater likelihood to determine

that future site land use will be

nonresidential X X X X X X

Liability practices

Causation liability X

State assumes full cost of

landfill cleanups X

Source: GAO summary of information provided by state officials.

Page 21 GAO/RCED-99-39 Hazardous Waste Sites
Appendix III 

List of Organizations GAO Contacted

Federal Agencies Environmental Protection Agency — Headquarters

Environmental Protection Agency offices in regions I, II, III, V, and VI

State Agencies Illinois Environmental Protection Agency

Massachusetts Department of Environmental Protection

Michigan Department of Environmental Quality

Minnesota Pollution Control Agency

New Jersey Department of Environmental Protection

Pennsylvania Department of Environmental Protection

Texas Natural Resources Conservation Commission

Environmental

Organizations

The John Snow Institute, Center for Environmental Health

Michigan Environmental Council

Sierra Club, Headquarters

Sierra Club, State Chapters in Minnesota and Pennsylvania

Industry

Organizations

Chemical Manufacturers Association1

DuPont1

U.S. Chamber of Commerce1

State and Local

Government and

Other Organizations

Association of State and Territorial Solid Waste Management Officials1

Environmental Council of the States1

Environmental Law Institute1

International City/County Management Association

Environmental Technology Council

Henry, Lowerre, Johnson, Hess and Frederick (Law firm

 representing environmental and community groups in Texas)

International City and County Managers Association

Resources for the Future

1

We contacted this organization in a preliminary phase of our work in order to obtain its views on the

best states to survey.

Page 22 GAO/RCED-99-39 Hazardous Waste Sites
Appendix IV 

Major Contributors to This Report

Resources,

Community, and

Economic

Development Division

Washington, D.C.

James Donaghy

Chicago

Harriet Drummings

Michael Hartnett

Jim Musial

Raleigh

Mary Crenshaw

Office of the General

Counsel

Richard Johnson

(160454) Page 23 GAO/RCED-99-39 Hazardous Waste Sites
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