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41–517 CC 1997

GAO FINDINGS ON SUPERFUND CLEANUP

HEARING

BEFORE THE

SUBCOMMITTEE ON NATIONAL ECONOMIC GROWTH,

NATURAL RESOURCES, AND REGULATORY AFFAIRS

OF THE

COMMITTEE ON GOVERNMENT

REFORM AND OVERSIGHT

HOUSE OF REPRESENTATIVES

ONE HUNDRED FIFTH CONGRESS

FIRST SESSION

FEBRUARY 13, 1997

Serial No. 105–15

Printed for the use of the Committee on Government Reform and Oversight

(

(II)

COMMITTEE ON GOVERNMENT REFORM AND OVERSIGHT

DAN BURTON, Indiana, Chairman

BENJAMIN A. GILMAN, New York

J. DENNIS HASTERT, Illinois

CONSTANCE A. MORELLA, Maryland

CHRISTOPHER SHAYS, Connecticut

STEVEN SCHIFF, New Mexico

CHRISTOPHER COX, California

ILEANA ROS-LEHTINEN, Florida

JOHN M. MCHUGH, New York

STEPHEN HORN, California

JOHN L. MICA, Florida

THOMAS M. DAVIS, Virginia

DAVID M. MCINTOSH, Indiana

MARK E. SOUDER, Indiana

JOE SCARBOROUGH, Florida

JOHN SHADEGG, Arizona

STEVEN C. LATOURETTE, Ohio

MARSHALL ‘‘MARK’’ SANFORD, South

Carolina

JOHN E. SUNUNU, New Hampshire

PETE SESSIONS, Texas

MIKE PAPPAS, New Jersey

VINCE SNOWBARGER, Kansas

BOB BARR, Georgia

——— ———

HENRY A. WAXMAN, California

TOM LANTOS, California

ROBERT E. WISE, JR., West Virginia

MAJOR R. OWENS, New York

EDOLPHUS TOWNS, New York

PAUL E. KANJORSKI, Pennsylvania

GARY A. CONDIT, California

CAROLYN B. MALONEY, New York

THOMAS M. BARRETT, Wisconsin

ELEANOR HOLMES NORTON, Washington,

DC

CHAKA FATTAH, Pennsylvania

TIM HOLDEN, Pennsylvania

ELIJAH E. CUMMINGS, Maryland

DENNIS KUCINICH, Ohio

ROD R. BLAGOJEVICH, Illinois

DANNY K. DAVIS, Illinois

JOHN F. TIERNEY, Massachusetts

JIM TURNER, Texas

THOMAS H. ALLEN, Maine

———

BERNARD SANDERS, Vermont

(Independent)

KEVIN BINGER, Staff Director

DANIEL R. MOLL, Deputy Staff Director

JUDITH MCCOY, Chief Clerk

PHIL SCHILIRO, Minority Staff Director

SUBCOMMITTEE ON NATIONAL ECONOMIC GROWTH, NATURAL RESOURCES, AND

REGULATORY AFFAIRS

DAVID MCINTOSH, Indiana, Chairman

JOHN E. SUNUNU,

J. DENNIS HASTERT, Illinois

JOE SCARBOROUGH, Florida

JOHN B. SHADEGG, Arizona

STEVEN LATOURETTE, Ohio

VINCE SNOWBARGER, Kansas

BOB BARR, Georgia

——— ———

BERNARD SANDERS, Vermont

JOHN F. TIERNEY, Massachusetts

JIM TURNER, Texas

PAUL E. KANJORSKI, Pennsylvania

GARY A. CONDIT, California

DENNIS KUCINICH, Ohio

CHAKA FATTAH, Pennsylvania

EX OFFICIO

DAN BURTON, Indiana HENRY A. WAXMAN, California

MILDRED WEBBER, Staff Director

CHIP GRIFFIN, Professional Staff Member

CINDI STAMM, Clerk

DAVE MCMILLEN, Minority Professional Staff Member

(III)

C O N T E N T S

Page

Hearing held on February 13, 1997 ....................................................................... 1

Statement of:

Guerrero, Peter, Director, Environmental Protection Issues, Resources,

Community and Economic Development Division, General Accounting

Office, accompanied by Stanley Czerwinski, Associate Director; Jim

Donaghy, Assistant Director; Mitchell Karpman, mathematical statistician; and Elliot Laws, Assistant Administrator for Solid Waste and

Emergency Response .................................................................................... 105

Klemm, Rebecca J., Ph.D., Klemm Analysis Group; and James Wholey,

Senior Advisor for Evaluation Methodology, General Accounting Office . 180

Mica, Hon. John L., a Representative in Congress from the State of

Florida ............................................................................................................ 176

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

of New Jersey ................................................................................................ 32

Parris, Don, president, Environmental Remediation Consultants, Inc.;

Richard Castle, president, Castle Concepts Consultants; and John F.

Lynch, Jr., senior partner, Carpenter, Bennett, and Morrissey ............... 49

Letters, statements, etc., submitted for the record by:

Guerrero, Peter, Director, Environmental Protection Issues, Resources,

Community and Economic Development Division, General Accounting

Office, prepared statement of ....................................................................... 108

Klemm, Rebecca J., Ph.D., Klemm Analysis Group, prepared statement

of ..................................................................................................................... 182

Laws, Elliot, Assistant Administrator for Solid Waste and Emergency

Response:

Information concerning methodologies used by EPA ............................. 162

Prepared statement of ............................................................................... 124

Lynch, John F., Jr., senior partner, Carpenter, Bennett, and Morrissey,

prepared statement of ................................................................................... 61

McIntosh, Hon. David M., a Representative in Congress from the State

of Indiana, prepared statement of ............................................................... 4

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

of New Jersey, prepared statement of ......................................................... 36

Parris, Don, president, Environmental Remediation Consultants, Inc.,

and Richard Castle, president, Castle Concepts Consultants, prepared

statement of ................................................................................................... 52

Sanders, Hon. Bernard, a Representative in Congress from the State

of Vermont, prepared statement of .............................................................. 19

Waxman, Hon. Henry A., a Representative in Congress from the State

of California:

Briefing memorandum for hearing .......................................................... 41

Certification of non-receipt of Federal funds .......................................... 46

Prepared statement of ............................................................................... 24

(1)

GAO FINDINGS ON SUPERFUND CLEANUP

THURSDAY, FEBRUARY 13, 1997

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON NATIONAL ECONOMIC GROWTH,

NATURAL RESOURCES, AND REGULATORY AFFAIRS,

COMMITTEE ON GOVERNMENT REFORM AND OVERSIGHT,

Washington, DC.

The subcommittee met, pursuant to notice, at 9:15 a.m., in room

2154, Rayburn House Office Building, Hon. David M. McIntosh

(chairman of the subcommittee) presiding.

Present: Representatives McIntosh, Sununu, Shadegg, Snowbarger, Barr, Sanders, Waxman, Fattah, Kucinich, Turner, and

Tierney.

Staff present: Mildred Webber, staff director; Todd Gaziano, chief

counsel; Larisa Dobriansky, senior counsel; Chip Griffin, professional staff member; Cindi Stamm, clerk; Phil Barnett, minority

chief counsel; Phil Schiliro, minority staff director; Elizabeth

Mundinger, minority counsel; David McMillen, minority professional staff member; and Ellen Rayner, minority chief clerk.

Mr. MCINTOSH. A quorum being present, the Subcommittee on

National Economic Growth, Natural Resources, and Regulatory Affairs will come to order. As I have previously informed the ranking

member, Mr. Waxman, we will limit opening statements to the

chairman and the ranking member of the subcommittee.

Mr. WAXMAN. Mr. Chairman, it has been the tradition of every

subcommittee that I’ve served on that all Members are given the

opportunity for a brief opening statement. Yesterday, I attended

the Health and Environment Subcommittee, chaired by Mr. Bilirakis. We had extensive comments by the Members. Each Member

was given the courtesy to say what they had to say and they were

able to lay out their concerns.

I see no reason why we can’t have all Members be afforded that

opportunity. If you’re going to be calling over there to the left, and

he’s not wishing to make an opening statement, since he’s the only

one who can deny your suggestion, that’s fine with me. But I would

like to say that Members’ rights are being ignored.

Mr. MCINTOSH. I’m going to be following the precedent set by

Chairman Burton yesterday for the full committee.

Mr. WAXMAN. Mr. Chairman, are you suggesting you’re going to

have opening statements by the chairman, the ranking member of

the subcommittee and then the chairman of the full committee and

ranking member of the full committee?

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Mr. MCINTOSH. Yes. You’re going to get your opening statement.

I’m sorry, there was a misunderstanding, both of you will be able

to give your opening statements.

The purpose of this hearing is to examine the pace of Superfund

cleanups at more than 1,200 Superfund sites from around the country. I wanted to, in particular, thank Chairman Burton for continuing the request of former Chairman Clinger to the General Accounting Office to study this issue. I’m sure that all members of

this subcommittee agree with the need to put politics aside and examine the important public health and environmental impacts of

this issue.

I know that Mr. Waxman, our full committee ranking member,

has been active on environmental issues for much of his career.

And although we sometimes disagree on exactly what the best

method and the fastest and most effective way to achieve that end

is, we both do share the goal of cleaning up the environment. I especially want to thank Mr. Waxman, the ranking member of the

full committee, Mr. Sanders, ranking member of the subcommittee

and their staff for persuading EPA to reconsider and join us today

to testify on the delays in cleaning up Superfund sites.

Now, at the subcommittee’s hearing on the Superfund program

last year in May, we heard from the Tielmann family. They’ve been

dealing with this issue for about 13 years and counting and it’s

taken that long for EPA to improperly treat the Superfund site on

their farm. It would have been bad enough if the site had remained

untouched for all that time, but instead, the three Tielmann children were exposed to heightened levels of asbestos and other dangerous toxins. This is because the existing asbestos on their farm

was dug up and not removed. In addition, the truckloads of dirt

from another toxic wastesite were dumped on the property as part

of the final cleanup. The last I heard, EPA is still studying what

to do with the Tielmanns’ farm. Now, when innocent children are

endangered, EPA needs to admit that there is a problem.

The purpose of today’s hearing is to examine the extent of that

problem. I want to thank all of the witnesses for their testimony.

As most of our witnesses will attest, the goal of fast, fair, and effective cleanups has gotten lost. There are several contributing factors

to this delay, endless disputes over what should be done, and litigation over who should pay for it. However, the focus of today’s hearing is not so much on the causes of that delay, but on whether the

job is getting done at all and in what timeframe.

The most critical question in assessing the problems with the

current Superfund program is whether the time to assess cleanup

and assess whether a site should be listed has improved, remained

the same, or gotten worse since the program began in 1986. When

Congress reauthorized the Superfund program in 1986, it set a

statutory goal of 4 years to assess a site and decide whether to

place it on the National Priority List. In 1986, it took about 4 years

to make that determination. GAO’s current study, which is based

on EPA’s own data, shows that it is now taking 9.4 years on average to list a non-Federal site.

In 1986, the average time to clean up a Superfund site that was

placed on the National Priorities List was less than 4 years. In

1993, EPA established an expectation of 5 years to clean up a site.

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But by 1996, the cleanups were averaging 10.6 years. Once again,

that is more than twice the 1993 goal and about three times the

average when Superfund was reauthorized in 1986. In 1996, last

year, the combined average time to list a site and then clean it up

is a staggering 20 years. Now, regardless of the causes, there

should be no covering up the fact that something is seriously wrong

with the Superfund program.

Based on current trends, things may get worse before they get

better. Even if the administration does do a better job, the sheer

number of potential Superfund sites is staggering. The total number of sites on the National Priority List as of last November was

1,205. EPA has been adding about 16 sites per year to that National Priority List for the last 4 years, but there are an estimated

1,400 to 2,300 additional sites that potentially should be added. If

EPA can only clean up 64 sites per year and is only taking 16 new

sites per year, we may never be able to tackle this problem. Man

may go the way of the dinosaurs before all the cleanups are done.

If EPA is defensive about the pace of cleanups, then I welcome

their testimony on what the different causes of the delays are. I’m

sure that past Congresses are partly to blame for enacting a hydraheaded litigation monster that is the Superfund law. And there is

certainly enough blame to go around. But I don’t think that it is

constructive for people to try to evade the hard facts about the

cleanup delays by arguing over methodology. GAO has a sound

methodology and the only one that compares the same data over

the relevant period of years. And I’m very pleased to have their report today, to give us a sense of what the nature of the problem

is.

Before we can solve a problem, we must first admit that the

problem exists. That is not the sense I get when I read the administration’s prepared testimony. EPA’s prepared testimony suggests

the agency is merely rearranging the decks on what seems to be

a floundering ocean liner. Now, I believe the Members of both sides

of the aisle and all families living near the Superfund sites would

find that unacceptable. In fact, EPA’s own figures for 1995 show

that less than half of the Superfund budget is spent on direct

cleanup efforts. Forty million Americans who live within the 4 mile

radius of a toxic wastesite and millions of their children who live

there want to know the truth, and they want a program that

spends at least as much on cleanups as on administrative and bureaucratic overhead and litigation.

In short, the American taxpayers deserve better, and I look forward to hearing the testimony of all the witnesses. I would now

like to recognize our ranking subcommittee member, Mr. Sanders,

for an opening statement.

Mr. Sanders, welcome to our committee.

[The prepared statement of Hon. David M. McIntosh follows:]

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Mr. SANDERS. Thank you very much, Mr. Chairman. And, Mr.

Chairman, thank you very much for holding this hearing today.

The State of Vermont, that I represent, is one of the most environmentally conscious States in the country. We are very concerned

about toxic dumps that we have in our State and throughout this

country and want to see them cleaned up as cost-effectively and as

quickly as is possible. And, therefore, I thank you very much for

calling attention to this important problem and the whole Superfund program.

Obviously, however, I hope that we can look objectively at the

program as it is run today without condemning the program from

mistakes made in the past. As you know, early on, EPA administrators under President Reagan ran into many, many problems relating to Superfund and ultimately the chief administrator resigned

in disgrace. And while we are all disturbed about what happened

in the early 1980’s, and don’t want to dwell on that issue, I think

it is important to bring it into the record. What happened in the

past is unfortunate, the fact that EPA administrators started off in

such a bad way running the Superfund is unfortunate, but that

was yesterday, and today is today.

In the early days of the Superfund, progress reports were abysmal and sites were just not started down the pipeline. And that

meant that future administrators inherited that backlog, and that’s

an important point to be introduced into the record. Superfund, as

you know, addresses a large and complicated problem. It is not necessarily apples and apples. Some sites are in terrible condition, difficult to improve, others not so bad. There are different toxic chemicals, different terrains and different communities at each site.

As the EPA gains experience, cleanups are getting faster and

more cost-effective. And recently, the Clinton administration adopted major reforms addressing some of the problems that we’ll be discussing today.

The general consensus, Mr. Chairman, seems to be that we are

doing better. In the last 4 years, EPA has cleaned up 250 Superfund sites, almost double the amount cleaned up in the previous 12

years. Let me repeat that. EPA has cleaned up 250 Superfund

sites, almost double the amount cleaned up in the previous 12

years. That seems to me to be a pretty good record. From 1983

through 1992, EPA completed cleanups on an average of fewer

than 15 sites per year, while during the first 3 years of the Clinton

administration, EPA’s average soared to 65 sites per year. That

seems to me to be a pretty good improvement.

About 75 percent of Superfund sites are either under construction or are construction-complete; of the approximately 1,300 NPL

sites, 418 are construction-complete and another 491 are under

construction, and cleanups are now 20 percent faster and 25 percent less expensive than under the Reagan and Bush administrations. Once again, not perfect, but that seems to be a pretty good

step forward. Even the large corporations affected by the program

seem to agree. In a December 1996 report, an industry group reported, ‘‘EPA’s track record is substantial, especially in light of the

severe obstacles that EPA encountered during fiscal year 1996, as

it began implementation of these reforms.’’

18

Yet, Mr. Chairman, you say that GAO has come to the opposite

conclusion. This disparity of opinion concerns me a great deal. If

we are truly interested in taking an objective look at the program

and how it is run today, we need to make sure we are asking GAO

to look at the current program. Now, if we want to have a hearing,

Mr. Chairman, and I think some of us might be interested in doing

it, and seeing how Superfund was handled in the early 1980’s, we

can do it. But if we are interested in looking at how EPA is functioning with Superfund today, let’s look at Superfund today.

I understand that this is a difficult issue because of major reforms that have been implemented in the last 5 years. But I don’t

think it’s helpful to confuse the issues with numbers that are not

telling the true story. So this will be an interesting hearing for all

of us who want to make sure that the Superfund cleanup takes

place as cost-effectively and as rapidly as we possibly can.

Thank you very much, Mr. Chairman.

[The prepared statement of Hon. Bernard Sanders follows:]

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Mr. MCINTOSH. Thank you, Mr. Sanders. I look forward to serving with you on this subcommittee.

Mr. SANDERS. So do I.

Mr. MCINTOSH. And I look forward to getting the data out on the

Superfund issues. Before we turn to Mr. Waxman for his opening

statement, let me welcome the new members of the subcommittee

who are here. Mr. Kucinich, welcome.

Mr. KUCINICH. Good to be here.

Mr. MCINTOSH. And Mr. Snowbarger, welcome, and also our new

vice chairman, welcome, I hope you will enjoy being on this committee, Mr. Sununu from New Hampshire. The staff mentioned you

don’t have an opening statement at this time, particularly?

Mr. SUNUNU. No.

Mr. MCINTOSH. OK. Thank you. Mr. Waxman, for your opening

statement.

Mr. WAXMAN. Mr. Chairman, I’ve been a Member of Congress for

22 years. During that time we’ve had Republican administrations

and Democratic administrations, and the traditions of the House

and the rules have always required that we treat people fairly. If

it’s an administration witness, you try to put them on first. If it’s

a colleague who wishes to testify, invariably, we put the colleague

on first, because our colleagues have other business. When Members come to a hearing, all Members have been afforded the right

for an opening statement.

Mr. Chairman, we received notice of this hearing that was going

to be on the GAO report, which I think is a very flawed report, and

when we first heard about the hearing, the Environmental Protection Agency wasn’t going to testify. We thought that was quite inappropriate and worked with you to encourage EPA to come and

testify so we would have a balanced hearing. We also indicated,

Mr. Chairman, that we wanted to bring in some witnesses that

were critical of the GAO and requested those witnesses.

Well, evidently, now that the chairman sees that there is going

to be some criticism of the point of view that he wants to advance,

he’s come up with some witnesses that he wants to put on, but we

haven’t received notice about these witnesses appropriately under

the rules and under rule 2, it says, ‘‘Every member of the committee, unless prevented by unusual circumstances, shall be provided with a memorandum at least 3 calendar days before each

meeting or hearing explaining (1) the purpose of the meeting; and

(2) the names, titles, backgrounds, and reasons for appearance of

any witnesses.’’ And we didn’t get that notice under the rules.

I don’t know what unusual circumstances there can be that

would require that we bend the rules. There’s another rule that

says that we get testimony at least 24 hours in advance. We didn’t

get the testimony 24 hours in advance.

Now, ordinarily if you’ve got a hearing, you try to let the witnesses testify, and most people will not be a stickler to the rules,

but when I walked in today, Mr. Chairman, you indicated you

didn’t want Mr. Pallone to testify first. You didn’t want Members

to be able to make opening statements. You wanted to be sure that

the witnesses who agreed with you get to testify first; those happen

to be a panel of witnesses whose names we never received in advance and whose testimony we did not receive in the appropriate

22

timeframe. And then you wanted to have our witnesses at the very

bottom, rather than have them maybe together in a panel.

I’m making a record, Mr. Chairman, that I think that what we

have is a breakdown in the comity in which Members ordinarily get

together to try to work out what is a fair hearing where all sides

can be aired.

Let me talk about the issue before us, Mr. Chairman; we’re going

to hear some testimony on how quickly we have been listing and

cleaning up toxic wastesites, and I appreciate the fact we’re holding

this hearing, because we’re frustrated by stories of long, drawn-out

cleanups and we all want sites cleaned up quickly. On the other

hand, we need to put the testimony we hear today in perspective.

It’s my understanding that the GAO’s analysis is based on a methodology that is flawed. We need to make sure that we do not condemn the program as we know it today for the mistakes made in

earlier years, especially when the current administration has

adopted reforms that address these problems.

Sixty-eight million people, including 10 million children, live

within 4 miles of a toxic wastesite. The Superfund program sets up

an aggressive plan for listing and cleaning up these sites. Unfortunately, during the early days of Superfund, in the 1980’s, the program was largely ignored by those in charge of running it. Rita

Lovell, the Republican-appointed EPA assistant administrator who

first ran this program, went to jail for lying to Congress about the

Superfund program and the first EPA administrator charged with

managing Superfund, Ann Burford, resigned in disgrace in connection with the same controversy.

A 1983 EPA management review concluded that, ‘‘The Agency

never mobilized its full resources to implement the Superfund program in a coordinated way... Top EPA policymakers at headquarters were primarily concerned with ‘prudent fund management,’ [which] had a significant dampening effect on aggressive

front-line cleaning-up activities through the application of restricted criteria for Federal action.’’

Because of this early neglect, future administrations inherited a

tremendous backlog of sites that had not yet been listed or cleaned

up.

In stark contrast, the Clinton administration adopted wide-ranging reforms that directly address the long-standing problems of

long, drawn-out cleanups, including: reducing the delay caused by

litigation by reaching settlement with thousands of de minimis parties (14,000) shortening the time it takes to study remedies by

starting with a presumptive remedy at many sites, and fully implementing the Superfund accelerated cleanup model (SACM), which

promotes expedited removals of dangerous toxic waste. We will be

releasing a minority staff report on the progress made.

The progress report on these reforms is impressive: In the last

4 years, EPA has cleaned up 250 Superfund sites, almost double

the amount cleaned up in the previous 12 years. From 1983 to

1992, EPA completed cleanups on an average of fewer than 15 sites

per year, while during the first 3 years of the Clinton administration, EPA’s average soared to 65 sites per year. About 75 percent

of Superfund sites are either under construction or are construction-complete. Of the approximately 1,300 NPL sites, 418 are conVerDate 11-MAY-2000 13:56 Jun 06, 2002 Jkt 078862 PO 00000 Frm 00026 Fmt 6633 Sfmt 6602 E:\HEARINGS\41517 pfrm12 PsN: 41517
23

struction-complete and another 491 are under construction. And

cleanups are now 20 percent faster and 25 percent cheaper than

under the Reagan and Bush administrations.

In fact, a group of large corporations that are interested in

Superfund reforms reported in the December 1996 report, ‘‘EPA’s

track record is substantial, especially in light of the severe obstacles that EPA encountered during fiscal year 1996 as it began implementation of these reforms.’’

Today, Mr. Chairman, we’re going to hear some testimony from

the GAO about the Superfund program and how quickly we have

listed and cleaned up sites. Let’s keep in mind that the Superfund

program today is a very different program than the program we

had in the 1980’s. As we look forward and consider what changes

still need to be made to improve the program, we must recognize

the tremendous progress that has been made in the last 4 years

and we need to make sure that we do not inappropriately condemn

the Clinton reforms for the neglect of earlier administrations.

Mr. Chairman, this hearing is an appropriate one for our subcommittee, the issue is an important one for us to evaluate in a fair

manner. I would never reject the idea of witnesses coming in to say

what they have to say, even though I might disagree with them.

I think it’s inappropriate to have the rearrangement of the order

of witnesses to try to have the witnesses that agree with the Chair

up front and the witnesses that disagree with him down on the bottom. I think that this hearing has not been handled the way it

should have been, and I say that with a great deal of regret, and

I want the record to reflect it.

I yield back the balance of my time.

[The prepared statement of Hon. Henry A. Waxman follows:]

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Mr. MCINTOSH. We’ll move now to the witnesses. Let me state

at the beginning, though I have a very different philosophy and I

think this whole Congress has a different philosophy than the past

40 years, that it is perhaps best for us to hear from citizens of the

United States outside of Washington first and then have the Government listen to itself about problems. And for that reason, I intend always to have panels with citizen witnesses come first and

then Government witnesses.

Now, Representative Pallone has asked if he could go first today,

because he’s got another mark-up over on the Commerce Committee, and in order to accommodate his time, I’m happy to move

him up from the testimony with John Mica later, and we’ll hear

from John later on in the hearing.

So with that, thank you for coming by, Representative Pallone.

I appreciate you spending time to come and share your experiences

on this subject with us. And let me now turn it over to you for your

statement.

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

Mr. PALLONE. Thank you, Mr. Chairman. And I also want to

thank the ranking members, Mr. Waxman and Mr. Sanders also

for the opportunity to testify today.

As you know, I am a New Jersey resident and represent the

Sixth District in New Jersey, and I’m very familiar with the Superfund’s highs and lows. New Jersey has 116 sites on the National

Priority List, more than any other State in the country, and my

district alone contains 10 Superfund sites. However, I’m here basically to tell you that I’m pleased about the EPA’s extensive Superfund presence in New Jersey. I know that sounds a little strange,

but the fact is that there are more than 7,000 known contaminated

sites in our State.

If you look at the State sites, it’s obviously a lot more extensive

than the Federal Superfund sites. And for years on a bipartisan

basis, our State government has worked hard to find and remediate

toxic sites throughout New Jersey. But we can’t do much of it on

our own, and that’s why we’re pleased that there is a Federal program that is cleaning up the sites in New Jersey and why I’m particularly pleased that Superfund is working, and I stress, is working in my district.

In New Jersey almost 70 percent of our 116 sites are either being

cleaned up or are cleaned up. A great number of the sites have not

been delisted, only because long-term monitoring is still ongoing

there, because long-term treatment of ground water is still ongoing.

But I want to stress again that the Superfund program is working

in New Jersey. In my State, EPA and our State government work

hand-in-hand to save people’s lives and protect their health. And

I just wanted to give you an example: At the Grand Street Mercury

Site in Hoboken, the local and State departments of health, together with the EPA, took swift action to protect the lives of 34

people living in a building that was so contaminated with mercury

that residents were exhibiting early poisoning symptoms.

Let me tell you, mercury pollution is sort of a pet concern of

mine, because it is such an extensive problem in New Jersey, and

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I think many of you know the very damaging effects that mercury

pollution can have. Today, the EPA is working with the State to

both remediate that site in Hoboken, that I mentioned and to provide for shelter for the evacuated residents.

Mr. Chairman, I hope that today’s hearing will have the positive

outcome of illuminating ways to speed up cleanups that truly protect both human health and the environment. Let me say that I

understand that there have been some problems with Superfund

and with some individual site cleanups, and each of us can talk

about that, but let’s be honest and acknowledge that those problems were in many respects due to some miscalculations on the

part of Congress and past administrations. For instance, it’s clear

that in writing the original Superfund statute, Congress greatly

underestimated the original size and complexity of the toxic waste

problem in this country. And my colleagues, the ranking members,

have also mentioned, which I think is true, that the program was

grossly mismanaged during its crucial development phases by

former EPA officials.

The truth is that the Superfund program is a very complicated

answer to a complex problem, and, however, many of the complaints that are often repeated about Superfund stem more from a

lack of understanding about the nature of environmental pollution

and remediation and, I think, unrealistic expectations about Superfund. What many fail to recognize is the sheer volume and complexity of the National Priorities List, the contamination at any

given site on the NPL, and the need to develop a whole new generation of technology just to treat the contamination. What I wanted to do today, in the last few minutes here before

I conclude, is to talk about a couple of Superfund success stories,

and maybe that’s appropriate. I can begin by talking about one in

my own district that’s very close to my heart. This is the Chemical

Insecticide Corp., site in Edison, NJ, and, in fact, today the EPA

is going to announce that the offsite cleanup is completed at this

site.

The CIC site manufactured pesticides from 1958 through 1970.

As a result of CIC’s operations, the site became heavily contaminated with arsenic, organic pesticides, herbicides and other hazardous substances. This was basically the product of Agent Orange

for the Vietnam war. Nearly 77,000 people live within a 3 mile radius of this site in New Jersey, however, of real concern to residents and me was the contamination that migrated offsite to an

unnamed stream and the Mill Brook. Both of these are used for

recreation by local residents, particularly children. Because we believed that the offsite pollution posed a real threat to the health

of Edison, NJ, I wrote to the EPA in December 1994 urging the

agency to ensure full and swift remediation of all offsite contamination. By March 1995, EPA had signed a record of decision on the

offsite contamination and by July of that year, EPA had begun removing what was to amount to a total of 13,300 tons of contaminated soil.

EPA completed that removal in December, and the agency has

also back-filled the excavated areas, restructuring and stabilizing

the stream beds, the banks, and planting thousands of trees and

shrubs. And I’m happy to announce today, this is really being announced today at this hearing, that the EPA will declare the offsite

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cleanup complete. So in only 2 years the EPA has not only responded to our request, but actually completed the offsite cleanup.

And I mentioned mercury contamination of a site in New Jersey

earlier, but this is my other example, if the committee would bear

with me. The best example of EPA’s work in addressing mercury

contamination is at the site that’s called the LCP site in Brunswick, GA. This is an industrial site that had many environmental

problems and did not come into compliance with the law when ordered to on various occasions by the State of Georgia. The State actually filed suit to close the facility. It’s a dangerous site by any

standards. Between 1980 and 1994, 380,000 pounds of mercury literally disappeared into thin air, into the atmosphere. The site is

also contaminated with lead, PCBs and barium.

And as I’ve noted before, States can’t always get the job done on

their own. They often lack the expertise or the funds to cope with

toxic threats. This was clearly the case with the LCP site. Within

a day of the facility’s closure, the State of Georgia asked EPA to

come in to deal with the threat. That was 3 years ago. Almost immediately EPA began a removal action to mitigate the threat to the

surrounding people and environment in addition to undertaking

the removal action within 11⁄2 years, EPA proposed the site for

NPL listing and listed the site less than a year later.

And let me just quickly describe what they did, because I think

the sheer volume of EPA’s work at this site is mindboggling. Since

February 1994, EPA has removed 450,000 pounds of mercury,

130,000 tons of contaminated waste, and 20 tons of asbestos. It has

demolished the main process building and decontaminated 75,000

tons of steel and building debris. The agency has also treated over

30 million gallons of contaminated waste water and removed

120,000 gallons of contaminated oil from the site. The sheer magnitude of it is really mindboggling.

Perhaps the most impressive thing is EPA’s work with a developer at the site to tailor the cleanup to the future use of the LCP

site, because ultimately that’s what we want to see these sites used

for new purposes, and because of the EPA’s work, a shipbuilder is

already looking to purchase the site and begin construction of dry

docks on an area that is already cleaned up. This holds the promise

of bringing some 300 high-skilled jobs to a site that the State of

Georgia once tried to shut down.

Now, I use those two examples, but there are many more examples like that. And, as has been pointed out, particularly in the last

few years, the pace of cleanup has accelerated.

In closing, I just hope that my testimony provides some insight

into the bright side of the Superfund program and into some of the

complexities that necessarily arise from such a complex undertaking as toxic waste cleanup. If I haven’t made it clear enough,

my message to you and the American people is that Superfund,

while not perfect, does work. In fact, it often works so well and

there are people in communities that had a very positive experience with the program and would continue to welcome the EPA’s

efforts to help safeguard their well-being and restore their lands to

productive use.

I know that you’re going to spend a lot of time on this issue, and

I know that the Commerce Committee, that I’m a member of, will

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also be spending a lot of time on it, but the bottom line is, whatever we do with the program, we have to do it in a way that improves it, but understand that the program right now is very successful in cleaning up sites.

And, again, I thank you for your attention and for the opportunity today.

[The prepared statement of Hon. Frank Pallone, Jr., follows:]

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Mr. MCINTOSH. Thank you, Mr. Pallone. I appreciate you coming

over, and we’ll make your full remarks part of the record.

Let me now call forward the first panel of witnesses, Mr. Don

Parris, Mr. Richard Castle, and Mr. John Lynch.

Mr. WAXMAN. Mr. Chairman, I seek recognition for a point of

order. Committee rule 2: The minority must receive at least 3 days

notice of the identity of witnesses unless prevented by unusual circumstances. This rule was not followed. If I might be heard further

on it. We didn’t learn the identity of the witnesses on panel one

until yesterday afternoon. The late notice has not allowed us ample

time to prepare questions or to investigate what the witnesses’ testimony might be.

I don’t object to hearing the testimony of these witnesses today,

but I would request that they testify at the end of the hearing. This

would allow us at least a minimal amount of time to prepare for

the witnesses’ testimony. Delaying the testimony of the panel

would also allow us to extend the normal courtesies to other witnesses that have prepared to be with us; delaying the testimony

would also allow us to extend the normal courtesy to Mr. Laws, a

senior official of the EPA.

Our tradition has always been to allow senior administration officials to testify after Members of Congress and before the other

witnesses. You indicated these witnesses are grassroots witnesses,

you want to hear from them first. We have other grassroots witnesses who will come with testimony that disagrees with your position, they happen to be put at the bottom.

But my point of order is on a violation of committee rule 2, and

I assert that point of order at this time.

Mr. MCINTOSH. OK. Let me just say the Chair is cognizant of Mr.

Waxman’s concerns here. Adequate notice did go out for the hearing that we’re having today, and these witnesses, as I mentioned,

do represent people from outside of Washington, who have had real

experience in these areas, unlike the fourth panel, which are statisticians talking about the methods of analysis, and we will proceed

to have the hearing as it was indicated, with this panel first.

Mr. WAXMAN. Mr. Chairman, you indicated that the notice of the

hearing was given out in an appropriate time, but the rule says

that the names, titles, background, and reasons for appearance of

any witnesses. Information on these witnesses were not—their

names were not submitted to us.

The only ones who are listed, and I have the notice before me

and wish to put into the record—the notice that was sent out on

February 6, 1997, indicating that the only witnesses would be the

General Accounting Office auditors, Mr. Peter Guerrero, Mr. Stanley Czerwinski, Mr. John Donaghy on panel one and panel two, Environmental Protection Agency officials, the Honorable Carole

Browner, Administrator, U.S. EPA (invited). So we did not receive

the names of the witnesses who are about to appear right now.

Again, I don’t object to their testifying, even though the rules have

not been followed, but it seems to me that they ought not to be

ahead of everyone else. And so I assert that point of order.

[The information referred to follows:]

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Mr. MCINTOSH. OK. And my understanding is the rules recognize

that you can have witnesses with less than 3 days notice under

special circumstances. Since the full committee only organized yesterday afternoon, the Chair finds those special circumstances to be

present and overrules the point of order.

Mr. WAXMAN. Mr. Chairman, I would like to be heard on a last

point. We organized yesterday, but we had agreed that the subcommittees could call hearings. This hearing was called way in advance of yesterday’s official organization. We agreed that this hearing would go forward, as with other hearings of the subcommittees

of the Government Reform Committee, and I can hardly believe

that that could be an excuse for not following the rule for these witnesses, when it certainly didn’t prevent you from following the

rules for all the other witnesses that are testifying today.

Mr. MCINTOSH. And I will just state for the record that the minority has had as much notice about these witnesses as we have,

including receiving copies of their testimony at the same time as

the majority did, and so we will proceed with the panel as scheduled.

Mr. WAXMAN. Mr. Chairman, are you ruling my point of order

out of order?

Mr. MCINTOSH. Yes, indeed, I did.

Mr. WAXMAN. Then, Mr. Chairman, I appeal the decision of the

Chair. And I make a point of order noting the absence of a quorum.

Mr. MCINTOSH. That point of order is overruled. There is a

quorum.

Mr. WAXMAN. Mr. Chairman, a quorum is not present under the

rules to deal with the appeal of a decision of the Chair.

Mr. MCINTOSH. Then the committee will stand in recess until a

quorum is present.

[Recess.]

Mr. MCINTOSH. The subcommittee will come back to order.

It is my understanding that the minority would like Mr. Sanders

to substitute for Mr. Waxman on making that point of order.

Mr. SANDERS. No.

Mr. MCINTOSH. OK. Then there’s no legitimate point of order

raised. According to rule 9 in the Parliamentarian’s office, that has

to be made by a member of the subcommittee. I will recognize Mr.

Sanders for the purpose of making that point of order if he wishes

to.

[No response.]

Mr. MCINTOSH. OK. No point of order. We will proceed to the

witnesses.

First, let me ask all of the witnesses to please rise and repeat

after me.

[Witnesses sworn.]

Mr. MCINTOSH. Let the record show that each of the witnesses

answered in the affirmative.

Before we begin taking your testimony, I understand that each

of you has submitted to the subcommittee your re ́sume ́ and a brief

statement regarding the receipt of Federal funds, pursuant to

House Rule XI. I want the record to reflect your compliance with

that truth in testimony rule, which I appreciate your doing.

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Mr. Parris, did you or any of the entities you are representing

before the subcommittee receive any Federal grant, subgrant, contract, or subcontract?

Mr. PARRIS. We did not.

Mr. MCINTOSH. Mr. Castle, did you or any of the entities you are

representing before the subcommittee receive any grant, subgrant,

contract, or subcontract from the Federal Government during the

fiscal years 1995, 1996, or 1997?

Mr. CASTLE. We have not.

Mr. MCINTOSH. Mr. Lynch, did you or any of the entities you are

representing before the subcommittee receive any Federal grant,

subgrant, contract, or subcontract during the fiscal years 1995,

1996, or 1997?

Mr. LYNCH. I have not, sir, and I’m not representing any entities.

Mr. MCINTOSH. Thank you. I ask unanimous consent to make the

witnesses’ written certifications part of the record.

Mr. WAXMAN. Mr. Chairman, since it’s the first time we have

come to this issue of the certification of the rule, I understand that

witnesses, all witnesses, have been given a certification of nonreceipt of Federal funds by this subcommittee, and the witnesses

have been asked to sign it. I find that at odds with the rule, and

I certainly would urge witnesses to be very wary about signing

something which might be inadvertently incorrect, because in signing such a statement they would subject themselves to criminal

penalties.

The rule, as I see it, says, ‘‘Each committee shall, to the greatest

extent practicable, require witnesses who appear before it to submit in advance written statements of proposed testimony and limit

their initial oral presentation . . . In the case of witnesses appearing in a nongovernmental capacity, a written statement of proposed

testimony shall include a curriculum vitae and a disclosure of the

amount and source, by agency and program, of any Federal grant

or subgrant thereof, or contract or subcontract thereof, received

during the current fiscal year or either of the two previous fiscal

years by the witness or by an entity represented by the witness.’’

Our committee rules don’t go so far. Our committee rules say

that when they appear, they provide a listing of any Federal Government grants and contracts received in the previous fiscal year.

But this loyalty oath, almost, asserting that you have never received anything, says, ‘‘I am representing I have not received any

Federal grant or subgrant thereof, or contract or subcontract thereof, during the current fiscal year.’’

I don’t think witnesses are required to sign this. You can give

this to them if they want to sign it, but I think they might be misled into thinking they had to sign something like this. All they

have to do is submit any grants or say that they know of no grants.

I question the propriety of this kind of form, and I want that on

the record.

I don’t want to take up time from the witnesses, but I think it’s

an issue that I want to highlight for further discussion as we all

try to deal with this new rule requiring witnesses to make this disclosure.

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Mr. MCINTOSH. So noted. That’s the current policy of the subcommittee, but we will look forward to working with the minority

in developing procedures to implement that rule.

Mr. WAXMAN. Current policy is a very strange notion. This is the

first time we have implemented the policy. This is an attempt to

implement the policy, and we want to talk further about whether

this is the appropriate way to do it.

[The information referred to follows:]

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Mr. MCINTOSH. Mr. Parris, if you would share with us your testimony, please.

STATEMENTS OF DON PARRIS, PRESIDENT, ENVIRONMENTAL

REMEDIATION CONSULTANTS, INC.; RICHARD CASTLE,

PRESIDENT, CASTLE CONCEPTS CONSULTANTS; AND JOHN

F. LYNCH, JR., SENIOR PARTNER, CARPENTER, BENNETT,

AND MORRISSEY

Mr. PARRIS. Mr. Chairman and members of the subcommittee,

we appreciate the opportunity to appear before you today and to

express our views on an EPA directive requiring extensive reform,

the Superfund Act of 1980.

Our companies are part of a consortium of environmental professionals with over 70 years of combined remediation expertise, small

businessmen, each with their own expertise, networking to scientifically assess and implement natural, commonsense solutions to

contamination problems. We are able to tap into the academic and

commercial advances throughout the country, combining these with

current remediation practice to offer site-specific initiatives never

before attempted.

Petroleum organics, solvents, chlorinated compounds, heavy metals, and even low-level radiation, all are being successfully remediated using innovative, cutting edge, biologically based protocols. We

are indifferent to the band-aid approaches of dig-and-haul, managed abatement, or capping, procedural throwbacks to the 1970’s

and 1980’s that are still being championed by many large firms

with their ‘‘one size fits all’’ mentality.

The focal point of our innovative methodologies centers on in-situ

bioremediation, the use of naturally occurring organisms to augment the metabolic removal of hydrocarbons from contaminated

sites, and the only remediation technology recognized by EPA that

does not create secondary liabilities.

Our network has been successful in bridging the gap between

R&D and the actual field application, to offer a proactive approach

that is fast, effective, economical, and complete. We have found the

typical period for minimally impacted soils to be 3 to 12 weeks, at

a 25 to 30 percent cost savings over traditional technologies.

Through the use of strain selection, population dominance, cotreatment amendments, and hydrological manipulation strategies,

we are able to minimize and maintain increased cell viability, thus

allowing for the simultaneous cleanup of both soils and ground waters, and eliminating the need for ‘‘operable units’’ at a site. The

site itself, in fact, is the operable unit.

Despite these obvious advantages proffered by small innovative

companies, we remain on the outside looking in. The large approved vendors, garnering close to 90 percent of the most lucrative

Government contracts while accounting for only 10 percent of the

total remediation firms, are inflexible and have only one or two socalled ‘‘technologies’’ that they make fit particular situations, disregarding any site specificity.

Since there are no time limits established for closure, the incentive to clean the impacted area is minimal. Administer and manage

are the coveted cash cows of these vendors. Thirty- to fifty-year

cleanups are common in the industry, but what is actually meant

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by ‘‘clean’’? Since the inception of the superfund, only 33 sites have

actually been cleaned, and we are speaking of a technical closure

now as opposed to a paper closure.

Dig-and-haul rids the impacted area of the contaminant only to

spawn the next generation of Superfund listings; namely, the landfills. Pump-and-treat was recently approved by a regulatory agency

because they knew of no other technology that fit a specific site.

The estimated time for that closure was 900 years, and this was

actually approved by that agency, with the caveat that, if something else came to light within that period of time, they might possibly use it.

Another case in point substantiating the need for Superfund reform is the Havertown PCP site near Philadelphia, PA. It was formerly a wood treater facility that had PCP, creosote, arsenic, copper chromate, dioxin, and various other contaminants. The EPA

held various town meetings to update the community on its efforts

and to ask for alternatives to the record of decision, which was capping, due to citizen opposition.

We visited the site and reviewed some of the available documentation. We found that there was no thorough site characterization; namely, no plume mapping, migration profiles, or hydrological

studies. There was no current toxicological investigation.

There were very lax meeting protocols filled with a lot of misinformation to the community, and there was constant posturing at

these meetings that the cap remedy was not predestined and was

merely an interim measure until a better technology could be developed. The apathetic citizenry of that area compared the entire

project to a dairy farm that was about to be milked for the next

30 years.

We felt we could help. We proposed to Havertown and the EPA

the following: we were to hold meetings with the EPA and the community to explain our technology; we were to answer any questions

or any challenges; and we were to do treatability studies, at our

own expense, on soils and ground waters; we would undertake a

full site characterization to define the sources, the zones of impact,

and migration pathways; we would submit a revised corrective action plan to clean up the soils and the ground waters and all the

adjacent properties; and we could reach closure, we felt, with the

information that we had, within an 18- to 24-month period.

On top of all this, we were going to guarantee this closure

through performance bonding. No cleanup; no pay. EPA’s response

to our efforts was less than desirable but not unexpected. It ranged

from our proposals being totally ignored—after all, they had never

put a guarantee and a cleanup in the same sentence—through competency and nontechnical rebuttals of proven facts.

Finally, the township was given the ultimatum to accept the cap

or lose funding. Federal marshals enforced this order, and the site

was topically sealed within 2 months. As a peace offering, nonpermanent buildings could be erected on the site or, in fact, it could

even be turned into a playground.

In summary, it is obvious to us that the EPA fell far short in

their duties and responsibilities at Havertown. No. 1, in light of

technical advances and dynamic site conditions, reevaluation is

definitely warranted. The use of 1970’s and 1980’s technology, the

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evaluation of bioremediation by a generic, nonspecific report with

no regard to provable merit, source elimination, and the lack of

mandatory hydrological and geological studies all support this finding.

No. 2, EPA’s remedial plan fails to consider permanent future

use of the property and its concomitant tax base. They would have

restrictive building codes and no underground utilities. Our methodologies actually clean the site up, to or below Federal and State

standards, with no use limitations.

No. 3, EPA would not consider or evaluate the economic advantages of our technology. With it, there would be no need to buy additional land, no need to construct roads, no need to cap, no need

to build a $10-million treatment facility, no need to demolish buildings, and no need for an operating and overhead expense for the

next 30 years.

The total cost of the project would exceed, probably, $40 million,

and nothing will be cleaned, only managed. The source will continue to pollute the ground water, and, as we all know, soil cleanup

using pump-and-treat just doesn’t work.

This is just one site among many and we are but one group

among many. If the EPA is to live up to its mandate, as evidenced

by the preceding scenario, clearly many changes are necessary.

They must get in step with the new thinking and put the emphasis

back on science. It is a sad note that cutting edge, innovative companies can totally remediate a site in one-tenth the time it now

takes to simply administer that site, saving countless lives, years

of nonuse, and billions of tax dollars.

We thank the committee for its efforts on behalf of the environment and for allowing us to participate.

[The prepared statement of Mr. Parris and Mr. Castle follows:]

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Mr. MCINTOSH. Mr. Parris, I appreciate that testimony. What we

will do is, we will hear from each of the panelists and then have

a period of questioning from the committee.

Our second witness on this panel is Mr. Lynch.

Mr. Lynch.

Mr. LYNCH. Thank you, Mr. Chairman.

Gentlemen, may I have your attention. I would like to address

particularly, Mr. Waxman, some of your concerns. I will state at

the outset that this is a personal statement. I am not here in a representative capacity. Your staff invited a party who had complained

about the intractable delays and costs of this program, and that

party suggested me as an alternate because I had experience with

many more cases.

Mr. SANDERS. Mr. Lynch, could I just encourage you to bring the

mic a little bit closer to your mouth, please.

Mr. LYNCH. Sure.

Mr. SANDERS. Thank you very much.

Mr. LYNCH. I first spoke to someone on your staff about this

thing yesterday morning at 10 o’clock. I pulled an all-nighter writing my testimony, but I do believe I’m coming in the idea that

someone who has made a living at this for 121⁄2 years may have

something of value for the very important national debate that you

folks are at the heart of.

Mr. WAXMAN. Mr. Chairman, I don’t want to take up his time,

so maybe we can start it over.

Mr. Lynch, let me make a couple of things clear. You never

talked to anybody on my staff.

Mr. LYNCH. You or the committee, sir.

Mr. WAXMAN. No, you never talked to anybody on my staff. You

might have talked to the majority staff, but not to our staff.

Mr. LYNCH. I agree.

Mr. WAXMAN. Second, the rules require that we have the testimony in advance so that we can review it and ask intelligent questions. I want people to see your testimony we received this morning; it’s all handwritten.

Mr. LYNCH. I understand that, sir.

Mr. WAXMAN. Now, I have no objection to your testifying. I want

everybody to testify who has something relevant to say. And my

beef is not with you; my beef is that we should have had this in

advance, and the chairman didn’t protect the Members.

Mr. BARR. Mr. Chairman, I have a point of order, please. Could

I inquire of the Chair if we can proceed under regular order and

whether a point of order would lie to that effect now, so we can proceed.

Mr. MCINTOSH. Let us proceed.

Mr. WAXMAN. I would like to ask unanimous consent that the

gentleman’s time start now so he will get the full 5 minutes.

Mr. MCINTOSH. We will do that.

Mr. Lynch, go ahead. Proceed.

Mr. LYNCH. My apologies, sir, for the handwritten. It’s the best

I could do. I tried to get it typed, faxed to my office, typed back,

and I did not know the handwritten was going to be handed to you.

I would really request the honor to be able to put a proofread

version in front of you sometime later.

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Mr. MCINTOSH. We will gladly accept that testimony. Mr. Lynch,

let me just say, the committee is extremely pleased that you are

able to be with us today, and we understand that, unlike the Government, the private sector doesn’t have huge staffs to help them

prepare these things months in advance and that you are taking

time away from things you could be doing in your business in the

private sector. So thank you for coming, and I appreciate the testimony you are giving.

Mr. LYNCH. Well, that’s OK.

My central idea is this, that you, a congressional committee,

should be at the heart of this national debate, because you are involved with governmental operations affecting the national economy. I think what’s wrong with this program is at that point. It’s

not in the details of administrative reform or the other things you

are probably going to hear more about.

I speak primarily to address the problems at multiparty sites. I

don’t have any brief to file with regard to what the Government

wants to do to tell some guy to clean up his factory. I’m talking

about the multiparty sites, the kinds of sites that are taking the

administrative and litigation delay that you are talking about.

The central point I want to make is that among all species of

Government programs, Superfund—and I don’t think this is widely

recognized—is an entirely new animal. It looks like some others,

and parts of it can be recognized by comparison to other species,

so it’s more like a mutation than an alien, but this is fundamentally a new animal, and I don’t think people understand that.

What I’m saying is that the main problem with this program is

not the way it’s dealt with in the field, though certainly there are

those kinds of problems. In the main, EPA employees are certainly

not stupid, ignorant, or evil. The companies that respond to these

cases are not rogues, insensitive to the national will. All these folks

are simply reacting to try to deal rationally with something foreign

to their experience and the national governmental traditions.

Let me illustrate how different this program is, showing how, in

some ways, these factors of it can be recognized in other statutes

but together they represent mutations of a governmental program

which have produced a nonworking program.

First of all, most environmental statutes—RCRA, Clean Air,

Clean Water, NEPA—tell this generation how to deal with its hazardous substances today. Those programs tell us how to allocate resources to produce products today and fulfill national environmental policies at the same time. In contrast, Superfund asks this

generation to use its assets to pay for the sins of the past, and

sometimes to pay for the good actions of the past.

Second, most significant allocations of resources in our society

are done by market forces—Adam Smith’s invisible hand—or by

legislative decisions by Congressmen such as you, hammered out

against the background of demands of competing programs and

their fiscal constraints, while you guys try to reach, if not a balanced budget, at least a responsible one. In contrast, Superfund

does not give bureaucrats money to spend; it gives them power to

spend other people’s money off budget.

Third, most governmental programs which operate by giving

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fore it matures into any order that must be obeyed. In contrast,

Superfund falls within an exception to the general principle of prior

judicial review carved out for health-related cases in the U.S. Supreme Court case of ex parte Young.

Fourth, most governmental programs that come within the ex

parte Young exception are intrinsically limited in the amount of the

generation’s wealth they relate to. The quarantine of a ship in a

harbor may be seriously bothersome to the cargo and shipping companies, but their capitalization and risk management decisions

probably localize even that effect, and the national economy is not

affected.

In contrast, there is nothing under Superfund—absolutely nothing—that prevents a single bureaucrat from ordering the entire

gross domestic product to be devoted to cleaning up a single site.

Now, that sounds silly. Perhaps it’s really not going to ever happen—although, when I look out my window at a sediment case involving the Passaic River, I sometimes wonder—but the point I do

want to make is that bureaucrats performing what they perceive

to be their obligations under this statute can order just about any

amount of this generation’s fisc and can do it without a whole lot

of cost considerations, cost benefit constraints of the consequences.

I will skip a point, just because of the time constraints, dealing

with the fact that there is a delinkage between the traditional legal

concepts in our society of cause—you have to cause a problem before you have to remedy it. Here, the dilution of the concepts of

joint and several liability are so extreme that parties get dragged

into cases with the smallest scintilla and are threatened with the

ruinous consequences of the total dollar consequence of the entire

site, and those consequences are not reasonably related to any kind

of result.

The problems are compounded by efforts to do promptly that

which ought not to be done in the first place, to do it by employing

gross diseconomies of Government contracting processes, and to do

it occasionally to serve the interests of the preservation of Government jobs. But as applied to multiparty sites, Superfund is a program made to make this generation pay for the cures of the ills of

the past.

As such, in my opinion, it should be based on a congressional determination of how much we can afford, in this generation, to address those prior ills. How many bucks can we spend? We can’t

spend it all to clean dumps. Somebody has to grow the food to feed

the people that clean them. Once that amount is determined, there

ought to be a program implemented that holds people in Government responsible to get the most environmental bang for those

bucks.

Instead, Congress has granted unprecedented power and tries to

hold people responsible for how many cases they have closed and

how fast they have closed them. This program has become yet another example, in our computer age, of the perversion of qualitative

values into quantitative gymnastics. Protecting the health of ourselves, our children, and our planet has, under Superfund, become

an exercise in counting beans.

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Now, those are my conclusions, as I say, after 121⁄2 years of dealing with this. If you want the details, anecdotal examples of any

of these things, I will be glad to provide them.

[The prepared statement of Mr. Lynch follows:]

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Mr. MCINTOSH. Thank you, Mr. Lynch.

Mr. Castle, the staff informs me that Mr. Parris had presented

testimony for both of you, but do you want to add any additional

comments at this stage of the hearing?

Mr. CASTLE. Actually, my mission is just to answer questions, if

there are questions. Being part of the consortium that Don was

speaking of, we’re sort of on a joint venture here into answering

any questions as witnesses to the subcommittee. I don’t have a prepared speech.

Mr. MCINTOSH. Thank you for coming today.

Let’s turn now to questions from the committee. Let me direct

the attention of all of the witnesses to the charts there on the left.

These are from the draft study that GAO will be talking to us

about in the next panel. What they indicate are how long it takes

to place a site on a Superfund National Priority List and how long

it takes to complete the cleanup after they have been placed on

that list.

As you can see, the slope of those lines indicates that there’s a

steadily increasing amount of time since 1986, for both of those decisions and actions to be taken. Back in 1986, when Congress reauthorized the program, it took about 4 years to place a site on the

Superfund list and then about 21⁄2, maybe 3 years in order to clean

it up. Today, in 1996, it takes a little less than 10 years to place

it on the list and perhaps over 10 years to actually clean it up,

making the total time over 20 years.

In your experience, what would you recommend that we make for

changes that would try to, perhaps in an ideal world, return the

timeframe back to where it was in 1986, but at least make some

dramatic changes. I think we can recognize that, in the last year

or so, the time it takes to place a Superfund site on the National

Priority List has started to come down, but, unfortunately, the

cleanup time has continued to increase.

Any recommended changes that you would have us recommend

to EPA in this, or pass as a statutory change, in order to dramatically decrease the time for both of those decisions?

Mr. PARRIS. On the average time it takes to clean up the Superfund sites, I think the initiative that the EPA is starting to undertake, the assessment based on presumptive remedies, I think this

is a good initiative to undertake if, in fact, it is done correctly and

the correct presumptive remedies are, in turn, looked at.

And I think, as I stated, we’ve got to get more science-based initiatives, as opposed to engineering or physical removals of materials on sites. There’s a lot of cutting edge science out there, not

just what we talked about today. There are a lot of people looking

at this problem, and a large quantity of them are small businessmen such as ourselves. These fellows need to be heard, and they

need to have access to EPA as do the large vendors. They need to

cut through the red tape, and they need to get to the people that

they have to get to.

Mr. MCINTOSH. Let me pursue that, in particular, in the example

you cited where you wanted to use bioremediation to actually clean

up a site. Did EPA give any reasons for not even considering your

proposal? I mean, was it just kind of a black hole, or did they give

you some response?

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Mr. PARRIS. Basically, none. We bantered back and forth a little

bit, and talked about the reasons we could not or could, in fact,

apply that remediation to this site. By the way, bioremediation is

a presumptive remedy for wood treater sites; not the only remedy,

but it is one of the ones that is considered foremost.

Mr. MCINTOSH. So, under EPA’s own standard, what you were

proposing fit into their presumptive remedies under their reforms?

Mr. PARRIS. That is correct.

Mr. MCINTOSH. But they wouldn’t even consider that proposal for

that site?

Mr. PARRIS. No, sir.

Mr. MCINTOSH. To the best of your knowledge, they didn’t provide any rationale for making that decision.

Mr. PARRIS. They provided none.

Mr. MCINTOSH. I must say that bioremediation, as you described

it, does seem to have a great deal of promise, particularly because

we would actually remove the toxic substances from the site and

not have to create another wastesite somewhere else. I applaud you

for promoting that as an effort, because I think ideas like that will

let us actually do a lot better job of cleaning up the environment.

Mr. PARRIS. Yes. And I might add, too, since it is done in place,

we’re not talking about two different cleanup entities here. When

ground water is, in fact, involved, it is cleaned up simultaneously

with the soil. It’s a total package-type concept, and we don’t segregate it into, again, operable units or anything. We go in, we assess the site, and we treat what we see on a site-specific basis.

Mr. MCINTOSH. You were willing to test this at your own expense

at that site?

Mr. PARRIS. That is correct.

Mr. MCINTOSH. So they wouldn’t even allow you on the site to

do that, at really no expense to the Government or any of the parties?

Mr. PARRIS. No, sir.

Mr. MCINTOSH. A real quick question, Mr. Lynch, and maybe we

will give you time and some of my colleagues to answer this in

more detail, but if you could be thinking of some particular examples in making your points, which I found very telling in terms of

the problems with litigation and the power of the bureaucratic imperative.

You have worked a lot in New Jersey, in that State?

Mr. LYNCH. Yes, sir.

Mr. MCINTOSH. Are there some particular sites there that have

been delayed as a result of those problems you raised?

Mr. LYNCH. There have been lots of delays in the cases that we

deal with involving people fighting over issues that, unfortunately,

they have to fight over under the structure of the statute; yes. In

landfill cases where we are trying to remediate—the State threw

a lot of landfills on the list at the outset—basically underlying decisions to throw municipal garbage into the ground water of what

previously was a swamp or a sand pit.

People realized that they are being asked, if they have one drum

of dimethyl nasty, as an industry, to clean up what is essentially

a public health problem resulting from an improvident siting of a

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dump, and they fight it. They try to bring as many other parties

in as they can.

In the lead sites, where a responsible manufacturer may have

been recycling its scrap lead to be cast back in ingots and brought

back on the site, they are getting sued for joint and several liability

because thousands of gas stations sent their used auto batteries to

this place where they run over them with bulldozers, pick out the

parts, and sweep everything off to the side.

You wind up with lead in the ground, but the joint and several

liability means the guy that just had sent product to get smelted

and come back had a molecule go out of the stack, undoubtedly,

somewhere along the way, and he’s jointly and severally liable for

the whole bunch. And the gas stations are saying, ‘‘You can’t mean

me,’’ and the operator is out of business. That’s the kind of site we

have there.

There’s currently ongoing a site for the 6 miles of the Passaic

River. You know, Newark was founded in 1666. This is a 330-yearold industrial sewer, basically, and somebody is after one company

to do a study that’s costing over $30 million, to find out what’s

going on in the sediment, in the hope of possibly picking them up,

putting them in drums at $500 a drum, to the depth of 10 feet, 100

feet wide and 6 miles long, and shipping it off to Emile, AL.

That company is running around trying to beat up on every other

company that had anything within 100 miles—well, 10 miles anyhow—to say, ‘‘You might have had one scintilla of stuff; therefore,

you are joint and severally liable. Join me as we face this hundreds

of millions of dollars of liability.’’ And people are saying, ‘‘Not me,’’ fighting it back and forth. You know, it’s providing a living for

me—thank you very much—my kids are already through college.

But as a matter of public policy, it’s crazy.

Mr. MCINTOSH. You’re not able to get any actual cleanup done

during all of that time.

Mr. LYNCH. We’re getting some sites done. We just finished a

deal on the second phase of the Gems landfill where I’m common

counsel. The first phase was $32.5 million. We brought it in on

time and under budget. We’re now addressing the ground water.

We got the $30 million raised, and the trust is formed to go deal

with it, and the consent decree is out for public comment.

We’ve got a lot of companies that are putting their shoulders to

the wheel and willing to do it. A lot of them are saying, ‘‘I’m being

dragooned. I’m facing Federal court for years and years and years,

and they won’t let me out, and I really am a little part of it.’’ And

frankly, they get their arms twisted, and they throw in $100,000

and, you know, you start building a $30-million pot of such inconveniences. That’s part of the reality.

But there is progress being made. I’m not saying that. I think

your question about how do we speed this thing up, respectfully,

if you were the board of directors of an aircraft company that made

planes that were unsafe, that were delivered late, that cost too

much, and you aggravated the customers all along, you wouldn’t be

sitting here saying, ‘‘How can I deliver them faster?’’

You know, you’re focusing on the wrong thing. The problem is

structurally with the program. The agency, I believe—I’ve met an

awful lot of very fine, intelligent people in that agency, and they

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are trying to do what they are told. To judge them by how fast they

are counting beans instead of how many lives and how much of the

environment they are protecting for the dollars available is really

the wrong way to go.

Mr. MCINTOSH. So you are urging fundamental changes in the

program.

Mr. LYNCH. Yes, sir. This generation ought to decide how much

of its gross domestic product it can devote to what was disposed of

before manifests were available in 1978 and go spend it and get

bang for the buck. Right now we’re creating something, designating

it a site, pushing it through the system, and wondering how long

we can do it. We’re grading these people on sites, not lives. That’s

stupid.

Mr. MCINTOSH. Thank you.

Mr. Sanders, do you have questions for this panel?

Mr. SANDERS. I do, just a few. Thank you very much, Mr. Chairman.

First of all, I want to thank all of you for coming. As you know,

the concern that we had is not hearing from experts, but from people who are in the trenches. We appreciate it. The only concern

that we had is, we received your testimony very, very late, and

really didn’t have a chance to—and that’s not your fault at all. We

understand that.

The other point that I would simply make—and perhaps you

would agree with me—there are some charts over there. Some of

us have a problem with the methodology regarding that report. I

don’t think any of you are experts in GAO methodology or in tracing how fast or not fast the Superfund has been cleaned up in the

last 15 or 20 years. You don’t have any expertise in that, do you?

You are businessmen who are involved in cleaning up Superfund,

so you really don’t have much expertise in what you have been

asked.

Mr. Parris, I very much appreciate the thoughts that you shared

with us and can appreciate your frustrations. I was a mayor of a

city for 8 years. Dennis Kucinich is not here. He was mayor of

Cleveland for a while. I think you would also agree that, on a particular case, you went in with a proposal; you feel you were not

treated appropriately by the EPA. You would undoubtedly agree,

would you not, that there may be another side to the story? Maybe

you’re right; maybe you’re not. But there are two sides to every

story; is that correct?

Mr. PARRIS. That’s correct.

Mr. SANDERS. And the problem that we all have, none of us really have detailed information. I was a mayor. My God, how long it

took; right? We have to read the reports, and we hear both sides,

and we have to make difficult decisions. So you have come to us

with a concern; maybe you’re right. I’m not here to say that you’re

not. Maybe you’re not right. I don’t know.

Mr. Lynch, I appreciate your thoughts. I think you made some

very good points, but I did not hear you say that in recent years

the situation has deteriorated, that it was really good during the

1980’s, but in the last 3 or 4 years, since President Clinton has

come in, there has been a rapid deterioration in progress. All of

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these concerns are new, never been seen before. You didn’t say

that, did you?

Mr. LYNCH. First of all, sir, I haven’t voted for a Republican since

Goldwater. OK? So my inclinations are to your side of the fence.

Frankly, the people I deal with at the EPA are the same. The fellow that just recently was promoted to regional counsel, I’ve been

dealing with him since 1984. The Government doesn’t have a finer

lawyer. I have not seen policy changes really affect things in the

trenches, for good or ill. People are just trying to get their job done.

They have some pretty intelligent, creative people.

Mr. SANDERS. I would just say that I think—not for me to apologize—I think you haven’t been treated quite the way you should

have been. We need your expertise, because you’re out there doing

the work, and we often don’t hear that. So I appreciate your being

here, and thank you very much.

That would be my remarks, Mr. Chairman.

Mr. MCINTOSH. Thank you, Mr. Sanders.

Let me turn now to the vice chairman of the subcommittee, Mr.

Sununu.

Mr. SUNUNU. Thank you very much, Mr. Chairman, and thank

you gentlemen very much for your patience today and your very

substantive testimony.

I believe you were here this morning to hear Congressman

Pallone speak, and certainly I have a great deal of shared sense of

concern. As he stated, nine Superfund sites in his district. Coming

from the First District of New Hampshire, I’m sorry to say I have

14 Superfund sites in my district. I will also agree with him that

we have had some degree of success. The State agencies in our

State have worked extremely hard, hand in hand, in some cases,

with the EPA to make as much progress as is possible.

But I think the underlying point that we need to stress in these

hearings today isn’t a discussion about whether or not some success has been achieved, or a congratulation that technology may be

improving and may hold some promise, the fact is, it takes a tremendous amount of time to clean up these sites. It has since the

inception of the Superfund program. It takes far more time to clean

up these sites, I think, than most people in the public realize.

Equally important, there is great concern and a good deal of evidence that the amount of time to clean up a given site, many would

agree, is increasing. I think most would agree it certainly isn’t decreasing. And that’s what we ought to concern ourselves with is

what’s happened to the process here and, more importantly, are

there ways to improve the process. I think we’ve heard discussion

today of improvements that might be made on the technological

side, improvements that might be made on the legal side, and certainly I hope that, as a committee, we can pursue these.

I would like to address a few questions to Mr. Parris. First, give

us a feel for your organization. How many companies are we talking about in your consortium that are dealing with these more forward-thinking technologies? How many professionals are we talking about? Give us a sense of where they are located and to what

extent they have been able to get themselves involved in some, if

any, of the existing NPL-listed sites.

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Mr. PARRIS. Basically, we have approximately 20 people in the

consortium at this time, and they range from New York State down

through Georgia, the Carolinas, Florida, and as far west as Ohio,

Indiana—pretty much on the East Coast. Basically, we are brought

together via the computer, Interneting, working with new ideas,

putting things on the Internet, buzzwords that would attract people

and different types of technologies to respond.

We’ve gotten people that have gotten into the phytoremediation,

the use of plants to sequester heavy metals and this sort of thing.

Biomats; we have some gentlemen that are very into that. But,

again, our main focus—we can do the pump-and-treat systems, we

can do the dig-and-haul, if that’s required—but I think, right now

and with the expertise that we have with these people, it’s just outdated, old technology that we just don’t want to deal with, and we

have a much better way to do it.

We don’t, again, look at operable units. We can clean a site of

all the contaminants as a single unit, and we can do it very proficiently. We look at co-treatments, for example. Mr. Castle is an

expert in polymer chemistry. And we’ve developed a lot of co-treatments that were not available several years ago.

Everything that we do, co-treatments, different types of hydrological manipulation, anything that we can do to increase the viability of the cells to cause this type of remediation to go on—after

all, we’ve got to give an environment for the organisms to work,

and this is something that was overlooked in the past.

In this consortium, these people that are involved, the polymer

chemists, the chemists, the biochemists, the microbiologists, we’re

all looking at ways to improve the plight of the organism in the

ground. We’re looking to increase viability. We’re looking to increase cell counts, and ultimately to reduce the time that it takes

to clean up these sites.

Mr. SUNUNU. What percentage of the NPL sites that are out

there do you think would be suitable candidates for the bioremediation techniques?

Mr. PARRIS. I would estimate in excess of 90 percent.

Mr. SUNUNU. Primarily those that are petroleum-related?

Mr. PARRIS. Right. Now we’re starting to get into chlorinated solvents. We’re doing very extensive work on chlorinated solvents,

which a few years ago were not even considered to be bioremediable.

Mr. SUNUNU. Are there any other sites out there or how many

sites out there that you are aware of that are at least experimenting or allowing some sort of limited usage of bioremediation

to take place?

Mr. PARRIS. That would be hard to say. There are sites. As I indicated, the presumptive remedy for wood treater sites is, in fact, bioremediation, and there have been quite a few sites that have been

cleaned up partially using that technology.

Here again, bioremediation comes in a lot of different flavors,

and it’s dependent on the type of technology that you have, the people that are administering it, and the professionals that know how

to increase the productivity of the cells. It’s not just a simple augmentation with carbohydrates, and this sort of thing, in the soils.

It’s actually increasing the population of specific strains of orgaVerDate 11-MAY-2000 13:56 Jun 06, 2002 Jkt 078862 PO 00000 Frm 00107 Fmt 6633 Sfmt 6602 E:\HEARINGS\41517 pfrm12 PsN: 41517
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nisms in the ground that can metabolize the various organics, get

those high enough so that they outcompete the other organisms

and focus directly on the contaminant.

Mr. SUNUNU. Thank you very much.

Mr. MCINTOSH. Thank you, Mr. Sununu.

Let me check to see if there are any other questions for this

panel.

Mr. WAXMAN. Mr. Chairman, I don’t want to ask any questions

of this panel, but I want to thank them for their presentations. If

they wouldn’t mind, when I get a chance to review their testimony,

I might ask them to submit some responses in writing so we can

have it for the record.

Mr. MCINTOSH. And we will keep the record open in order to do

that.

Let me just say, I do appreciate your coming and your testimony,

and I think a couple key points have come out of it. One is that

some of the reforms that were, in fact, put into place need to be

more fully utilized out in the field.

And, Mr. Parris, you’ve got bioremediation as one example of

that.

I think your point, Mr. Lynch, that when you’ve got a bad system, good people can’t do a good job, and that they are not personally responsible for that; they are trying to do their best, but the

system itself leads to results that none of us want.

So I do appreciate all of you coming and testifying today and

helping us build this record. It is my fondest hope that we can see

some reform in this area in this Congress, in a bipartisan fashion.

We got close last time, and I think we’ve got a chance this time.

Mr. LYNCH. May I respectfully sensitize you to one thing raised

in the comments about Mr. Pallone’s testimony. And I ask you, in

testing these data, to keep this point in mind, because I think you

will find it helpful. Three of the sites that Mr. Pallone cited were

EPA emergency response or quick remedial action. I’m not talking

about what—that’s probably a pretty good program.

The Kenbuck site was essentially a single party, the owner, SCP,

now Waste Management—they claim they are only an operator or

only a transporter—it was a single-party cleanup site, and that’s

not a part of the program that’s having the problem.

When you see data like this and you have those kinds of things

mixed in, you ought to be sensitive to the fact that most of the

grievances come from what are called multiparty sites. Somebody

sent a little bit of waste somewhere with a bunch of other people.

That’s a discrete universe that is mixed in there. Unless you are

sensitive to that, you’re going to miss a lot of what really you’re

going to have to deal with.

Mr. MCINTOSH. Let me make sure I’m following you. The problems are much greater in the multiparty sites than in the single

party?

Mr. LYNCH. By orders of magnitude. The potential for governmental abuses, in terms of overbearing on the poor guy that gets

caught, are much greater.

Mr. MCINTOSH. That’s very helpful.

Thank you all. We appreciate your coming.

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Let us move now to our second panel: Mr. Peter Guerrero, who

is the Director of Environmental Protection Issues; Mr. Stanley

Czerwinski, Associate Director; Mr. Jim Donaghy, who is Assistant

Director; and Mr. Mitchell Karpman, who is a statistician, all from

GAO; and then Mr. Elliot Laws, who is the Assistant Administrator for Solid Waste and Emergency Response.

Mr. Laws, thank you for coming today. I understand it’s your last

day of service in that position. I congratulate you on serving the

public and appreciate your coming before us.

It is my understanding that Mr. Waxman and Mr. Sanders would

like us to implement the new rule that we have of allowing each

side to have 30 minutes uninterrupted to question the panel as a

whole.

Mr. WAXMAN. Mr. Chairman, I know that we’re going to have

some more extensive questions. Maybe we can just allow a little bit

more leeway on the timing to pursue those questions. I don’t know

if we need to be rigid in saying a half hour each side. However you

want to conduct it.

Mr. MCINTOSH. A little extra time for the entire panel after they

have presented.

Mr. WAXMAN. Yes. Let them present their testimony, and then

if the chairman would be indulgent with the Members to some extent. I know I probably would take 10 minutes rather than 5 minutes. So maybe we can just handle it on an informal basis.

Mr. MCINTOSH. If no one objects, I am very happy to do that.

OK. If all of the witnesses would please rise and repeat after me.

[Witnesses sworn.]

Mr. MCINTOSH. Thank you very much. Let the record show that

each of the witnesses answered in the affirmative.

Let me now turn to Mr. Peter Guerrero. If you could please summarize for us the findings of your draft report and any other remarks that you would like to make.

STATEMENTS OF PETER GUERRERO, DIRECTOR, ENVIRONMENTAL PROTECTION ISSUES, RESOURCES, COMMUNITY

AND ECONOMIC DEVELOPMENT DIVISION, GENERAL ACCOUNTING OFFICE, ACCOMPANIED BY STANLEY

CZERWINSKI, ASSOCIATE DIRECTOR; JIM DONAGAHY, ASSISTANT DIRECTOR; MITCHELL KARPMAN, MATHEMATICAL

STATISTICIAN; AND ELLIOT LAWS, ASSISTANT ADMINISTRATOR FOR SOLID WASTE AND EMERGENCY RESPONSE

Mr. GUERRERO. Thank you, Mr. Chairman.

We are pleased to present the results of our examination of the

times to complete the evaluation and cleanup of Superfund sites.

This work was done at the request of the chairman of the House

Government Reform and Oversight Committee, and we plan to

issue a report on our findings to the committee next month.

We divided the Superfund process into two major segments: first,

the evaluation phase that occurs from the time a site is discovered

to when it is finally placed on the Superfund cleanup list; and second, the cleanup phase that occurs after listing, during which more

site studies are done and cleanup remedies are selected, designed,

and constructed. Each of these phases are represented in the

charts to your left.

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First, I would like to discuss the earlier of these phases, from the

time of discovery to listing. As the chart illustrates—and that’s the

closest one to you—the sites that were listed in 1996 were discovered an average of 9.4 years earlier. While this is an improvement

over 1995, it is longer than earlier listing times.

SARA requires EPA to evaluate sites for listing within 4 years

of discovery. However, the percentage of sites for which EPA has

made listing decisions within 4 years of discovery has decreased in

each succeeding year, from 51 percent in 1987 to 36 percent in

1991, the last year for which it is possible to measure these percentages.

There are a number of reasons why the time from discovery to

listing has increased over the years. A major factor was that the

Superfund program started with a backlog of sites awaiting evaluation, so not all sites could be processed at once. Other factors include revisions to eligibility standards that require the re-evaluation of many sites, the need to seek State concurrence for listing,

and reductions in the annual number of sites that EPA added to

Superfund in more recent years.

This last factor will have a profound influence on listing times

in the future. In recent years, EPA has concentrated on cleaning

up sites that have already been listed. As a result, EPA has recently added an average of only 16 sites per year to the National

Priorities List for cleanup. Yet somewhere between 1,400 and 2,300

more sites could potentially be added in the future.

I would now like to turn to the time it takes to complete cleanups

after sites are added to the Superfund list, the time period represented by the next chart, the chart in the middle. As you can see,

cleanup projects were completed in fiscal year 1996 onsites that

had been placed on the Superfund list on an average of 10.6 years

earlier.

As with listing, cleanup completion times have also increased

over the history of the program. EPA set a goal in 1993 to complete

cleanup within 5 years of a site’s listing, using this as a reasonable

benchmark for the program. We found that the percentage of cleanups within 5 years of listing has increased from 7 percent for sites

listed in 1986 to 15 percent of sites listed in 1990.

Overall, EPA has completed construction of cleanup remedies at

over 418 Superfund sites, and construction is underway at another

491 sites. The increase in cleanup times was accompanied by a

marked increase in the time taken to select cleanup remedies or

the study phase of the cleanup process, and a time, also, during

which attempts are made to reach settlements with parties responsible for contamination of sites.

This study phase was completed in about 21⁄2 years after listing

in 1986, but took about 8 years after listing in 1996. EPA officials

attributed this increase and the increase in listing times to the

growing complexity of sites, efforts to reach settlements with parties responsible for contamination, and resource constraints.

In conclusion, Mr. Chairman, I would like to make a number of

points. First, average times to cleanup and list sites have increased

over the history of the program. Increasing cleanup times are a

concern because of the large number of sites that could be listed

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in the future, as well as the amount currently in the cleanup pipeline today.

As the third chart shows, while EPA has made progress at many

sites, completing the construction of remedies at over 400 sites,

construction work does still remain to be completed at up to 800

more. In addition, from 1,400 to 2,300 sites could be added to

Superfund in the future.

Second, EPA has a number of reform initiatives underway to reduce timeframes and costs, but evidence that they are accomplishing this is largely anecdotal. Our analysis, while showing the

progress of the program and the trends associated with the time

required for key segments of the Superfund process, does not allow

us to assess whether these reform initiatives are having the intended effect of lowering program timeframes and costs.

I should add that showing these effects is difficult, since these reforms were largely put into place in 1994, or more recently and, by

EPA’s own admission, could take up to a decade to show results.

Finally, measuring the results of a program as complicated as

Superfund is a challenging task at best. The approaches we have

used have the advantage of showing both how long it has taken to

complete Superfund actions as well as whether Superfund’s legislative and program goals are being met. They also highlight the

growing times being spent deciding what to do with sites in comparison to the relatively short times actually spent cleaning them

up.

This concludes my statement. As you know, we will be working

with the committee and others to support the Congress as it works

to reauthorize Superfund. I will be happy to answer your questions.

[The prepared statement of Mr. Guerrero follows:]

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Mr. MCINTOSH. Thank you very much, Mr. Guerrero.

Let me turn now to Mr. Laws. If you could share with us your

testimony. Thank you.

Mr. LAWS. Good morning, Mr. Chairman. Thank you very much.

I have a written statement for the record.

I am pleased to appear here today to discuss the current status

of the Superfund program, focusing on the accomplishments of our

administrative reforms. Mr. Chairman, as you know, the agency

has a policy that its representatives not testify on draft reports.

Therefore, I will not be able to comment today on GAO’s draft report and testimony, nor will I be able to answer questions concerning the draft report and testimony.

I will be happy to answer questions about the current status of

the Superfund program, and once the GAO report is completed and

the administration has had an opportunity to review it, an agency

representative will be pleased to testify before the subcommittee

about the report.

Today, the Superfund program is hard at work cleaning up toxic

wastesites and protecting human health and the environment. Unfortunately, the current success of the program is seldom accurately characterized. In the past few weeks, several public statements were made that only 30 Superfund sites have been cleaned

up. Statements like that are so patently false that I would like to

take this opportunity to set the record straight.

Mr. Chairman, today 418 Superfund sites have been cleaned up.

More than 480 additional Superfund sites have cleanup construction underway. In other words, 70 percent of all Superfund sites

are either cleaned up or under cleanup construction. Today, EPA

is protecting thousands of families along the Gulf Coast of the

United States by cleaning up homes and small businesses poisoned

by the misapplication of the pesticide methyl parathion.

This is just one of the sites that the Superfund program has addressed, immediate threats to human health and the environment.

We have performed over 4,000 of these emergency cleanup actions.

The current success of the Superfund program can, in part, be

attributed to the administrative reforms undertaken by EPA and

the Clinton administration. Three rounds of administrative reforms

and selected Federal facility reforms were developed to increase the

pace of cleanup and ensure the selection of commonsense, protective cleanups, and increase the fairness of the liability system,

while reducing litigation and transaction costs.

These reforms are working. In a report issued in December 1996,

the Superfund Settlements Project acknowledged the agency’s substantial track record since the agency began implementing the administrative reforms. I believe others have made reference to that

report, as well. This is a private analysis of just a sample of our

administrative reforms, and it supports the findings of our Superfund Administrative Reforms Annual Report for fiscal year 1996.

Our administrative reforms were based on a fundamental set of

principles. EPA set out to increase the pace of cleanups, lower the

cost of cleanup, while maintaining long-term protection of human

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action costs. We sought to involve States and communities in

Superfund decisionmaking, and promote the economic redevelopment of Superfund and brownfields sites.

As I mentioned, pace of cleanup is one of the program areas that

EPA administrative reforms have focused on. Historically, the pace

of Superfund cleanups has been affected by many factors. In the

early years of the program, there was a tremendous agency learning curve on how best to cleanup Superfund sites. Congressional

review of site-specific listing and remedy decisions and lapses in

program funding have also affected the pace of cleanup.

I will briefly discuss some of the administrative reforms, and a

more detailed summary of them appears in my written testimony.

To increase the pace of cleanup, EPA is using more standardized

or presumptive remedies. These remedies are based upon the scientific and engineering experience which we have gained from hundreds of cleanups performed or overseen by the agency. Presumptive remedies allow us to simplify and expedite the remedy selection process.

To reduce cleanup costs, EPA has established a Remedy Review

Board to review proposed high-cost remedies at Superfund sites. In

fiscal year 1996, the board reviewed 12 proposed cleanup remedies,

resulting in potential future savings of $15 million to $30 million

in cleanup costs.

We also established a technical review process where targeted

remedies are reviewed to determine whether new cleanup technologies may be applied that will reduce the cost of cleanup while

still providing the long-term protection of human health and the

environment. These reviews alone have provided approximately

$280 million in potential future cost savings.

EPA is now offering orphan share compensation to encourage

settlements and reduce litigation and transaction costs. Under the

new orphan share administrative reform, EPA offers to forgive past

costs and future oversight costs of settling parties to cover all or

a portion of the orphan share represented by insolvent parties. In

fiscal year 1996, the agency offered more than $57 million in orphan share compensation to responsible parties at 24 Superfund

sites.

EPA has increased liability fairness and efficiency by publicly offering to reach no-cost—that is, zero-dollar—settlements to the

smallest waste contributors, known as de micromis parties, to provide litigation protection from large waste contributors. EPA is also

aggressively entering into de minimis settlements to get small

waste contributors quickly out of the Superfund liability system.

More than 14,000 de minimis settlements have been reached by the

agency; more than two-thirds of those accomplished during the past

4 years.

States are now assuming more responsibility for waste cleanups

under several administrative reforms. EPA is sharing authority to

select cleanup responsibilities with qualified States and tribes.

States and tribes will be able to select remedies at Superfund sites

with minimal EPA oversight.

A recently issued EPA memorandum that established criteria for

voluntary cleanup programs is paving the way for additional memorandums of agreement to be entered into between States and

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EPA. These agreements govern the division of responsibilities for

wastesite cleanups. Eight States have agreed to MOAs, and several

more agreements are close to completion.

EPA is expanding its efforts to redevelop abandoned and contaminated properties throughout the Nation. We have funded 76

brownfields pilots to encourage State and local governments and

private developers to identify and assess contaminated properties

and work together to clean up and redevelop those properties.

Mr. Chairman, the Clinton administration is committed to making the Superfund faster, fairer, and more efficient. The Superfund

administrative reforms have gone a long way to help us meet that

goal.

That concludes my testimony, Mr. Chairman. I would be pleased

to answer any questions from the subcommittee members concerning the current status of the program.

[The prepared statement of Mr. Laws follows:]

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Mr. MCINTOSH. Thank you very much, Mr. Laws. I appreciate

that.

Let me now yield my questioning time to our vice chairman, Mr.

Sununu.

Mr. SUNUNU. Thank you, Mr. Chairman.

I would like to just take a few moments to talk, not necessarily

about the methodology—and I understand your concerns, Mr.

Laws, with regard to your policy—but to try to talk a little more

specifically about where we are and what the public can expect in

the pace of cleanup and the effort and the commitment that’s going

on, and hopefully find a way to improve the situation.

I will come back to that point. That’s where we need to go from

here, and I’m very reluctant, despite the commitment and the effort, not just at the Federal level, but at the State level, as well,

to deal with this problem. I don’t believe that we ought to suggest

that all is well, that we’re streaming along, that everything is

working efficiently or as efficiently as it can, because that detracts

us from the most important aspect of these hearings and of our

goal, which should be to improve the current process.

Mr. Laws, you spoke about 410 sites that have been completed,

have been cleaned up. My question for you first is, 410 sites

cleaned up, how many of those sites have been delisted?

Mr. LAWS. A very small portion; 120, approximately, have been.

Mr. SUNUNU. So less than half of those have been delisted. So

despite the fact that we use terms like ‘‘cleaned up,’’ the fact is that

they remain hazards, that there is still an issue out there even for

the vast majority of those sites.

Mr. LAWS. I wouldn’t characterize that they remain hazardous.

What construction complete indicates is that all of the construction

necessary to clean up a site has occurred. There are a lot of operation and maintenance responsibilities that go on.

Mr. SUNUNU. So they are contained.

Mr. LAWS. It’s more than contained. There are things that will

go on. You have to realize that in a lot of these sites it took, literally, hundreds of years to create the contamination. You can’t

make it go away in 4 or 5 years; that’s just impossible.

No one is suggesting that all is well in the Superfund program.

This administration is probably the first one to admit that there

were major problems in the administration and the law of Superfund, and we’ve taken tremendous strides in correcting that. What

we are saying is that we think the program is improving; that is,

it’s different from the program that was in existence 5, 10, or 15

years ago.

We are in no way saying that it is fixed. We are still supportive

of comprehensive Superfund reform legislation, but what we are

saying is that the debate on how to fix Superfund must take into

account how this program is operated today, and not go back and

listen to war stories about how the program was run 10 and 12

years ago.

Mr. SUNUNU. I would certainly agree, generally, with those remarks. Again, I appreciate the efforts that are being undertaken

every day by people at sites. As I mentioned, people are undertaking those efforts at a large number of sites, in my district, in

particular.

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So when we throw the 410 number, that refers to areas where

the construction is complete, and obviously there is still activity

going on. Let’s try and get a handle on how long that construction

phase takes place. Another number that I have heard discussed is

that, over the past 4 years, 250 sites have been cleaned up. Now,

again, I guess that means at 250 sites we have completed construction; they haven’t been delisted.

Mr. LAWS. That’s correct, sir.

Mr. SUNUNU. But of those 250 sites that have been cleaned up

in the past 4 years, how many of those were listed and cleaned up

in the past 4 years? In other words, on how many of those sites

has the cleanup activity actually taken or construction activity actually taken 4 years or less?

Mr. LAWS. Of the sites that have been cleaned up in the last 4

years, are you asking when were they listed?

Mr. SUNUNU. No, I’m saying, we hear the phrase ‘‘250 sites with

completed construction.’’ So 250 sites with completed construction,

but how many of those has the construction period actually taken

4 years or less?

Mr. LAWS. There have been some. I mean, we would have to

break out the entire list. We can provide that to the subcommittee.

Mr. SUNUNU. Do you have any feel? Because I don’t want to just

use one statistic to characterize all 250 sites. If we don’t have an

answer to that question, what is the average time to clean up those

250 sites? We see an average construction time of 12.5 years; that’s

the current average, but I’m trying to get a better feel for the 250.

Mr. LAWS. We believe the current average is closer to 8 to 10

years.

Mr. SUNUNU. So for the 250 where we have completed construction, we’re still talking about 8 years, 10 years, or perhaps even

more, on average, to clean up a site.

Mr. LAWS. We think it’s 8 to 10. We think it’s going down. And

we think that once we get continued benefits of the administrative

reforms that it will go down even further by the year 2000. Clearly,

Congress can help us. If we get a Superfund reform law, we could

probably shave some more time off.

Mr. SUNUNU. I’m looking forward to doing everything I can to

help you decrease that amount of time. But to be clear, you think

that the average time to clean up a site is going down?

Mr. LAWS. Yes.

Mr. SUNUNU. Has the agency been able to present statistical evidence that would indicate that the average time to complete construction at a site is going down?

Mr. LAWS. We do have our analysis to support our position, and

we can provide that to the subcommittee.

Mr. SUNUNU. I would be interested in any statistical evidence

that you might be able to present. Let me try and look at one other

way to determine whether or not the amount of time for construction is going up or going down, and that is to look at the rate that

we’re completing sites. We all know the NPL is actually increasing,

and that’s a fact of the large number of sites that are out there.

So we have a list of sites whose total number is increasing. We

have, obviously, a large degree of resources being committed, and

rightly so, to the effort. At what rate? How many sites per year

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have we been able to complete construction on over the past—

again, just talking in 4- or 5-year terms—in the past 4 or 5 years,

how many sites are we, on average, completing construction on per

year?

Mr. LAWS. We’re averaging now 64 to 65. I would point out that

in the President’s budget he has asked for a substantial increase

for the Superfund program to address that very problem, that we

do have a backlog of sites that are ready to go, that can be cleaned

up in a short timeframe. We are anticipating that, by the year

2000, we will be able to clean up, under current budget levels, an

additional 250 sites. The President is proposing to double that to

500 sites, and his budget reflects the amounts of money that will

be necessary to accomplish that.

Mr. SUNUNU. I understand that, and I appreciate that commitment. I will also point out that I am pleased that it shows a funding commitment similar to that that was proposed in legislation in

the last session of Congress, as well.

You are averaging 60 or 65 sites per year, construction completed, now; 3 or 4 years ago, what was the average; how many

sites were you completing per year?

Mr. LAWS. That has been the range for about the last 4 or 5

years.

Mr. SUNUNU. So the rate hasn’t changed, unfortunately. The

number of sites we’re completing construction on per year really

isn’t increasing at all.

Mr. LAWS. No, but there are a lot of factors that go into that.

That could be and most likely is a reflection of what our budget

levels have been. I mean, that’s the reason that a lot of these reforms have been implemented. The reason we have gone to a national prioritization system is that we have got a lot more sites

that are ready, that could be cleaned up, than we have dollars to

fund them.

Mr. SUNUNU. And I appreciate that.

Mr. LAWS. So what we’re seeing with the dollars is just a reflection of the steady state of the Superfund budget over the last few

years.

Mr. SUNUNU. So with the current funding levels, improvements

in technology, improvements in effort, improvements of efficiency

that may have taken place over the past 3, 5, 6 years hasn’t improved your ability to clean up a greater number of sites.

Mr. LAWS. I would not agree with that, Congressman. I mean,

what I’m saying is that the numbers that have come in, because

of our funding capabilities, have gone down. The numbers of sites

that are ready, that could be cleaned up in a shorter amount of

time, increased significantly. We had sites at the end of last year

that we couldn’t fund, that were ready to go to construction, that

we couldn’t fund. That number went up the last fiscal year, and it’s

going to go up this fiscal year, as well, and that is part of the reflection of the President’s budget request for fiscal 1998.

What we have done is gotten more sites to the point where we

can make a big influx of dollars to clean them up, but we don’t

have the dollars to do that, so they are going to sit there until we

get those dollars.

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Mr. SUNUNU. To clarify, my point is that, for a given amount of

money, I believe we should be able to find ways to employ new

technology to improve the practices we have, to increase the number of sites that we are completing construction on, for a given

year, for a given amount of funding.

Mr. LAWS. I agree with you wholeheartedly.

Mr. SUNUNU. I think that the overall funding levels have been

relatively consistent, but we have not been able, unfortunately, to

see an improvement in the number of sites that we completed.

One last question—and then I will certainly yield to anyone else

that would like to ask some questions—and that is, you talked

about trends or a trend of reduced time to complete construction,

which I think interests us all, and statistics or data that you might

have to show this positive trend. How many sites are included in

the sample that is used to identify that overall trend?

Mr. LAWS. That is by looking at all of the sites on our construction complete list, the 410.

Mr. SUNUNU. So you look at all 410 sites, and you are saying,

by analyzing that data, you show, on a year-by-year basis, we’re reducing the total time for construction?

Mr. LAWS. To complete the construction; that’s correct, sir.

Mr. SUNUNU. And that’s information that you would be comfortable sharing with the committee?

Mr. LAWS. Oh, of course.

Mr. SUNUNU. Thank you very much.

Thank you, Mr. Chairman.

Mr. MCINTOSH. Just let me follow up very quickly on that. Mr.

Shuster, last August, had written complaining that data supporting

the assertion that there was a 25 percent accelerated pace of cleanups hadn’t been received. Has he been provided that data?

Mr. LAWS. Not all of it.

Mr. MCINTOSH. No. Is that the same data that you are referring

to here?

Mr. LAWS. Yes.

Mr. MCINTOSH. When will they be able to make that available?

Mr. LAWS. Within the next 2 weeks.

Mr. MCINTOSH. Within the next 2 weeks. OK. Thank you very

much.

Let me now recognize Mr. Sanders for 10 minutes.

Mr. SANDERS. Thank you very much, Mr. Chairman. I’m going to

yield to Mr. Waxman in a moment. I would just like to begin by

making two points. I think we can all agree that coming with an

objective and fair assessment of how well an agency is dealing with

this very, very complicated problem isn’t easy.

Several examples: We talk about the number of Superfund resolved and cleaned up. I trust that there is no disagreement

amongst you or the members of this committee that you could have

one site which is in terrible shape, which requires a whole lot of

money, and you could have the agency do an excellent job on a

project which takes many, many years. And then you could have

10 other sites which do not have serious problems, and the agency

could do a bad job and yet clean them up in a short period of time.

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You lump them all together, and we say, ‘‘Well, gee, they didn’t

do a good job here,’’ or ‘‘They did do a good job there,’’ and you end

up with a conclusion that means absolutely nothing.

Mr. Laws, is that a fair assessment of the situation?

Mr. LAWS. I think that would be.

Mr. SANDERS. So you throw all these things in the hopper; they

end up suggesting perhaps nothing.

Second of all, what I would suggest—and we will get into this at

some length later—we have some very, very serious problems with

the methodology that the GAO used, and we will talk about that

later. But I would hope, Mr. Chairman and members of the committee, that we could all recognize this is, in fact, a very, very complicated problem.

I would now yield to the ranking member of the entire committee, Mr. Waxman.

Mr. WAXMAN. We’ve changed the rules on the way committees

operate, and we can do a half hour on each side, but rather than

do that, the Chair seems to be indulgent of Members to go a little

bit longer than ordinarily is the case, just to complete our questioning. I thank him very much for that courtesy to us.

I want to talk about this methodology for this GAO report, because it’s important, when we use numbers in public policy, we

make sure we’re using the right numbers. In my work with environmental issues, I’ve learned to take nothing at face value.

As I understand, Mr. Guerrero, how GAO did its evaluation, it

took EPA’s data to determine the date each site is discovered, listed, and determined to be cleaned up. Then you looked at the sites

that are listed in a given year and calculated the average numbers

of years between the discovery and the listing. And then you calculate the average cleanup time the same way; that is to say, you

look at all of the sites determined to be cleaned up in a given year,

and then calculate the average years since the listing.

So you go backward. You take what happened in a given year,

and you go backward to when it was first listed. I have worked

with GAO in the past, for many years. I asked GAO to do an evaluation for me on drug issues. I want to have a chart about that,

because I’m going to show you what GAO said about this kind of

an evaluation.

But the reason I’m concerned about how unfair the methodology

is, we know that during the Reagan years the administration was

hostile to Superfund, so hostile, in fact, that the person in charge

of it went to jail for failing to enforce the law. Few sites were

cleaned up in the beginning. Most sites were deferred.

Under your methodology, because you ignore the sites that aren’t

cleaned up, the Reagan administration looks very good. Its average

cleanup time for those very few sites that it cleaned up is short.

Wouldn’t that be the case?

Mr. GUERRERO. I’m sorry, I didn’t follow the question.

Mr. WAXMAN. If you looked at the Reagan years, you would have

to say they had a pretty good record, because they didn’t take on

a lot of sites, but what they took on they cleaned up real quickly.

Mr. GUERRERO. Well, for that reason, Mr. Waxman, we did not

include that data in our analysis.

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Mr. WAXMAN. But for your methodological approach, if you

looked at it, the way you analyzed this issue, you would have to

say they had done a pretty good job. On the other hand, the current administration’s record looks poor. The current administration

is cleaning up this huge backlog of cases. These are sites left over

from the early 1980’s.

It is certainly good public policy to clean up this backlog, but

under your approach, the Clinton administration, to evaluate them,

they get penalized. It looks like their average cleanup time goes up

because you include in that average cleanup time the huge backlog

of sites left over from the prior administration. So a methodological

approach that makes an administration that is doing a good job

look bad, while making a bad administration look good, seems

flawed to me.

Now, I have this quote here. This is a quote from GAO, and this

quote says that—when you measure the time it takes to get FDA

approvals for drugs—GAO said, ‘‘Whenever the possibility of a

backlog exists, basing time on year of approval is a less appropriate

way to measure current practice because it incorporates older applications. In contrast, time based on year of submission eliminates

the confounding effects of the backlog and, therefore, is the preferable measure.’’

Now, it’s my understanding that there is a considerable backlog

in cleaning up the Superfund sites, and that was your testimony,

as well. Does your measure follow the guidelines given in the GAO

report that I have cited?

Mr. GUERRERO. We certainly took that into consideration when

we developed our measures.

Mr. WAXMAN. But you didn’t use their evaluation method; you rejected it.

Mr. GUERRERO. We used a different evaluation technique because

we were attempting to show a different thing.

Mr. WAXMAN. Well, the measure you use in your report, I think,

is less appropriate as a way to measure the current practice. I find

it troubling that you are putting on measures that your own organization would find misleading, because GAO says whenever you go

look at a situation where there is a backlog, if you measure the

time for approval without looking at the time it took to deal with

the whole backlog, you are clearly going to get a longer period of

time. It’s going to make it look worse.

Mr. GUERRERO. We don’t dispute the fact that a backlog can influence that, but we did not set out to look at current practice and

current timeframes. We looked at how could you describe the productivity of this program over time.

Mr. WAXMAN. OK. Well, let me walk through your methodology

with you, and I want another chart to go up. I’m going to give you

a hypothetical situation. Let’s say there’s no policy change, only a

few sites, and cleanup progresses at a steady pace.

Suppose there’s an agreement to list 10 sites in the first year and

to clean up those 10 sites at a rate of 1 every 2 years over the next

20 years. The next year we list another 10 with the same agreement; we clean up 1 of those sites every 2 years for the next 20

years. The third year we list another 10 sites with the same agreeVerDate 11-MAY-2000 13:56 Jun 06, 2002 Jkt 078862 PO 00000 Frm 00153 Fmt 6633 Sfmt 6602 E:\HEARINGS\41517 pfrm12 PsN: 41517
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ment. In other words, nothing changes from year to year; 10 sites

are listed, and those 10 sites are cleaned up over a 20-year period.

Now, let’s look at the chart to the left. This chart shows the data

in the way your organization said was the preferable measure, at

least when we asked them to look at the backlog of drug approvals.

The 10 sites listed in year 1 took, on average, 11 years to clean it

up. The 10 sites listed in year 2 took, on average, 11 years to clean

up, and so on. In other words, a straight line on that chart shows

there is no change in policy and, therefore, the average cleanup

time does not change from year to year.

Wouldn’t you say, as you would evaluate that progress, that it’s

proceeding at a steady pace?

Mr. GUERRERO. Well, I can’t speak to this specific example.

Mr. WAXMAN. Well, why can’t you speak to it? I’ve given you a

hypothetical. I’ve given you the facts, and we need to show how it

works out on a chart if you follow the exact same pattern year after

year. Wouldn’t that show that there is a steady pace of proceeding

to clean up?

Mr. GUERRERO. The difference between the listing by a completion cohort, which is what we did, and the listing here, the example

you give, by a listing cohort, is exactly the issue that EPA raised

with us in their comments to our draft report back in November.

When we looked at their numbers, we had particular problems

with using a listing cohort to assess the progress of the Superfund

program.

The particular problem was that it will always, at this stage,

show far more favorable results than the decision cohort. And the

reason for that is, it’s based simply on the observations which are

incomplete at any given time and does not take into account the

backlog.

Mr. WAXMAN. I’m talking about the problems in your methodology, and the problem in your methodology—which GAO already

indicated there are problems in that kind of a methodology, under

other circumstances—is that you, in effect, show a distorted picture

because of that impact of the backlog.

I use that example which shows a steady way that they are handling it, that 10 sites were listed, in the 5th year get cleaned up

at the same rate as the 10 sites listed in the 4th year, and the

same rate as the 10 sites listed in the 3d year, and so on. There

is no change across the time.

I would like you to put the next chart up. This shows the kind

of bias. Using your methodology, you can see that it looks like it

is going to take a longer period of time because you are calculating

from the date going backward. It shows cleanup times increasing,

when, in fact, cleanups are happening more quickly.

Mr. KARPMAN. Excuse me, Mr. Waxman.

Mr. WAXMAN. Yes.

Mr. KARPMAN. I’m not sure I follow you yet on the middle chart.

Are you saying that all of the sites are completed in 1983, and you

have the full measures of them?

Mr. WAXMAN. No, I’m saying that there are 10 sites listed in year

1, and it took, on average, 11 years to clean it up. And the 10 sites

listed in year 2, 11 years to clean that up. And each year it’s the

same.

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But if you look backward, then you are looking back at the time

of completion from the very, very beginning, and that seems to me

the fallacy in your methodology. It’s always got to be skewed. I

mean, here you have an administration that’s trying to deal with

a backlog. If you didn’t have a backlog, then it wouldn’t so distort

what is going on, using your methodology.

Mr. KARPMAN. May I make a comment?

Mr. WAXMAN. Sure.

Mr. KARPMAN. Thank you. Regarding, first, the quote, I have a

report, PEMD–96–2, which is from the same division, in which it

says, ‘‘The two methods provide different information and are useful for different purposes. Using the date of decision cohort,’’ which

is the approach GAO took, ‘‘is useful when examining productivity

and the management of resources. This method takes into consideration the actual number of applications from your request reviewed

in a given year, including all backlogs from previous years. Alternatively, using the date-of-submission cohort is useful when examining the impact of a change in FDA review policy, which quite

often only affects those applications submitted after its implementation.’’ The operative word there is ‘‘current practices.’’ That’s as if what

we were trying to do is measure some programmatic change, and

we certainly did not in this objective study.

Mr. WAXMAN. Excuse me. The heading of your testimony is, ‘‘Cleaning up sites is taking longer.’’ The reason we are holding this

hearing today—it’s not even on a final report—is so that the message could get out that cleaning up sites is taking longer. That

would make people think that Superfund is a failure. But, in fact,

you aid that conclusion which you cannot reach by the methodology

that’s flawed.

Mr. KARPMAN. Sir, when you measure forward in time, you are

only taking into account those sites forward. If I can give an example, think of a weight loss clinic. You have 100 people enter a

weight loss clinic. You want to see what happens to them. I would

submit that that weight loss clinic will then say, ‘‘Well, 30 people

finished, and they lost an average of 10 pounds. Case closed.’’ But

I think what we were tasked to do is follow those 100 people and

see, over a period of time, what happened to them.

Mr. WAXMAN. But your example has no backlog, does it? What

we are dealing with is a situation where we are penalizing the

progress based on going and dealing with the backlog.

Mr. KARPMAN. You say my example has a backlog—it does not

have a backlog.

Mr. WAXMAN. Yes. You are giving me an example, and I’m trying

to figure out the relevance of it.

Mr. KARPMAN. Well, the problem with the prospective study, the

example you are showing, you are only using a portion of the cases

to compute something in a given year.

Mr. WAXMAN. Yes, but in my hypothetical example I’m telling

you in the future how everything happens, the same amount of

progress in cleaning up each site listed, and how, if you follow that

kind of hypothetical example, which we would all say was steady

progress, using your methodology it would look like it’s a sloweddown, delayed progress.

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Mr. KARPMAN. I would concede a straight line, but I think what

you need to concede is that, in a given year, you don’t have all the

information.

Mr. WAXMAN. No, but in my hypothetical example you do. And

given my hypothetical example where you do have the information,

using your methodology we end up with a chart like the one at the

far left, which says the average time to clean up would mean it’s

taking longer.

That’s the point I’m trying to make. By using your methodology—which GAO told us they wouldn’t use because it’s not appropriate, in other circumstances—you used here, I think your conclusion then becomes unhelpful, inappropriate, and not consistent

with what we need to evaluate what reforms have taken place in

the way Superfund cleanup is conducted, what changes we ought

to make.

Do you have recommendations for us to help, or do you sort of

say you don’t know whether the reforms are working, which means

we don’t know whether we ought to do something to change the

plan.

Mr. GUERRERO. One of the problems, Mr. Waxman, with this example and the Superfund data that we analyzed from EPA is that,

while in this particular case you may have all the outcomes, in

Superfund you don’t. There is an awful lot still in process. To use

a date of listing cohort, as opposed to a date of decision cohort,

would effectively give you an understated average time to complete

those cases, because the mean or the average will only rise over

time, as additional cases out of the backlog are finished.

So, in other words, EPA’s criticism of our report offered a methodology that was more seriously flawed.

Mr. WAXMAN. Well, I think that you can raise flaws with both

methodologies. The problem with your methodology is, you reach a

conclusion that cleaning up sites is taking longer, and I think that

conclusion cannot be reached in a legitimate way, using the methodology that you have offered to us. Your methodology has to distort the progress that is made.

Mr. Chairman, you have been very indulgent in the time that is

allotted to me. Perhaps, when other Members have completed, we

can go back to this, but this is the complaint I have with the GAO

report. It isn’t a final report. You ought to think this over. You

ought to talk to the other people at the GAO who rejected this kind

of methodology because they thought it was inappropriate, because

they thought it would distort the conclusions.

I think what we have is a report that is fairly useless for policymakers as a guide as to what actions we ought to take for the future.

Mr. CZERWINSKI. Mr. Waxman, may I?

Mr. WAXMAN. It’s up to the Chair.

Mr. MCINTOSH. Go ahead and make your comment.

Mr. CZERWINSKI. You raise some very interesting concerns about

the methodology, and they are concerns that we have had. We did

not rely solely on one methodology. We looked at not only the cohort analysis going backward but also forward, and found that it

verified the results. We also tried to make adjustments for the

backlog, found that it verified the results. We went into the difVerDate 11-MAY-2000 13:56 Jun 06, 2002 Jkt 078862 PO 00000 Frm 00156 Fmt 6633 Sfmt 6602 E:\HEARINGS\41517 pfrm12 PsN: 41517
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ferent phases of the cleanup process, and, again, those were

stretching out as time went.

So your points are very well taken and they are ones that very

much concerned us, but they also did not change the bottom line

of where we came out.

Mr. WAXMAN. The only comment I would make, and maybe we

can get into it later, is, EPA used an analysis showing that their

progress time was going down, by using a methodology of moving

forward and based on the time of the listing. Even though you acknowledge in your testimony and your report the backlog and the

complications that are there, you lead to a conclusion which is solely based on this methodology, which I think is flawed, that says

that cleaning up the sites is taking longer.

Mr. GUERRERO. If I could just clarify one point there, that the

title—and we were very careful with this exactly for that reason— to say that the statement is entitled, ‘‘The times to assess and

clean up hazardous wastesites exceed program goals.’’ We make no

projection of timeframes in the future, and one of the approaches

that we used, and it was not the sole approach we used, talks

about times that it has taken in the past.

Mr. MCINTOSH. Let me move on to the next. Before I lead to Mr.

Snowbarger, let me make two points on this that I think are important. One, Mr. Waxman’s chart there and his preferred methodology—and I don’t know whether that was meant to be a hypothetical example, Henry.

Mr. WAXMAN. That’s a hypothetical example where everything is

being done consistently, the same amount of time to clean it up.

Using one methodology, you would say it’s equal; using another

methodology, the exact same situation, would show there’s a gap

because you are looking backward.

Mr. MCINTOSH. And my point is that 11 years in the hypothetical—and we could find out what the real data is, in and of

itself, unacceptable. Whether it was back in the Reagan or Bush

or Clinton administrations, we need to do better in terms of reducing that time, as an overall goal.

The second point—and I want to check to confirm this—but it’s

my understanding that your methodology that you used in the report is the same one that EPA uses in its end-of-year, fiscal year,

trends analysis to justify its budgets when they come up here to

Congress. Is that correct?

Mr. GUERRERO. That’s correct. It’s the same approach that EPA

has used. It’s also an approach that the CBO has relied on to estimate timeframes for cleanups, and they, in fact, came out with

higher estimates than we did.

Mr. MCINTOSH. So since the inception of the program it has been

used by the agency and CBO to measure progress and determination of what budgets would be necessary to continue the program.

Mr. GUERRERO. That’s correct.

Mr. MCINTOSH. Mr. Laws, do you agree with that?

Mr. LAWS. I don’t know.

Mr. MCINTOSH. OK. If you want to put anything in the record

later on that, let me know.

Let me now yield the rest of this 10-minute segment to Mr.

Snowbarger, if he has questions.

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Mr. SNOWBARGER. Yes, thank you, Mr. Chairman.

My line of questioning is a little simpler. Simpler minds require

simpler questions, so I hope you will bear with me and walk me

through this, not having a great deal of background either in the

Superfund or as my colleague, Mr. Sununu, with an engineering

background.

This is for the GAO and whoever needs to respond. You have described the long time that it takes in evaluating sites and deciding

whether to place them in the Superfund program, so let me try to

see if I can understand the consequences of that slow pace. Now,

how many sites could be added to the program in the future?

What’s your estimate of that?

Mr. GUERRERO. Our estimate of that is from approximately 1,400

to 2,300 sites.

Mr. SNOWBARGER. So there are a potential of 1,400 to 2,300. How

many have we been adding, let’s say per year, over the last few

years?

Mr. GUERRERO. The average over the last 5 years has been 16

per year.

Mr. SNOWBARGER. OK. So it’s clear that we’ve got a problem getting these sites into the program to begin with. It sounds like we

have an awful lot of sites and very few of them getting on the list;

is that correct?

Mr. GUERRERO. That’s correct.

Mr. SNOWBARGER. What’s the consequence of delaying in getting

onto the list?

Mr. GUERRERO. The consequence, if they are not addressed under

other authorities at the State level or by other Federal authorities,

is that they will sit there, and the issues will remain unresolved

regarding the issues of public health and safety.

Mr. SNOWBARGER. OK. Well, let’s shift over. Can you talk to me

about the pace of cleanup? We’ve got a delay at the front end. It

sounds like we also have a delay now, once it’s placed on the list,

after it has been added to the Superfund. How long does it take

to clean up?

Mr. GUERRERO. In 1996, it took an average of 10.6 years.

Mr. SNOWBARGER. From your study, why does it take so long? I

guess that’s the bottom line question.

Mr. GUERRERO. There are numerous reasons given for why it

takes that long. EPA tells us that it has to do with a number of

factors: complexity of sites, available resources, negotiations with

responsible parties over who is liable for contamination. All of

those are possible explanations. I have to say that we did not look

into, specifically, whether any of those had greater validity than

others.

What we did observe is, there is a shift of resources within the

Superfund budget, placing greater emphasis on the tail end of the

process, that is, the cleanup itself. That has the effect of stretching

out the front end or the study phase of the process. That study

phase has been stretched out so long that it’s driving up these

averages.

So, in other words, to get something out of the pipeline and put

a lot of effort into that, the price we’re paying—we’re robbing Peter

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to pay Paul. We’re adding to the front end of the process and

stretching the whole process out.

Mr. SNOWBARGER. Let me follow up, then, with Mr. Laws, if I

could.

EPA’s 1996, end of the fiscal year budget indicated that 70 percent of EPA Superfund spending was going to cleanup, yet your

budget shows only 47 percent of the trust fund actually goes to

Superfund cleanups. I don’t understand the difference between the

70 percent number and the 47 percent number.

Mr. LAWS. We don’t subscribe to the 47 percent number, Congressman. We say that that amount of our budget goes to cleanup.

It includes site assessment, our long-term actions, our early actions, our laboratory analysis, and what it costs to pay for our site

managers.

Mr. SNOWBARGER. What you just listed is all within the 47 percent?

Mr. LAWS. It is within the 70 percent. That also includes some

of our enforcement activities. We have a history of our enforcement

program: for every $1 spent we bring in $7 from responsible parties. It also includes some of the work that is done by other Federal

agencies, including the Justice Department, the Department of

Health and Human Services, NOAA, and things of that nature.

Mr. SNOWBARGER. So when the agency is talking about how

much of their budget is going into cleanup, we’re including an

awful lot of other activities other than those directly related to

cleanup.

Mr. LAWS. No, everything is directly related to cleanup. I mean,

you have to run a cleanup program, and those are the components

that are necessary to run that cleanup program. If you take any

one of them away, you won’t be accomplishing the same level of

cleanup.

Mr. SNOWBARGER. Well, are we, though, talking about virtually—

well, the FTEs that are at your headquarters here in Washington,

are they involved directly in cleanup, in your interpretation?

Mr. LAWS. They most certainly are, sir. Yes, they are.

Mr. SNOWBARGER. Well, is there anything the EPA does that’s

not involved in cleanup?

Mr. LAWS. There’s our management and support of the program;

our contracting, part of that is not included.

Mr. SNOWBARGER. And that’s not included in the 70 percent that

you’re talking about?

Mr. LAWS. That’s correct.

Mr. SNOWBARGER. Well, fewer sites have been added to the NPL

over the last 5 years, and you’ve cut your site assessment budget

during that time period. It seems to me we would have expected

that money to be marked for cleanup, and yet the cleanup budget

doesn’t seem to be increased over that period of time. Where did

the money go?

Mr. LAWS. The money that is not going into site assessment is

going into cleanup. We are doing things differently this year. If I

could take a step back, when you talk about getting sites listed, the

atmosphere for getting sites placed on the NPL has changed dramatically. There are a number of factors that play into that. Probably the main one is the fact that when this program was started,

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back in 1980, nobody knew how to do Superfund cleanup sites. It

was entirely new. So the Federal Government assumed that responsibility.

Since then, the States have taken up a tremendous amount of

the weight of doing that. What has happened, then, is that we have

entered into partnerships with the States. So when we discover a

site, it’s not automatically determined that that site is going to be

placed on the National Priorities List. States are given the opportunity to work to clean them up themselves.

We give opportunities to private parties to come in and clean

sites, to work it out with the State. Whether that is going to happen or not, we don’t know up front. We’ve had situations where the

State thought they would be able to handle a site, where they did

not. So you’ve got this time where the State was trying to work out

the site, it didn’t work, so then we have to restart the listing process.

We are doing a lot more early removals. The General Accounting

Office actually did a report on us last year that was very positive

about our removal program which gets to sites before we have to

go through the lengthy listing process. So the funds that are coming out of site assessment are going to support these new activities.

If I could go a little farther, a lot of the things that have been

leveled as criticisms are legitimate things that we should be looking at, but you are not getting the accurate picture of what’s going

on. We have an office that is dedicated solely to advancing innovative technology in hazardous waste cleanups, and it’s a very successful office. It’s the only one of its kind in the Environmental Protection Agency.

We support innovative cleanups. We have recently, in our New

England division—at a New Hampshire site, I might add—entered

into our first agreement where the Federal Government is going to

share the risk of a failure of an innovative technology, something

that the vendors of innovative technologies have been supporting

for years.

So what we are doing at the agency is trying to address a lot of

the problems that have been raised over the years, and we are

making progress toward it. Like I said before, no one here is saying

that we have fixed this problem, but I don’t think that it’s fair, in

the debate that we’re going to be entering into under Superfund,

to be trying to portray this program in the light that it was 10 and

15 years ago, because that is not the way this program is operating

today.

If you are basing decisions on a report that admittedly doesn’t

take into account the administrative reforms that we have put in

place the last 3 or 4 years, I really question how that is going to

aid in our debate.

Mr. SNOWBARGER. I’m kind of confused here about the budget.

It’s my understanding that these are EPA figures. For 1995, it

shows 47 percent direct site cleanup; 1996, it shows 71 percent,

and yet there has not been more money going to cleanup. I don’t

understand. Are we just renaming these things? We decide we need

to show a better face on cleanup, so we add other functions in?

Mr. LAWS. I’m not sure what chart you are referring to.

Mr. SNOWBARGER. Well, the two pie charts there.

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Mr. LAWS. Like I said, I don’t know where those charts came

from.

Mr. SNOWBARGER. I believe the figures came from your budget.

Mr. LAWS. I don’t know that as a fact, sir. I mean, if you would

like to see what our budget projections were for fiscal 1995 and fiscal 1996, we can certainly provide that. If, in fact, that is correct,

we will provide an explanation.

Mr. SNOWBARGER. Yes, I would like to know. Again, if we’re just

reshuffling resources and calling them cleanup now, I think that’s

important for us to find out.

Thank you, Mr. Chairman.

Mr. SUNUNU [presiding]. Thank you very much, Mr. Snowbarger.

Mr. Kucinich.

Mr. SANDERS. Let me speak for a few minutes and then give it

over to you, Dennis.

Mr. KUCINICH. Sure.

Mr. SANDERS. Let me just begin, Mr. Chairman, by expressing a

concern that I think we have a problem, and I’m not sure that we

are addressing it effectively today. My concern is that this is an

enormously complicated issue.

I remember, when I was a mayor and I came into office, we had

a guy who used to give us reports by telling us what a great job

he was doing on everything. Fortunately, he never did anything,

but he looked really good on paper. Then we had another guy who

was knocking his brains out doing a good job, trying to do as much

as he could, couldn’t quite put it on paper, and it didn’t look quite

as good.

I mean, one of the basic problems that you have is if you have

somebody who works for the administration and wants to look good

to us, who is not an expert on every detail, they could deal with

minor problems and say, ‘‘Look. We knocked this one off. We

knocked that one off. We’ve got 83 projects we ended in 3 weeks.

We’re great.’’

Meanwhile, some of the major environmental crises facing this

country are not dealt with. Children are getting sick, and somebody

up here says, ‘‘Gee,’’ you know. So it is a tough problem, and I don’t

know that we’re getting to the root of it today.

Having said that, I happen to believe that we do need to take a

very hard look at the Superfund. I happen to believe that there are

problems there. I happen to believe that we could make it more

cost-effective, could speed up the process. But I really would hope

that we don’t make it into a partisan issue and just the goal of it

is to say, ‘‘Hey, these guys are doing a terrible job. Cut their funding,’’ or something like that. If we do that, we’ve done a real disservice to the public.

I have some questions, but if Mr. Kucinich wanted to jump in

now. Do you want to?

Mr. KUCINICH. Yes.

Mr. SANDERS. I will take it back after Dennis.

Mr. SUNUNU. Please, go right ahead.

Mr. KUCINICH. Thank you very much, Mr. Chairman and members of the committee. It’s a pleasure to join all of you on this committee.

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My questions dovetail some of the questions that Mr.

Snowbarger raised relating to performance. I would like to direct

the questions, with the Chair’s permission, to Mr. Laws. And keep

in mind that I am new here, so you may think these questions

aren’t relevant, but it appears to me they might be.

Mr. Laws, you have had this program cut, as has been testified

by the GAO, and you have talked about the implications somewhat.

I’m just wondering, should this Congress or the administration be

cutting the EPA’s budget when there is a backlog of sites and the

program has been overwhelmed?

Mr. LAWS. No, I don’t think so. I think that the President’s budget for fiscal 1998 reflects the fact that we do have a commitment

to the American people. Because of some of the delays that we have

admitted to, there are communities out there that we have been

promising to get their sites cleaned up, and I think it’s now time

that we follow through on that promise. That’s what the President’s budget reflects, an increase for dealing with Superfund sites

and not a decrease.

Mr. KUCINICH. Is it your opinion, Mr. Laws, that the budget, as

has been submitted, is going to be adequate to expedite the process

of the cleanup?

Mr. LAWS. Yes, sir. The budget includes a proposed $650-million

increase for Superfund. That is the first of a 2-year request in that

amount, which will allow us, by the year 2000, to clean up an additional 250 sites.

Mr. KUCINICH. Do you have any recommendations other than the

obvious funding one that would help the EPA expedite the cleanup

and fix the problem of the delay?

Mr. LAWS. I assume that we will be engaging in a very healthy

debate with the Congress in the months to come over Superfund

reauthorization. We have had, over the last two Congresses, a very

spirited back-and-forth on what is necessary.

We are committed to reforming this law in a way that makes

these cleanups go faster, that makes them fairer to the parties involved, but at the same time ensures that the people who have to

live near these sites are fully protected in their health and in their

environment. So I think that is where the debate will center, as to

exactly what is going to be necessary to ensure that we can accomplish all of those goals.

Mr. KUCINICH. Thank you, Mr. Laws.

Mr. Chairman and members of the committee, it seems to me

that this committee might benefit, in terms of analyzing the performance here by the EPA, if we had the benefit of the manning

tables, if you will, of personnel from the EPA, to see how reductions in the budget over the past couple years may have resulted

in certain cutbacks that have affected directly the administrative

functions of EPA that relate to these programs. Because anytime

you cut money, you’re cutting people. You cut people who do certain jobs, and the jobs aren’t done, and then the responsibility

shifts.

I would like to, with the permission of the Chair, just make that

request, if we could get that information. So then, if the funding

levels come back, we get some idea of how personnel might be

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changed so that we would see a corresponding improvement in the

function.

Is it possible we could get that?

Mr. SUNUNU. To the extent that the agency would like to submit

that funding and personnel data, in addition to the other information that has been requested by the committee, I think it would be

appropriate to include it for the record.

Mr. KUCINICH. Thank you, Mr. Chairman.

Mr. SUNUNU. Thank you very much, Mr. Kucinich.

The Chair recognizes Mr. Barr.

Mr. BARR. Thank you.

Mr. Laws, during the last questioning, maybe to assist you here,

since you said you didn’t know where the figures came from on

those pie charts, they do come from EPA. They are directly from

your agency, and we can provide those to you, if you would like,

in a small version. Would that help?

Mr. LAWS. I’m sorry, Mr. Barr.

Mr. BARR. I’m questioning, Mr. Laws. I’m sorry. Let me repeat

it then. You expressed in previous questioning that you didn’t know

where the information came from on the charts, to which I think

the chairman of the subcommittee referred. Is that correct?

Mr. LAWS. Yes.

Mr. BARR. OK. Trying to help you out. The information came

from EPA, and that is what the bottom of the charts say. Would

it help you, in responding to questions to try and determine why

we have gone all of a sudden from 47 percent to clean up to 71 percent, to have a smaller version of those charts which indicate also

that they are EPA’s figures? Or would that not help you in responding to questions?

Mr. LAWS. Well, I mean, what you are talking about is for the

budget submission; what we are talking about is how the program

operates. What the program does is, it looks at what are the dollars

necessary for it to respond directly to sites, and that includes more

than the actual dollars that are spent to clean up a site.

Mr. BARR. You’re right. I mean, they can include whatever you

want to include in them. That’s a given. Whatever people want to

include in them, they include in them. All I’m asking is, would it

help you to have those charts, because you expressed that you

didn’t know where the information came from. It does come from

EPA.

Mr. LAWS. OK.

Mr. BARR. Why don’t you provide the witness those. That may

help.

Just so I have clear in my mind what your previous testimony

was, also, Mr. Laws, I think that this was in response to questioning by the subcommittee chairman, that you don’t know what

methodology EPA uses in its budget submissions to the Appropriations Committee.

Mr. LAWS. No, I think the question was that the methodology

that EPA uses was identical to the methodology that GAO used,

and I’m not in a position to say whether that is, in fact, correct.

Mr. BARR. OK. Do you know what methodology EPA does use in

submitting and calculating its budget submission to the Appropriations Committee of the Congress?

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Mr. LAWS. No, sir, I don’t. We can provide that for you, but I

can’t tell you.

Mr. BARR. Well, I don’t need you to provide it for me. I’m just

asking if you know what methodology they use?

Mr. LAWS. No, sir.

Mr. BARR. OK. Also, Mr. Laws, I was intrigued by what I think

is also your testimony that the Superfund program is now a fundamentally different program today. And I certainly recognize

there is a time when we can make general statements, and general

statements are appropriate, but I think we’re at the point now

where we need to be a little bit more specific.

On what basis can you make that statement, when EPA has stated, as recently as just a couple of months ago in a submission to

the Congress, ‘‘Duration data would not be conclusive and results

not complete for another 8 to 10 years.’’ In other words, if the data

isn’t even near being completed, how can you make a fairly general

but very specific statement that—or very clear statement—that the

Superfund program is fundamentally different today?

Mr. LAWS. Well, very simply because a lot of the problems that

have been identified with the program simply aren’t occurring.

Others aren’t occurring as often as they were in the past.

The administrator likes to tell the story that when she first came

into the agency, back in 1993, not a week went by that she didn’t

get a call from a Member of Congress or a Governor or a mayor,

complaining about something happening at a Superfund site. And

she said that doesn’t occur anymore. We were always getting complaints from small parties who had been sued by larger parties.

Mr. BARR. What do you read into that? Do you read into that

that the programs are working?

Mr. LAWS. I think what I read into that.

Mr. BARR. Hold on, please. I’m just asking you what you read

into that. To me that doesn’t mean anything, but maybe I’m missing something. What do you read into that, that Members of Congress are frustrated with the response, so they don’t bother calling

back, or that they are much more satisfied now, or that the programs have been concluded? I mean, what does that mean?

Mr. LAWS. I think what it means is that the issues that were

being complained about we have taken very strong efforts in trying

to address, and that they are, frankly, not occurring in the way

that they were in the past.

Mr. BARR. Well, if that’s the basis on which EPA reaches conclusions.

Mr. LAWS. Well.

Mr. BARR. Hold on.

Mr. LAWS. There are others.

Mr. BARR. Sir, please hold on. Hold on, please. OK. I’ll give you

time, and I’m giving you time, but don’t interrupt me, please.

That is a very strange basis, it seems to me, on which to reach

very broad conclusions to the American people and to the Congress

about how EPA is faring and what problems have been resolved

and what problems remain. The fact that, gee, Members of Congress don’t call up and complain as much anymore, I mean, is there

really not something a little more substantial that you can tell us

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that has been used as the basis by EPA to make these general

statements about how well the programs are doing?

Mr. LAWS. As I was going to say, Mr. Barr, a lot of the problems

that have been identified in the program have been addressed. We

were constantly criticized that small parties were never intended

to be in the Superfund liability net, were being brought into the

case by larger parties who were trying to expand the liability net.

We have addressed that by providing zero-dollar settlements to

tiny parties and settling out de minimis parties; over 14,000 have

been done. That is a fact as to things that did not occur in the past

that are occurring today.

We have been accused that we have not been carefully looking

at high cost remedies and that there were cheaper ways to do that.

So we established a remedy review board which is going to review

every remedy that falls within a certain parameter of criteria. The

Board first went into operation last year and has already resulted

in between $15 million and $30 million in savings.

We have established a process where we’re going to relook at old

remedies to make sure that technology innovations and changes in

technology and science that might have impacted our decision are

relooked at. And if, in fact, a better decision is in place, it should

be in place. In region one alone, we have had $56 million in savings

because of changed remedies as a result of that initiative.

I can provide, and I will, Mr. Barr, a list of the specifics as to

why we think this program has changed and how we are doing

things differently. One of the major criticisms of this program is

that we cleaned everything up to residential use.

Now, that is not how these sites are cleaned up, but what we

have done is, we have made it a requirement that before we decide

how a site is going to be cleaned up, we are going to determine

what the reasonably anticipated future land use is. That is going

to eliminate scenarios where sites which have been industrial for

the last 100 years and will be industrial in perpetuity are even

analyzed for a residential type cleanup.

So there are very concrete examples as to why we believe this

program has changed.

Mr. BARR. OK. I would appreciate it if you would furnish that.

If you would also, pursuant to—I think you indicated to the chairman that you would provide information on exactly what methodology EPA does use in its budget submission.

Mr. LAWS. Certainly.

[The information referred to follows:]

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Mr. BARR. That would help us, since there seems to be some disputes about methodologies here.

Let me ask just one other question, Mr. Laws. I was looking at,

again, some of these charts and graphs that have to do with the

average time to complete Superfund cleanup projects. Is there any

data that you all have that indicates, with some sort of tangible figures, how much it costs local communities in lost investment business coming into those communities during the course of whether

it’s 11 years or 20 years of a site being maintained on NPL?

In other words, you have small communities all over America,

and once a site is on the NPL it has a disastrous effect on new

business coming into that community. Do you all have any studies

or information on—and that sort of is a cost of having a site listed

on the NPL, and I think a very real one. Do you have any data

on how much it does cost the communities or the local governments?

Mr. LAWS. I’m not sure if the agency has any data that might

reflect that. We can check and see if any of the local government

organizations have done some sort of studies. My guess is, however,

that it’s probably more anecdotal as to what communities believe

the economic impact of a Superfund site has been, just as

anecdotally there is evidence that some of them actually benefit because of the construction activity that comes into the community in

getting the site ready for economic redevelopment.

I know there is not a study that we have done specifically on

that, but there might be something that other organizations have

done that we might be able to get.

Mr. BARR. OK. If you are aware of any or could locate any, with

reasonable efforts, I would appreciate it. I think it’s relevant and

important.

There are some other questions I have, but I see that the time

is just about up, so I will defer for right now. Thank you, Mr.

Chairman.

Mr. SUNUNU. Thank you, Mr. Barr.

We will reserve time at the conclusion of Mr. Sanders’ questioning, if you would like to add some additional comments.

Mr. Sanders.

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

Mr. Chairman, if I may, as I understand it, Mr. Laws, today is

your last day, and your co-workers are giving you a going away

party.

Mr. GUERRERO. I thought this was his going away party. [Laughter.]

Mr. LAWS. I would assume they are having a little more fun right

now than I am.

Mr. SANDERS. I would respectfully suggest, Mr. Chairman, if

there are other questions that any Member might have of Mr.

Laws, may we present them now, so that he can perhaps enjoy his

last day in a little better way.

Mr. MCINTOSH. Mr. Barr, would you like to conclude?

Mr. BARR. Just one quick question, then, for Mr. Laws specifically.

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I think, Mr. Laws—and I think this was in response to a question previously by Mr. Sununu—that EPA does not have any evidence that shows that the average cleanup time is going down.

Mr. LAWS. No, I didn’t say that. I’m not sure that that evidence

has been put in a report type form. The data that we have gone

through does indicate that, and we will provide that to the subcommittee.

Mr. BARR. OK. That will be provided?

Mr. LAWS. Yes, sir.

Mr. BARR. OK. Thank you.

Thank you, Mr. Chairman.

Mr. SUNUNU. If I may just conclude the questioning by yielding

myself a few moments, Mr. Laws. I understand that, in a letter

that you put together for Congressmen Oxley and Boehlert in May

of last year, you responded for the EPA with regard to the Superfund reform proposal by stating that there wasn’t evidence that

would support your claim—meaning that of Congressman Oxley—

that the existing liability scheme delays the time for cleanup.

Contradicting that, however, was GAO testimony that stated,

‘‘EPA officials also said that the time to find the parties responsible

for contaminating site and reach cleanup settlements can increase

the cleanup times.’’ These two statements, both by EPA parties or

officials, obviously contradict one another.

My question to you would be, in the light of the GAO findings,

how can you suggest that the time to track down tens and sometimes hundreds of potentially responsible parties wouldn’t delay

the cleanup time involved?

Mr. LAWS. Because the analysis, the site investigation, the study

of what is going to be necessary to clean up that particular site

proceeds while the enforcement side of the House is looking to try

and identify who the responsible parties are.

I think, if you look at the time it takes, on another GAO report,

for the private sector to clean up a site and the Federal Government to clean up a site, the difference is something like 6 months

difference. So I don’t think that the PRP search has a major impact

on the length of time.

Mr. SUNUNU. Thank you very much. At this time, I would like

to return the Chair to Mr. McIntosh, who has one or two final

questions.

Mr. MCINTOSH [presiding]. Thank you, Mr. Sununu. Did you

have any further questions before I finish up?

Mr. SUNUNU. Not at this time.

Mr. MCINTOSH. I wanted to check in with you—and I appreciate

the panel’s willingness to participate in all of this. I have a question for the General Accounting Office.

Mr. Sanders is pointing out that you are trying to leave for an

engagement.

Mr. LAWS. Yes, sir.

Mr. MCINTOSH. I do have one more for the GAO, but I will put

that on hold for a second and ask Mr. Laws a question.

In your testimony, you had indicated that EPA had established

a ‘‘worst problems first’’ priority system. The National Risk-Based

Priority Panel has evaluated and tried to rank cleanup actions acVerDate 11-MAY-2000 13:56 Jun 06, 2002 Jkt 078862 PO 00000 Frm 00173 Fmt 6633 Sfmt 6602 E:\HEARINGS\41517 pfrm12 PsN: 41517
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cording to five different criteria: risks to humans and the environment; instability in characteristics of the contaminants; and economic, social and program management considerations.

Now, based on these criteria, the panel had ranked one of the

Superfund sites, the Havertown PCP site, the eighth worst cleanup

project in the Nation. The site was placed on the NPL list in 1982.

According to the documentation supporting the agency’s decision to

cap the site, this site is indeed one of the ones that is very stable.

EPA has stated that the contaminants at this site, such as arsenic, dioxin, PCPs, and PAHs, all bind with the soil and are not

volatile or highly mobile. The most highly contaminated area of the

site is surrounded by a berm that prevents any further migration

of soil.

The agency apparently has also stated that these soils onsite

present minimal threats to the community and, if capped, would

present no threat to the community or anyone using the cap. Previously, EPA actions have stabilized the site so that there’s no significant threat to local residents.

Now, the relative priority of this response appears to have been

established on a first-come, first-served basis rather than on risk.

Does this site, in fact, present the type of risk that would make

this the eighth worst cleanup project in the country, or was it listed

that way because it was one that they were about to finish cleanup?

Mr. LAWS. No, actually the national risk priority system—to get

to the second point first—is actually working kind of perverse effect

on those sites that are ready to complete cleanup. I mean, the sites

that have had most of the work done, that are ready for maybe a

final operable unit to be done—where we have stabilized the risk,

we have protected the communities—are constantly bumped to the

bottom of the list by newer sites that are coming along where the

sites have not been stabilized to that point. So actually the risk

system works the other way.

My understanding with the Havertown site, though, is that the

reason it ranked so high was because of ground water problems

and not because of the soil problem.

Mr. MCINTOSH. That is what was confusing to me, because apparently the type of contaminants there all seem to be the type

that do bind with the soil, so you would have less of a significant

concern about the ground water problems than perhaps other sites

where you’ve got water soluble contaminants.

Mr. LAWS. I’m not familiar with that particular site, but I do

know that it was a ground water issue that was pushing the higher

ranking of it.

Mr. MCINTOSH. Do you know if that ground water problem that

they did detect presented a great amount of risk?

Mr. LAWS. I think it was threatening a drinking water source, is

my belief. I would have to check on that, but I did have a couple

of conversations with the Regional Administrator about that site,

and that’s my recollection.

Mr. MCINTOSH. OK. Mr. Laws, I do understand it’s your last day,

but perhaps the agency could give us some further answer.

Mr. LAWS. Actually, because it did refer also to the testimony of

one of the earlier witnesses, we can provide the committee with an

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analysis of what the problem was, our responsiveness summary,

which would have addressed the issue raised by the vendor who

had testified earlier, and we can provide all of that information

about that.

Mr. MCINTOSH. Yes, that would be helpful, and some analysis

about why it was placed at that risk level.

Mr. LAWS. Certainly.

Mr. MCINTOSH. Thank you very much, Mr. Laws. I appreciate

your coming. I don’t think there are any other questions for you.

We wish you well in your next life.

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

Mr. MCINTOSH. One final question for GAO. I understand that

you did not focus only on the trend lines for listing in construction

completions, but also looked at sites that had gone through various

stages of the listing process and the cleanup process. I wanted to

check, what stages in each process did you observe that the average processing times had lengthened?

Mr. GUERRERO. Yes. The answer to your question is, yes, we did

look at the stages. There were two areas that basically were driving the numbers. The first is, the period of time after all the initial

assessments are done for listing was increasing. So the time between that point and the listing was increasing.

Then, on the cleanup side of the picture, it was the time spent

selecting a remedy and studying what possible remedies to use was

driving the process.

Mr. MCINTOSH. So, in each case, it was the latter stages that

were doing it?

Mr. GUERRERO. In the first part, it was the very tail end; in the

second part, it was the very front end of the process.

Mr. MCINTOSH. Are both of those stages the stages at which

there are a large number of parties that are consulted and brought

into the process?

Mr. DONAGHY. Yes, there is some enforcement in the end stage

of the listing process, where an attempt is made to find parties responsible for the contamination. And then, early in the cleanup

process, there are negotiations. After listing, there are negotiations

carried on with the responsible parties to attempt to reach a settlement.

I think that the delay in getting the construction started at sites

after they are listed is a result of a delay in starting the cleanup

study, the process that leads to the selection of a cleanup remedy,

and also a stretch-out in the time that it has taken to conduct that

remedy selection.

Mr. MCINTOSH. Let me just close by saying thank you for GAO

coming and the work on your draft report. I look forward to seeing

the final report. I have a high degree of confidence on the methodologies that you have used in that report. I think they will serve

us well in this Congress as we move forward in looking at reauthorizing Superfund.

Mr. GUERRERO. Thank you, Mr. Chairman.

Mr. MCINTOSH. Mr. Sanders, did you have a closing comment?

Mr. SANDERS. I’m not quite sure that we had the adequate time.

I think more of the time was on your side. So I think we’re entitled

to at least 10 minutes.

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Mr. MCINTOSH. OK. I was not here. Mr. Sanders has some questions. Excuse me.

Proceed.

Mr. SANDERS. Thank you very much. Mr. Chairman, despite the

inauspicious beginning of this meeting, I certainly don’t want to be

terribly partisan, but I must raise an issue, and it’s a quote from

you, Mr. Chairman, which I want to bounce off the GAO.

We have a memorandum here from the chairman, Mr. McIntosh,

dated February 6, 1997, that states, ‘‘GAO estimates that EPA will

take, on average, at least 21 years to complete cleanups at nonFederal sites whose discovery was reported in 1995.’’ My question to Mr. Guerrero is, do you agree that it takes 21

years? Is it appropriate to use your analysis to project how long it

will take EPA to list and clean up sites that are reported in 1995?

Mr. GUERRERO. As I stated earlier, Mr. Sanders, our analysis

does not allow you to project forward what those timeframes will

be.

Mr. SANDERS. I don’t want to put you on the spot, but I read you

a quote from the chairman, and what I’m hearing from you, it’s not

a totally appropriate quote. You can nod your head if you don’t

want to offend anybody, but I’m understanding you to say that.

Mr. GUERRERO. The numbers are based on what it did take, the

average times that it took in 1996, and that number is the sum

total of those two timeframes.

Mr. SANDERS. So what you are saying, in essence, is that it is

not useful, that the quote of the chairman is not necessarily appropriate or accurate, and that it is not useful for examining the impacts of changes in EPA Superfund policies and procedures which

could affect the program’s future performance.

In other words, I guess the only point that I wanted to make is,

the chairman had a quote, and I think it was probably not an appropriate quote, based on the information that you provided.

Mr. CZERWINSKI. In all fairness, Mr. Sanders, though, I think

that’s probably from our lack of specificity in dealing with the

chairman. We have been refining our message as our work progressed, and, most likely, the misunderstanding was due to our

poor communication.

Mr. SANDERS. OK. And maybe that’s one of the problems with

having a hearing with a work in progress. Possibly.

Mr. GUERRERO. I would like to clarify, though, GAO’s policy is to

testify on work that is in progress, provided that we have sufficiently completed that work that we can usefully contribute to the

discussions.

Mr. SANDERS. Let me just continue and suggest that, as I understand it, your methodology doesn’t even look at the average time

for sites reported in a certain year. Instead, it looks at the average

for sites completed in a certain year. Is that correct?

Mr. GUERRERO. That’s correct. That’s what Mr. Waxman was

talking about earlier.

Mr. SANDERS. OK. My conclusion would be that, hopefully, perhaps the chairman did not fully understand the situation when he

made his quote. The same memorandum refers to the title of your

draft report, ‘‘It now takes more time to address and clean up hazardous wastesites,’’ that’s the title.

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This title tells me that you analyzed how long it takes to list and

clean up sites under the new reforms, and it is a clear indictment

of the reforms. Yet you testified that your analysis should not be

used to judge the reforms or to project the average cleanup times

for sites discovered after the reforms were adopted.

Is this going to be the title of your final report?

Mr. GUERRERO. No, it will not.

Mr. SANDERS. So the title that you now have for your draft report, ‘‘It now takes more time to assess and clean up hazardous

wastesites’’—interesting title—is, in fact, not going to be the title

for your final report; that’s correct?

Mr. GUERRERO. That’s correct.

Mr. SANDERS. I think that’s important to state for the record.

Can you tell us what your new title will be?

Mr. GUERRERO. We haven’t selected it. However, what I would

want to say is that the approach used shows that it has taken the

amount of time we indicated in these charts, in each of those years.

The choice of the title for our draft report, which was sent to the

agency for comment, as is a typical practice of ours, led us to believe that that could be misunderstood, so we are going to change

the title of the report.

Mr. SANDERS. We appreciate it. We happen to think that the

whole methodology, as you know, is misleading, not only the title,

so we appreciate your at least changing the title.

Mr. Chairman, as it was just established, in our opinion, in my

view, the GAO’s analysis should not be used to judge the current

program or to project how long cleanups will take in the coming

years. And it cannot show the impossible, that it took an average

of 21 years to clean up sites, because Superfund hasn’t even been

around that long.

Therefore, I hope that the final report clearly explains the inherent bias in the methodology and clearly spells out the limitations

of the data. I would not want the chairman, or any member of the

committee, or any reader, to be misled on this subject again.

Mr. Chairman, I would like to explore the reasons for delay for

a little while.

You testified that a major factor was, the Superfund program

started with a backlog of sites awaiting evaluation. That’s a quote.

Correct? Now, let’s say, hypothetically, there is a huge backlog of

sites because previous administrations had neglected the program,

and, again, hypothetically, a new administration aggressively and

successfully attacks this backlog by finally finishing up those long,

drawn out listings and cleanups.

Would the results of your analysis show that the cleanups completed by this new administration were actually taking longer than

cleanups completed by previous neglectful administrations?

Mr. GUERRERO. The average, based on our analysis, would rise

because it takes into account the backlog. However, that is not the

only approach that we used in our analysis.

Mr. SANDERS. One more time, I think the point that we’re trying

to make is that the information provided does not necessarily reflect the reality of what is taking place and the efforts of the Clinton administration to improve upon the situation.

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Mr. Chairman, let me just ask a few more questions, and thank

you for your indulgence here.

I would ask GAO what recommendations they are making today

for fixing the problems related to delay.

Mr. GUERRERO. We are not making any formal recommendations

in our testimony, nor do we anticipate making recommendations in

our final report. I would make several observations, however. And

I would like to speak to the methodology, because I think it’s important to note that the methodology does show some very, very

important things.

Among those is the fact that the timeframes spent within specific

parts of the Superfund cleanup process are changing. Certain parts

are getting longer; other portions may be remaining the same. In

effect, as I said earlier, this is a result of a number of decisions to

emphasize the tail end of the process or the cleanups. It is robbing

Peter to pay Paul and, in effect, will be shown in even higher average times in the future.

We feel very strongly, and we have made recommendations, that

because of the size of the backlog in this program, which it began

with, because of the large number of sites yet to be listed, and because of the large number of sites in the pipeline, it is imperative

that we use a risk-based approach to manage this process and ensure that the worst sites are getting addressed first.

That’s something we have recommended in the past and we are

recommending today before Chairman Horn’s subcommittee in our

high risk reports. We feel even stronger about it based on the analysis we’ve done here. This is a program where results are important, and we have not been convinced in the past that the agency

has used that type of approach.

Mr. SANDERS. My time has expired. I would just, with the chairman’s indulgence, take a brief moment to ask you this: Would you

recommend the reforms implemented by the EPA in the last few

years?

Mr. GUERRERO. The reforms that the agency has put in place all

have potential to achieve what the agency is setting out to do,

which is reducing timeframes and reducing costs.

Mr. SANDERS. You see these in a positive light.

Mr. GUERRERO. We see them in a positive light. I think where

the debate has been this morning is, how can you measure that,

and how can you show those kinds of examples.

Mr. SANDERS. I appreciate that. Honest people can disagree. It’s

a complicated issue. But what I’m hearing you say is that the

changes and the reforms implemented in recent years are positive.

That is what you’re saying; is that correct?

Mr. GUERRERO. They are headed in the right direction. Whether

they are having the impact is the question we have been talking

about.

Mr. CZERWINSKI. Mr. Sanders, I think the key word is ‘‘implemented.’’ We are not sure how extensively they are being implemented, and we are undergoing studies at the request of this committee, the authorizing and appropriations committees to see the

exact extent of EPA’s implementation.

Mr. SANDERS. I do appreciate it. What you are saying—again, I

don’t want to put words in your mouth—but you are saying you

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like the reforms; you see them moving in the right direction; you

are concerned about the implementation.

Mr. CZERWINSKI. We see the concepts as being very positive; the

results have yet to be proven.

Mr. SANDERS. OK. My last question, Mr. Chairman, is a very

simple one for the members up there. In order to better implement

those processes, would you recommend that Congress appropriate

more funds?

Mr. GUERRERO. Again, I would say that, going back to the earlier

discussions, you can always put more funds into this program, and

you will probably get more output. The question is, are you getting

the right kind of output? And whatever that funding level is, we

would continue to strongly urge that the agency use a risk-based

approach to ensure it is addressing the worst sites.

Mr. SANDERS. My time has expired. I thank you very much, Mr.

Chairman.

Mr. MCINTOSH. Thank you very much, Mr. Sanders.

Let me turn now to Representative Barr who has a couple questions for this panel.

Mr. BARR. Thank you, Mr. Chairman. Is it a fair assessment, Mr.

Guerrero, of GAO’s role, not just in your testimony here today but

in general, that GAO uses commonly accepted, defensible,

verifiable, legitimate means of computing data as objectively as

possible, and then makes the results of that analysis available to

Members of Congress and others in the executive branch, and that

it’s not your job to draw, necessarily, conclusions from it, with regard to how it can be used in determining policies?

Mr. GUERRERO. That’s right. We will, on occasion make recommendations, when we believe the evidence is compelling. In this

particular case, we are simply trying to present data that suggests

a troubling picture.

Mr. BARR. Would it be fair to say that, from time to time, Members of Congress on both sides of the aisle and members of the executive branch disagree with what you have done, and may reach

different conclusions based on the evidence?

Mr. GUERRERO. Absolutely.

Mr. BARR. Without beating a horse here, again, about methodologies, is it a fair statement, based on your objective analysis, as reflected in your testimony today, that the average completion time

for projects has increased substantially over the last several years?

Mr. GUERRERO. Yes.

Mr. BARR. Is there any doubt in your mind about that?

Mr. GUERRERO. No.

Mr. BARR. Is that based on an objective analysis according to

commonly accepted standards and methodologies of analysis?

Mr. GUERRERO. Yes.

Mr. BARR. Thank you, Mr. Chairman.

Mr. MCINTOSH. Thank you, Mr. Barr.

Let me conclude this panel by summarizing some of the important things that have, indeed, come out. And I think as much as

we may dislike the results, I don’t think it’s appropriate to be attacking the method when you don’t like the results, when the facts

are staring you right there in the face.

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It is a fact that, in 1996, it has taken 20 years, on average, to

clean up the sites that were finished there, and that your study

showed that, in that year, that is the case for those sites. That’s

an appallingly long time and not acceptable for us.

It also appears that the reforms which began being implemented

in 1992 and were fully implemented in 1994, and additional reforms in 1995 and 1996, don’t seem to have slowed down the increase in time it takes to list a site onto the National Priority List.

That number continues to climb every year since 1992 by roughly

the same amount.

Finally, it appears to us that 53 percent of the money that is

spent on this program is used for bureaucratic expenses, and 47

percent is used for real cleanup; and that, when we’re being asked

whether we should spend more money or not in the program, the

first question should be asked, are we using the money that is already there appropriately to get the maximum amount of cleanups

for the taxpayer money that is being spent. I think the answer to

that is a very clear no.

I appreciate the effort that you have brought forth in bringing

out these facts. I understand, when people disagree with facts or

they don’t agree with their agenda, that they may attack your

methods. But I think you’ve got very sound methods behind this report, and I look forward to seeing the completed work product presented to our committee.

Thank you.

Our next panel is a colleague of ours who has done a lot of work

in this area, has become somewhat of an expert, and I am very

much pleased to now recognize the Representative from Florida,

Mr. John Mica.

STATEMENT OF HON. JOHN L. MICA, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF FLORIDA

Mr. MICA. Thank you, Mr. Chairman. I thank you for your leadership on this issue and for again tackling some of the environmental cleanup that is so important to our country, our children

and our communities.

I am pleased to see Mr. Sanders has joined the panel as a ranking member. They have not only recognized his seniority but also

his expertise. He also is someone with whom I’ve served, and I

know his true compassion to see that the environment is protected

and that those that, indeed, are the least fortunate in our society

are not victimized by Government inaction, particularly in hazardous waste cleanup sites.

I come to you today having served on a similar panel back in my

first term, served among leaders of the Congress like Mr. Synar,

who is not with us, rest his soul, and Mr. Towns, and others. We

looked at these issues. Mr. Chairman and members of the panel,

I tell you, I’ve been there and I’ve heard before what EPA and GAO

are telling us today.

It continues to concern me that we, in fact, are now—and this

report confirms—taking a longer time to clean up sites; in fact,

that the only ones that are ‘‘cleaning up’’ in some of this process

are the attorneys and the people conducting studies—expensive

studies—and that the sites are not being cleaned up.

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Again, this confirms previous GAO findings, other subcommittee

and committee findings of Congress. We all want to get to the same

place, and that is cleaning up the sites that pose the most risk to

our communities and to our children. Where have we come? I don’t

think we’ve come very far. I am here to suggest today a couple of steps. One, I think we

need to start turning more and more of this responsibility over to

States. It’s easy to criticize the Federal Government, and their

record is obvious, but we should look at what the States are doing

and their initiatives. I think, if you analyzed it and your subcommittee analyzed it, you will find some of the cleanup sites that

EPA is taking credit for actually have been State and local initiatives that have resolved these situations.

Let me give two examples. In Pennsylvania where our colleague,

Mr. Ridge, became Governor 2 short years ago, he has cleaned up

13 brownfields sites in just 1 year at a cost of $711,000. As you

may recall, last fall EPA planned to host a brownfields conference

in Pittsburgh at a cost that was, at that time, estimated to be

$729,000. So they were going to spend the money for a conference.

I think they revised that down to half a million, after hearing some

congressional protests. Here’s an example of a State cleaning up brownfields sites at a

cost of $711,000, as opposed to spending it on a get together to talk

about it.

Minnesota is another good example. Minnesota has a voluntary

investigations and compliance program. I heard a speaker say recently, in fact, just within the last week, that Minnesota has

cleaned up more sites than the entire Federal Government Superfund program. This State permits innocent developers and others

to clean up contaminated land in return for a legal shield against

future liability. The ultimate goal is, in fact, cleaning up these sites

and not, again, becoming involved in a legal morass. In my own State of Florida, we had one site we looked at that

had a project manager almost every other year. They had so many

project managers that, in fact, the project managers left, became

consultants to this process and were further studying the hazardous wastesites. So we see that the Federal approach hasn’t

worked. We see good examples of where the State approaches are

working. Now, there are a couple of other recommendations other than

turning some of this over to the States and locals who can act a

little bit more expeditiously. First of all, we’ve got to use cost-benefit and risk assessment. You heard the EPA talking about the use

of risk assessment. What disturbs me is that we see the same problem. Remedy selection doesn’t use risk assessment. It is important

that we look for the most cost-effective solutions for cleanup. And we heard this before. Another GAO report that was presented to us just months ago said that the sites that are cleaned

up under these Federal programs are not the sites that pose the

most risk to human health and safety, nor do they address the poor

in the community. That problem still has not been addressed. So

some risk assessment should be used in priority selection of the

sites.

Then addressing, finally, the question of retroactive liability,

EPA continues to let polluters not pay and then come back to us

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and ask for more money from the taxpayers. The original intent

was good: have polluters pay, have polluters clean up. This has

been distorted. Over $4 billion, according to EPA Watch, has been

lost because EPA did not pursue these folks and let the statute of

limitations expire.

So we’ve got a problem that still exists. It requires our oversight

and our staying on EPA to make this program work. And we need

to look at other effective solutions that States are adopting to clean

these sites up that pose the most risk to our communities and our

children.

I thank you for the opportunity to be here. I was hoping that I

would come before your subcommittee and all the sites would have

been cleaned up by now, and we could have had a meeting of celebration, but that’s not the case. Again, thank you all for your leadership on this issue.

Mr. MCINTOSH. Thank you, Mr. Mica. Hopefully, we can perhaps

get some reforms and continue to further implement the reforms

the agency has put into place, and achieve a record somewhat like

Governor Ridge’s, where you actually get the job done at relatively

little expense.

I have no questions for Mr. Mica.

Mr. Sanders.

Mr. SANDERS. I would just say a few words. First of all, John,

thank you very much for your kind remarks. As you know, there

are disagreements about some of the conclusions that you’ve

reached and the chairman has reached. It is not necessarily agreed

by everybody that the process now has slowed down. There is difference of opinion about the methodology used by the GAO.

Second of all, I’m sure you will agree that while we all want

flexibility, we want to learn from everybody involved in the process,

and that we all agree some States have done an excellent job, you

will not disagree that some States have done an atrocious and neglectful job. That is my assessment.

I think we can all share the common goal of getting these sites

cleaned up as quickly as possible and as cost-effectively as possible.

Thanks for your contribution.

Mr. MICA. Thank you. I look forward to working with you in that

regard.

Thank you, Mr. Chairman.

Mr. MCINTOSH. Thank you very much, Mr. Mica.

Mr. Sanders, I propose we take a 10-minute recess to go vote and

come back.

The committee will stand in recess.

[Recess.]

Mr. MCINTOSH. The subcommittee will reconvene and come to

order.

Let’s proceed now to our final panelists of the day. I appreciate

both Mr. Wholey and Ms. Klemm for coming forward and talking.

Now, I understand that GAO and administration witnesses are not

covered by House Rule XI, obviously, but Ms. Klemm would be.

And it is my understanding that you do, in fact, receive some Federal funds, and I am also told that you will provide the subcommittee with a written record of all Federal grants, subgrants,

contracts, and subcontracts that you receive.

179

Why don’t we first proceed to swearing everybody in, and then

I’ve just got a couple questions for you along those lines. If both

witnesses would please rise.

[Witnesses sworn.]

Mr. MCINTOSH. Let the record show that both witnesses answered in the affirmative.

Ms. Klemm, just to make sure we understand the facts correctly,

so that the record will be clear, do you receive some Federal

grants?

Ms. KLEMM. Yes.

Mr. MCINTOSH. Could you summarize those grants by the

amount and type they are?

Ms. KLEMM. I called my office to get some information so that I

can at least have some response. First, let me say that none of the

money that I, as the owner of Klemm Analysis Group, or the organization, have received has ever come from EPA.

The largest contracts we have with the Federal Government, and

this is over the past 10 years, are with the Centers for Disease

Control and Prevention. We have a task order contract that is in

its 5th year, and the total of that, to date, has been slightly over

$7 million. It was signed in 1992.

We also, last year, received one of the Presidential Advisory

Panel awards for Gulf war illnesses, which is through Fort Detrick,

Department of Defense. That is for $778,000 and is a multiyear

contract awarded last June.

We have been working for the Substance Abuse and Mental

Health Services Administration since September 1991. The amount

of that contract at the time of award, and it has remained at the

same amount, is about $1.5 million. It is still ongoing.

We have a project with the Department of Veterans Affairs to

study women who served in the Vietnam era. The second phase of

that study is ongoing now and is for $1.3 million.

Mr. MCINTOSH. Ms. Klemm, if you would like to just go ahead,

we can put all of that into the record.

Ms. KLEMM. OK. Fine. I thought you wanted me actually to go

through those.

Mr. MCINTOSH. I did ask that, and you were very kind to proceed. But in order to get to your testimony, we can do that, and

we do look forward to seeing the full list.

Ms. KLEMM. OK.

Mr. MCINTOSH. Let me emphasize, just for the record, that our

effort here is not to create a trap for people in any way but really

just to comply with the spirit of this new rule in the House. So I

think your best efforts, in terms of disclosure, which you have done

admirably, is great, and I thank you for that. We can submit the

rest of the list and update it further later on.

Ms. KLEMM. OK. Great. That’s fine.

Mr. MCINTOSH. Thank you.

Let’s turn now to Ms. Klemm, if you could give us your testimony.

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STATEMENTS OF REBECCA J. KLEMM, PH.D., KLEMM ANALYSIS GROUP; AND JAMES WHOLEY, SENIOR ADVISOR FOR

EVALUATION METHODOLOGY, GENERAL ACCOUNTING OFFICE

Ms. KLEMM. Mr. Chairman, I have a written statement which I

ask that you include in the record of this hearing, and I will briefly

summarize my views and then answer any questions you might

have.

Mr. MCINTOSH. We will include the full statement.

Ms. KLEMM. OK. My name is Rebecca Klemm. I am the president

of Klemm Analysis Group here in Washington, DC. It is a statistical research and analysis company that has done a large number

of studies assessing statistical work and performing analysis for

both Government and commercial clients.

I have served as a court-appointed expert witness on statistical

evidence and am currently a member of the National Conference of

Lawyers and Scientists of the Association for the Advancement of

Science and the American Bar Association Science and Technology

Section. I earned my Ph.D. in statistics from the Iowa State University and have served on the faculty of Georgetown University

and Temple University, where I taught statistics. I am also past

president of the Society of Risk Analysis, the Washington, DC,

chapter.

I am not an expert on the Superfund and, in fact, have never

done any work for the EPA. I am here today because Congressman

Waxman asked me to look at the methods used by GAO in the

work they are reporting and did report in their testimony today. I

have only seen their testimony and I heard it today, and have not

had the opportunity to review the data in detail that they used.

However, reading their testimony and hearing today, I believe that

I can make some suggestions that would be helpful to their analysis and the work of this subcommittee.

The GAO’s work reports their estimates of the time that it takes

to list a hazardous site after it is discovered and to clean it up after

it is listed. The issue is whether the procedure they used to make

their estimates is the most useful one.

One issue is that GAO only looks at the sites that were listed.

If a site was discovered but not listed, it does not come into their

calculations of the average time. We do not really know the effect

of this on the results. It could be that sites which are not listed are

quickly decided, or it could be that because they are less of a problem, EPA takes longer to get to them. But they are not included.

Another issue is that GAO calculates time by averaging the time

it took for cases closed in a particular year, and we have heard a

lot of discussion about this. They look at the year that it is closed

and how long it took to get to this, looking backward.

Because the law was passed in 1980, there were fewer years

available in the earlier period. So, in 1982, there were only 2 years

since the law was passed. It is a bit uncertain as to what the discovery dates for the early cases were. In other words, the further

out you get from 1980, the more years appear to be available for

being included in the average.

If we calculate the number the other way, that is to say, examining cases discovered in a particular year, going forward, the probVerDate 11-MAY-2000 13:56 Jun 06, 2002 Jkt 078862 PO 00000 Frm 00184 Fmt 6633 Sfmt 6602 E:\HEARINGS\41517 pfrm12 PsN: 41517
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lem is presented in mirror image. There are fewer years available

for averaging in the later time period. So it is not at all surprising

that these two methods get different results, and we have heard

about results from both kinds of methods today.

Another issue is how GAO treats severity or complexity of a site.

It could be that time to completion is influenced by how serious the

hazard is, but there is no analysis of this presented. During panel

one, there was discussion about the various locations of sites, and

that they tend to be more complex because of the various locations

or operational groups, and that they do tend to take more time. I

think that should be included in the analysis.

It is important for this work to specify how we are going to use

these results; specifically, what we are going to compare the result

to. In fact, the Superfund determinations involve many decisions

and reviews. To get a good idea of what is going on, we need to

include information about all of these decisions, even those pending. An analysis of ‘‘time to decision’’ or oftentimes called ‘‘eventsbased analysis’’ must include information about all decisions made

and those that are pending.

In this situation, that includes all decisions about all discovered

sites, as well as separate locations of an original single site. We

need to look at the entire process, as was mentioned by the second

panel and the first panel about the complexity. I agree with including those issues into the analysis.

Mr. Chairman, after that short statement, I would be happy to

answer any questions.

[The prepared statement of Ms. Klemm follows:]

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Mr. MCINTOSH. Thank you very much, Ms. Klemm.

Mr. Wholey, would you please share with us your testimony.

Mr. WHOLEY. Mr. Chairman, my name is Joseph S. Wholey. I am

a professor of public administration at the University of Southern

California and senior advisor for the evaluation methodology at the

GAO. My work focuses on the use of performance measurement

and evaluation to improve Government performance and policy decisionmaking.

I don’t have a prepared statement. I would be happy to respond

to any questions that you may have.

Mr. MCINTOSH. Thank you very much. Let me just ask you, I

guess as the first question, do you agree with Ms. Klemm’s comments on the study that was presented today.

Mr. WHOLEY. Mr. Chairman, I agree with the thought that there

is no perfect measurement system, if that was part of Dr. Klemm’s

testimony. I think that we are always trying to weigh the feasibility and cost of different measures against the usefulness of the

measures, which certainly was part of Dr. Klemm’s testimony.

GAO, in my view, has used a reasonable, appropriate measurement scheme in its analysis. Other measures might also be appropriate. I could expand slightly, if you wish.

Mr. MCINTOSH. Yes, that would be great.

Mr. WHOLEY. In my view, and this is what I would hope to see

coming out of the hearing today, the key to useful performance

measurement is, first, to get some agreement between the agency

and the Congress on a set of goals that we are working toward, and

then for each goal, a reasonably small set of measures that will let

us know if we are making progress or not.

A lot of time has been spent today on two of the goals of the

Superfund, which might be called timely listing and timely completion, but the Superfund program has many goals. So the first step

is to try to come together on what are the goals; what are we trying

to accomplish around here? We heard about risk toward the end,

I guess the next to the last panel, as you would classify it, or perhaps the last panel.

So the point, though, as Dr. Klemm had to say, is that we have

to think about the use of the information. Is this performance information going to help manage the program better, help the program

to perform better, help inform the Congress better as to what is

happening in the program, help in your own decisionmaking process?

Mr. MCINTOSH. Now, GAO mentioned in its testimony that there

were alternative means of analyzing the data that confirmed the

results they achieved with the method they chose. Are you familiar

with those?

Mr. WHOLEY. Well, I had seen some draft versions of their testimony for today, and over the last several days made some suggestions. I looked at the statutory deadlines for listing in SARA. I

looked at the expectations that EPA had set for cleanup of sites in

SARA.

Some supplementary analyses were done of a prospective nature,

talking about the percent of time that those deadlines or expectations were being met. That is a prospective methodology that is included in the testimony that was given earlier today. UnfortuVerDate 11-MAY-2000 13:56 Jun 06, 2002 Jkt 078862 PO 00000 Frm 00188 Fmt 6633 Sfmt 6602 E:\HEARINGS\41517 pfrm12 PsN: 41517
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nately, I was not in the room, but I have read the testimony that

was given earlier today and submitted to you.

Mr. MCINTOSH. Wouldn’t you say, if the goal is to quickly clean

up the sites and reduce the risk to the environment and health,

that a measurement of the length of time it takes to clean them

up would be important in determining whether you meet that goal?

Mr. WHOLEY. Well, as I said before, Mr. Chairman, I think there

will typically be more than one appropriate measure. I think the

measure you just mentioned, looking backward in time, is one appropriate measure. I think the percent of cases that are completed

within some reasonable standard is another appropriate measure.

And I have no doubt that there might be two or three other appropriate measures.

The worry, if we just keep adding more and more measures, however, is, how is the reader or the listener to process it all. That’s

why I say, for each goal, a few measures, and if possible, an agreement between Congress and the agency to use these measures and

report back, in a consistent fashion, what is happening in terms of

those measure for each goal.

Mr. MCINTOSH. Thank you.

Ms. Klemm, would you say there are multiple measures, as well,

and that it depends on the goal as to which measure you look at?

Ms. KLEMM. Yes, basically. There are multiple measures. One

can do retrospective measures, as GAO primarily does. One can do

prospective measures, which some analysts call those cohorts. I

think they all have value for presenting something about what is

going on.

I do think, in some of the questions that were raised today about

backlog and concern about backlog, that the more one looks retrospectively, the more the effect of the backlog can come into play.

Particularly, if there is interest in backlog that has been reoccurring or preexisting across different administrations, then I think

that information should be augmented and brought forward; if, in

fact, one is to ultimately have a goal to understand how the length

of time relates to what we can do to shorten it.

I think we all agree we want to maybe shorten anything that has

a public health implication and environment implication. Just providing information or average of time to get to where we are,

where, in fact, there could have been a hiatus, we don’t know even,

that things were stopped, doesn’t really help to know what we can

do to shorten the gap in the future.

Mr. MCINTOSH. But it would, if you demonstrated there was a

lengthening of time, alert you to a problem, if your goal is to have

rapid cleanup.

Ms. KLEMM. I do believe that looking only retrospectively will not

tell you whether it is really lengthened, because it could be an artifact of the fact that you actually have calendar time that has gone

forward, and you could be just measuring the length of more available calendar time and not necessarily due to the lengthening of

the time to do the actual activity.

Mr. MCINTOSH. But if you have, as we do there with those slopes,

where it continually takes a longer and longer amount of time to

put a site onto the listing, and then that triggers another 10-year

period of actual cleanup, it appears that each year, as you add a

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new site to that, it looks as if you are going to, if history repeats

itself, have a longer and longer period before you can expect the

cleanup to occur.

Ms. KLEMM. It could, because you have more time that has

elapsed. In the same kind of situation, let’s suppose—I think on the

chart that’s on the left over there, is it 1986, the first year?

Mr. MCINTOSH. Yes.

Ms. KLEMM. There has only been 6 years from 1980 at that time.

If, in fact—and I don’t know whether this is true or not—but if, in

fact, the easy cases were completed, they were completed right

away. If the difficult or the multiple locationsites were kept partially completed, we don’t even know that, but they keep going on.

If they are still in the pipeline, partly because they are more complicated and they themselves take more time, they are going to

show up, by the date when they were completed, looking as if it

took longer to complete them.

Now, this is a flow process. There are new ones coming in every

year, and there are ones getting completed every year. The tradeoff

between the incoming new cases and the completed old cases aren’t

being told in that kind of a chart. It leaves out the impact of the

original backlog. You can’t see that. And you could get into that information if we were to look at when were they actually started on

discovery and where were they at the beginning of each year? Had

they even been begun? Were they in process? Were they partially

completed? And so on.

I think that level needs to be looked at, and that’s what I mean

by more of the events-based. What is pending? Have they even

been started? Because you could have the easier ones done first,

like a lot of us do with a lot of our tasks when we are confronted

with a choice of things to do, get some done, then you will look like

you do them quickly, and the hard ones are still remaining. And

somebody who then actually solves the hard ones might look like

they took a long time.

Mr. MCINTOSH. So, in order to fully understand that, you would

want to break it down into different components, is that what I am

hearing?

Ms. KLEMM. Yes, that’s correct.

Mr. MCINTOSH. If one of the components was pretty consistent in

taking, say, 2, 21⁄2 years, and another component you saw a significant fluctuation over time, then you would be more concerned

about that component that fluctuated over time?

Ms. KLEMM. I would certainly want to look at it and understand

why. This chart is too combined. We can’t really, to me, use it for

understanding what we might do and deciding whether, in fact, it

really has taken more time, and then what we can do to shorten

it if it has.

Mr. MCINTOSH. Then one of the things I think would be useful

would be, as GAO moves to a final report, is to break out different

subsets of that overall time and let us see which ones seem to have

been expanding and the amount of time they take.

Ms. KLEMM. Yes. That’s a recommendation that I would make.

Mr. MCINTOSH. My hunch is, you are going to find that sort of

the final stages of action, where they are really cleaning up, have

roughly about the same amount of time for them, but the preVerDate 11-MAY-2000 13:56 Jun 06, 2002 Jkt 078862 PO 00000 Frm 00190 Fmt 6633 Sfmt 6602 E:\HEARINGS\41517 pfrm12 PsN: 41517
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paratory stages have been what has been expanding. But we need

to see.

Ms. KLEMM. It may very well be. I don’t know.

Mr. MCINTOSH. Which, I agree with you, would then tell you— that might be the source of reform, an area to look at to try to reform those stages which have been expanding.

Thank you very much. I have no further questions.

Mr. Waxman.

Mr. WAXMAN. Thank you, Mr. Chairman.

I want to thank both of you for being willing to stay this long

day and to give us your views on this issue.

Mr. Wholey, you work for the GAO, and you have had a chance

to review their methodology and their conclusions.

Mr. WHOLEY. That’s correct.

Mr. WAXMAN. The chairman repeated something that he had said

earlier, that GAO found that it will take 20 years to clean up a site

discovered today. Is that GAO’s conclusion?

Mr. WHOLEY. Having heard GAO say no, I feel confident in saying no. I did come to the hearing about noon, however. I have not

been here for the whole morning.

Mr. WAXMAN. Mr. Guerrero is here, if I’m saying something incorrectly.

Mr. WHOLEY. He did say no.

Mr. WAXMAN. I did not understand GAO to say that.

Mr. WHOLEY. I heard him say no.

Mr. WAXMAN. OK. Then I further understood that GAO did not

make a determination that the reforms that have been put into

place in the Superfund programs have been unsuccessful or successful. The chairman indicated he thought GAO has concluded

that the reforms were unsuccessful.

Mr. WHOLEY. Mr. Waxman, if I could respond in general to your

question.

Mr. WAXMAN. Sure.

Mr. WHOLEY. Because I would like to refer, again, to the testimony that was given on my left a little while ago, which I thought

was helpful to getting us somewhere here. It occurred to me, in

reading over the testimony and also in listening to Dr. Klemm, that

the idea of adding in some intermediate measurement points,

which the chairman has also been talking about, a couple that I

noted down were what proportion of the cases are we reaching a

reasonable—within a reasonable time, are we at least selecting a

remedy, that would be one.

Further on down, at a quite later stage, within what proportion

of the time are we at least initiating the cleanup action. So apparently EPA, at one point, perhaps they were a little too enthusiastic,

had suggested that after the site was a listed that a good standard

would be to get it cleaned up in 5 years. As I now understand it,

just from reading the GAO testimony, which you have heard, they

now think that perhaps a reasonable standard would be to clean

the sites within 7 or 8 years from the time of listing.

Then I would wonder, couldn’t we have—it’s sort of like a set of

milestones—have they at least selected a remedy.

Mr. WAXMAN. Well, I think what you are saying.

Mr. WHOLEY. Could I finish my response to you?

188

Mr. WAXMAN. Yes. Well, you’re not really responding to my question, but I will let you finish, because you are being very instructive. But my question to you was, did GAO say they had enough

information to judge that the reforms were a failure?

Mr. WHOLEY. I appreciate your reminding me of the question, because I might have missed responding to the question in my enthusiasm to outline, but it is responsive, however.

If the reforms are working successfully, and if we had standards

or rough time estimates by which we would try to complete the different stages in a cleanup, then we would expect to see movement

in a favorable direction on the proportion of sites listed for which

we get the remedy selected in a reasonable time. That will be sensitive measure. You don’t have to wait for the whole cleanup.

We would also expect to see favorable movement in the proportion of the sites, once listed, for which we have begun the cleanup

in a reasonable time. Then, finally, we would have the proportion

of the sites for which they did the cleanup in a reasonable time.

So I think it would be possible to introduce a more sensitive

measurement system into the game that would have a chance to

pick up the effect of the reforms of 1992 and 1994.

Mr. WAXMAN. Right. And then we would know whether they

have succeeded or not.

Mr. WHOLEY. Well, we wouldn’t know.

Mr. WAXMAN. We would have some idea of whether they are

moving in the right direction.

Mr. WHOLEY. Yes, we would.

Mr. WAXMAN. Look, what is happening at this hearing is a GAO

draft report that is being rushed to a congressional subcommittee.

Now, that’s very unusual, because usually you wait until there is

a final report, because a draft report means that GAO is still getting input and evaluating the issue.

GAO has a draft report, and that draft report can be used for a

political agenda. And the political agenda is to make a statement

like, ‘‘It will take 20 years before a Superfund site that is listed

today ever gets cleaned up.’’ That’s a political statement, not a

statement of reality. Or, ‘‘The reforms have failed.’’ That’s not a

statement that gives us an analysis of what’s happening; it’s a

statement that can be used for a political point of view.

Now, if we want to evaluate what’s really going on, we have, as

both of you pointed out, measurements to make, points to evaluate.

We have to look at the kind of cleanup that’s involved, whether it’s

a complex cleanup or a simple cleanup.

That gets me to the point that I wanted to pursue with you, Dr.

Klemm. Some Superfund sites, like an oil spill, are relatively simple to clean up. I say ‘‘simple,’’ relatively speaking, but for some the

techniques for cleanup are known and the extent of damage is limited. At other sites, damage is widespread, varies across the terrain, and the best technique for cleanups are unknown. Clearly,

these sites will have quite different cleanup times.

Now, the GAO, in calculating averages, ignores the characteristic

of the site. Is that appropriate? I think you would agree it is not,

but I would like you to give your answer to it. Is it helpful?

Ms. KLEMM. I don’t think it’s particularly helpful for understanding whether improvement is being made and in understanding,

189

from a management and decisionmaking point of view, whether, in

fact, there is something that can be done to shift resources, or

whatever. You need to look at the parts and the complexity of the

sites and/or their multiple locations.

We have heard already today from individuals who have the kind

of technology to do cleanup that that does affect the length of time.

Since length of time, by people who seem to know about those

things, does potentially relate to the complexity, then we should

look at that, the types of cleanup required, and break out by those

characteristics into subgroups to see whether, in fact, there are

some of them that are generating what on the surface might look

like very lengthy cleanup times, and they are the most complex,

possibly.

Mr. WAXMAN. Well, the GAO has disagreed with its own advice

when it came to the drug approval evaluation, where they said that

measurement shouldn’t be based on the time of completion; it’s less

appropriate than one based on time starting from the origin of the

approval process. But in this report they seem to think that—because both are flawed, and you indicated clearly that both are

flawed, they give you a different measurement—they are free to

choose whichever suits their purpose.

This is not the only subject where people want to look at the

change in the duration of something over time. Some scholars

studying poverty measure how long people are poor. Others measure spells of unemployment. Do any of these other disciplines use

the kind of average used by GAO today in their report? How do

these scholars measure and compare durations?

Ms. KLEMM. The issues that are being addressed here, in terms

of time to clean up, are not unique to this application or this particular kind of a problem. Analyzing time to an event along a continuum of a process occurs in lots of places. How to handle those

is not unique here.

The issue where you have a starting point and you have a truncated history is a very important concept to keep in mind, because

the initial conditions, as some people might call them, can play a

lingering effect into the future. So understanding what the backlog

is, or initial conditions, or where you start, it is important to continue that into the analysis into the future.

That’s where looking at events-based analysis, which in some

areas they call survival analysis or proportional hazards analysis,

allows you to watch the dropoff over each of the events from

whence you started, taking into consideration the truncation at the

beginning, with a backlog, location in time, and the truncation at

the new end, which happens if you follow just a cohort. Those

things are available as procedures and are used in lots of areas,

having, I guess, originally been developed in biological and economic applications.

Mr. WAXMAN. Mr. Wholey, let me ask you this question. You recommend that an index of site complexity should be developed, and

I think that’s a very useful suggestion. But let’s suppose for the

moment that 1 year EPA spent all of its resources cleaning up simple sites, and the average cleanup time, using the GAO method,

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plicated sites, and the average is 3 years, again using the GAO

method.

Would it be reasonable to conclude from those numbers that

cleanup is taking longer?

Mr. WHOLEY. Mr. Chairman—I’m sorry—Mr. Ranking Member.

Mr. WAXMAN. Call me Waxman. Call me Henry. Whatever.

Mr. WHOLEY. Mr. Waxman. I wouldn’t call you Henry, but I

would call you Mr. Waxman. Mr. Waxman, I think it would be valuable to include both averages for the total cases in the report and

also averages for subgroups, such as easy sites, average sites, and

more difficult sites.

Mr. WAXMAN. You are saying what would be appropriate, but

would it be reasonable to conclude?

Mr. WHOLEY. Mr. Waxman, could I respond to your question?

Mr. WAXMAN. No, because I want you to answer my question.

Mr. MCINTOSH. Mr. Waxman, let the gentleman answer. If you

don’t interrupt him, he would be able to answer.

Mr. WAXMAN. I don’t want to interrupt you except, at some point,

the chairman is going to say, enough time. The question I asked

you, given that hypothetical, would it be reasonable to say, when

they have spent a short period of time on the easy ones and a

longer period of time, on average, on the more complicated ones,

that therefore they are taking a longer time overall to clean up

sites? That doesn’t sound reasonable to me. Does it sound reasonable to you?

Mr. WHOLEY. Would you like me to respond to your question, Mr.

Waxman?

Mr. WAXMAN. As long as you’ve got my question clearly in mind,

go ahead.

Mr. WHOLEY. I do. Right. Thank you for reminding me of the

question.

Mr. Waxman, if the average cleanup took 2 years for one group,

one time, and the average cleanup took 3 years another time, most

people would say that 3 is bigger than 2.

Mr. Waxman, to continue my response, it would be most valuable

for everybody to have a breakdown that would clearly reveal for all,

which is the point you’re getting at, that the two had been for easy

sites, and therefore one shouldn’t think that the three, which was,

by definition, for more difficult sites, nobody should say that three

was performing worse than two, because the degree of difficulty of

the task had been obviously changed over that time.

Mr. WAXMAN. Well, again, to follow on this kind of logic, if we

have simple and complex sites, let’s assume we can know how long

it should take to clean up a site and that EPA is meeting that expectation in every case. Now, 1 year they finish 10 simple sites

that average 2 years, and then they have 5 complex sites that average 5 years. The GAO has calculated averages today that would

say this is an average of 3 years.

Would it be a fair evaluation of EPA to say that they were taking

too long to clean up simple sites?

Mr. WHOLEY. If I may respond, Mr. Waxman, it is the case that

GAO has calculated year by year in as much detail as Mr. Waxman

would wish.

Mr. WAXMAN. As I would wish?

191

Mr. WHOLEY. Yes, what time it had taken. For the purpose of

summary testimony, GAO has averaged different years together,

but there is no doubt that the calculations were made, say, for

1986, for 1987, 1988, 1989, 1990, 1991, and so forth, and all of

those numbers are available, as well.

To come back to a point that you made earlier, Mr. Waxman,

which appeared to be directed to GAO, could I respond to that

point?

Mr. WAXMAN. Yes.

Mr. WHOLEY. You suggested that, at certain points, when GAO

testified on uncompleted work, somehow or other GAO was rushing

to testify.

Mr. WAXMAN. No, no. Excuse me. I didn’t say that GAO was

rushing to testify. I think the chairman of the subcommittee was

rushing to have GAO testify because he had a report that would

fit in with a preconceived notion of his evaluation of the Superfund

program.

After all, this report says, if one looks at it only briefly or quickly, it’s just taking a longer time for EPA to do the job of cleaning

up the Superfund sites. That would seem to most people to say, ‘‘By

God, here we’ve got a Superfund program, and it’s taking longer for

them to do the job.’’ That would presume that years ago they were

doing a better job, because they were doing it faster, and now, with

those Clinton people in office, it’s taking them longer.

So ordinarily we wouldn’t have a hearing on a report until it was

in final form, but the GAO report, in draft form, is now brought

to us, I presume not at GAO’s request but at the chairman’s request.

Mr. MCINTOSH. Mr. Waxman.

Mr. WAXMAN. Yes, I yield to you.

Mr. MCINTOSH. Yes. What I’m hearing you saying is, that’s not

a criticism of GAO but a criticism of the Chair.

Mr. WAXMAN. You got it.

Mr. MCINTOSH. OK. Good. Let me put on the record, I’ve been

very careful not to say this administration is doing a worse job

than previous administrations. In fact, if you read carefully, in my

opening statement there is plenty of blame to go around.

The problem is in the program and inherent features in the program which allow us not to do a good enough job for the American

people in getting these sites cleaned up. I believe that this report

is very telling about the nature of that problem. And I don’t have

any intention of saying that therefore this administration is to

blame any more than any previous administration, but there is a

flaw in the program that I think all of us should work together to

try to fix.

Mr. WAXMAN. I thank you for that statement, and then I want

to ask Mr. Wholey if, given the chairman’s statement—and we both

want to make sure that there is a Superfund program that’s working—should we learn from this GAO report, as the chairman indicated, that it’s going to take, on average, 20 years to clean up a

site that is discovered today? And should we learn from this GAO

report that the reforms are not successful?

So, therefore, we should do something to change the situation,

because if those two statements are correct, that’s pretty alarming

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and might well lead us to certain kinds of changes. But if those

statements are not correct, we might want to evaluate the whole

problem in another way.

Mr. WHOLEY. Mr. Waxman, we don’t have a GAO report in front

of us.

Mr. WAXMAN. A draft.

Mr. WHOLEY. And it appears to me that Congress often has to

take action before a GAO report will be finished. It just seems to

me likely that the Congress, on certain occasions, will wish to have

GAO testify on work in progress. We can’t say that a GAO report

says anything; it does not exist.

Mr. WAXMAN. You are really trying to slip around. The report is

going to be final in a month. We know what the report pretty much

says. We have an indication it’s probably not going to be changed.

But given the report that we have now before us, if it were to

be the final report and Congress were going to make some policy

decisions on it, I don’t think it’s fair, and I think you indicated you

don’t think it’s fair for us to read that report and conclude that

EPA is going to take 20 years, on average, in the future, and that

the reforms that are being put in place, which GAO specifically

says in its testimony—Mr. Guerrero said in his testimony, he is not

in a position to evaluate—we can’t conclude because of that statement that the reforms have failed.

I want to know what we should get from this report so we can

make good policy. Let me ask Ms. Klemm, do you think that we— you’ve been here all day, and you’ve read the draft report, and

you’ve looked at the methodology—do you think that’s a conclusion

that we should take from this GAO report in this hearing?

Mr. MCINTOSH. Let me remind Mr. Waxman that we’ve asked

these witnesses to come and talk about the methodology, not the

conclusions of the report.

Mr. WAXMAN. Given the methodology. Mr. Guerrero is here. If he

wants to come forward and tell us—because, as I understand—if

I’m wrong, Mr. Guerrero, I do want you to speak up. GAO did not

tell us, on average, it’s going to take 20 years in the future. And

GAO did not tell us that the reforms have failed. Mr. Guerrero, for

the record, is sitting in the front row.

Mr. MCINTOSH. Mr. Waxman, let me read for you the paragraph

in the draft report, so everybody can know what we’re operating off

of.

It says, ‘‘At its current pace,’’ which is a key qualifier, ‘‘EPA will

take, on average, at least 21 years to complete cleanups at nonFederal sites whose discovery was reported in 1995, 11 years for

evaluating the sites before listing, plus at least 10 years for cleanups after listing. Completing cleanups of newly reported Federal

sites would take at least 15 years. Furthermore, EPA’s data show

that the agency’s efforts to expedite cleanups by applying the

Superfund accelerated cleanup model, launched in 1992, are having

no noticeable effect on reducing the total time required for Superfund cleanup.’’

That is the paragraph in the draft report that we are discussing.

Mr. WAXMAN. Mr. Chairman, reclaiming my time and to respond

to that point, I think that’s a misleading statement from the GAO

report. Now, maybe it’s GAO that’s making the misleading stateVerDate 11-MAY-2000 13:56 Jun 06, 2002 Jkt 078862 PO 00000 Frm 00196 Fmt 6633 Sfmt 6602 E:\HEARINGS\41517 pfrm12 PsN: 41517
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ments. I’ve accused the chairman, but maybe I shouldn’t be so kind

to the GAO.

Ms. Klemm.

Ms. KLEMM. I would not make that statement from the result of

the two charts to the right. I don’t think they tell me what it will

take in the future unless I know something more about the sites,

their complexity, and what really has been the genesis of the numbers in the two blue charts.

Mr. WAXMAN. Do you disagree with Ms. Klemm?

Mr. WHOLEY. Mr. Waxman, I think I would refer you to this

point which I made earlier, and I would make it again, that GAO

does have available year-by-year, looking forward in time, what

proportion of sites, once listed, have been completed within a 5-

year period. It would shed light on the issue that you’re interested

in having light shed on here.

Unfortunately, by definition, we’re not going to spend much time

worrying about sites discovered in 1995, but at least there are data

for several different years, and I think they are such years as 1986,

1987, 1988, 1989, 1990, what proportion of the sites listed in that

year were cleaned up within a 5-year period. At least that would

show what the trend was, and it could help shed light on the question that you’re trying to shed light on here.

Mr. WAXMAN. I appreciate what you’re saying, but of course all

those years were before the reforms.

Mr. WHOLEY. Fair enough. But I’m just saying that that method

would allow us to also track the same thing for sites listed in 1991,

1992, 1993, and so forth.

Mr. WAXMAN. I want to conclude, Mr. Chairman, because you’ve

been very kind in allowing this extra time. The last sentence on

page 7 of the GAO report says, ‘‘The percentage of sites with 5-year

completions increased from 7 percent for sites listed in fiscal year

1986 to 15 percent for sites listed in fiscal year 1990.’’ So, in fact,

GAO came to a different conclusion as to those previous years. It

looks like one could read that sentence and be encouraged, things

they are moving in the right direction.

Mr. WHOLEY. That’s correct. That’s correct. But that was before—yes, that is correct, Mr. Waxman.

Mr. WAXMAN. Well, Mr. Chairman, this has been a most interesting hearing. I don’t know what value to put on the GAO report.

I know GAO has always done quite good work in the past and has

been helpful for policymakers. I’m going to have to look at this

more carefully and evaluate it, as will others, to see whether this

is going to be a helpful guide for us as we try to make policy decisions this year with the amount of information that we know and

that the GAO has reviewed.

Thank you.

Mr. MCINTOSH. Thank you. I would look forward to additional information being provided by the administration and EPA, which

they indicated they would be doing. In fact, if there is unanimous

consent, we will hold open the record for 2 additional weeks for information from EPA and some of the other witnesses—I know Mr.

Mica said he had some additional documents he wanted to put in— and complete the record that way.

Mr. WAXMAN. All Members?

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Mr. MCINTOSH. Yes, all Members will be able to submit additional information and statements. I think that one key thing that

has come up in this last panel is that we need to break down those

charts and look at the different subcomponents, as well. I am confident that GAO will do a good job in analysis of that.

Thank you both for participating and helping us out with this.

At this point, the committee will stand adjourned.

[Whereupon, at 2 p.m., the subcommittee was adjourned.]

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