STATEMENT OF CAROL M. BROWNER
CAROL M. BROWNER
U.S. ENVIRONMENTAL PROTECTION AGENCY
COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS
SEPTEMBER 4, 1997
Good afternoon, Mr. Chairman, and Members of the Committee. I am pleased to have this opportunity to appear before you to discuss the Superfund program and the progress of legislative reform of Superfund in the 105th Congress.
With all the attention on how to fix Superfund, it is easy to forget what Superfund is all about. Superfund is an important, and above all, a necessary program, dedicated to cleaning up our nation's hazardous waste sites. EPA has worked closely with the Agency for Toxic Substances and Disease Registry (ATSDR) in evaluating the impacts of these sites on public health. Superfund site impacts are real. ATSDR studies show a variety of health effects that are associated with some Superfund sites, including birth defects, cardiac disorders, changes in pulmonary function, impacts on the immune system (the body's natural defense system from disease and sickness), infertility, and increases in chronic lymphocytic leukemia. EPA also works with other federal agencies to assess the impacts of hazardous material releases on natural resources and the environment. Together, the efforts of these agencies, working with EPA, provide the basis for targeting cleanups to protect public health and the environment, and show the need for Superfund.
The Clinton Administration remains committed to responsible, Superfund legislative reform. Earlier this year, in March, I gave you my commitment to participate in a bipartisan process to build consensus on Superfund legislation. While original expectations for consensus reform were high, I am disappointed that our shared goal of enacting responsible Superfund reform legislation this year may not be realized. I am afraid that the markup of the Chairman's Mark of S.8 scheduled for next week will not produce a bill that enjoys the support of the Administration, Senate Democrats, or a broad range of Superfund stakeholders. Without this consensus, a Superfund bill cannot become law.
In order to enact such a consensus bill, we must reflect the current, fundamentally different Superfund program. In March, I stressed the need to evaluate statutory reform from the perspective of the Superfund program of today, not on the basis of out of date problems now resolved. As implementation of the Administrative Reforms progresses, we continue to appreciate the advantageous flexibility this administrative approach affords us to make adjustments as experience is gained, and juggle our workload. A good example is the Remedy Update Administrative Reform, which focuses on adjusting remedies to changing science and technology. Because of administrative flexibility, in our implementation of this reform we have seized opportunities to make other remedy improvements, and have been able to pace our updates, so as not to slow down overall cleanup progress.
Building on the progress of the Administrative Reforms, on May 7, 1997, the Clinton Administration provided you with its Superfund Legislative Reform Principles. These Principles reflect the Administration's vision for the future of Superfund -- a future that builds upon our progress over the past four years. In that time, we have worked to make Superfund a fundamentally different program, and these Principles reflect this change. The current Superfund program is faster, fairer and more efficient in protecting the nearly 70 million Americans, including 10 million children, who live within four miles of a toxic waste site. These Principles were shared so that you and the many stakeholders affected by these cleanups can understand our vision for the future and for the legislative reforms that will help shape that future.
The Administration's goals for Superfund reauthorization continue to be to: protect human health and the environment; maximize participation by responsible parties in the performance of cleanups; ensure effective State, Tribal and community involvement in decision making; and promote economic redevelopment or other beneficial reuse of sites. The Administration further believes that all of these goals should be undertaken in a manner that: increases the pace of cleanups; improves program efficiency and decreases litigation and transaction costs; and does not disrupt or delay ongoing progress.
I am encouraged to see some changes to S.8 have been negotiated since I last testified. Unfortunately, the majority of the bill's provisions do not reflect the current state of the program and the Administration's Principles, and are still troubling. The Administration began this process ready to work with you to craft Superfund reform legislation that could attract broad consensus support. We continue to support a consensus based legislative process, and if such a process can be reinstated, we believe we can craft a proposal that meets our goals and delivers on our commitment to achieve Superfund reform in the 105th Congress.
My purpose today is threefold: 1) to update you on the continued accomplishments EPA has achieved over the past few years, not only maintaining, but accelerating the pace of cleanup through three rounds of Administrative Reforms; 2) to discuss the Administration's Superfund Legislative Reform Principles, which are based on the current accomplishments of the Superfund program; and 3) to discuss our concerns with the Chairman's Mark of S.8, which continues to fail to meet our Administration's Principles for responsible legislative reform.
Finally, the Administration remains concerned over the expiration of the authority to replenish the Superfund Trust Fund. It has been two years since the tax expired, leaving industry with a windfall while the Trust Fund diminishes. The Congressional Budget Office has projected that the Trust Fund will, at the end of the next fiscal year, have less remaining than will be needed to keep the program operating, to keep site cleanups underway, in the following fiscal year.
In addition to the expiration of the tax, we are disappointed with the recent denial of the President's request for additional appropriated funds to address the backlog of Superfund sites that are currently awaiting cleanup. Without the availability of these additional funds, many communities will simply have to wait for cleanups in their neighborhoods, even though the studies are done, and the only thing preventing us from starting cleanup is a lack of funds.
A FUNDAMENTALLY BETTER SUPERFUND PROGRAM
Before discussing Superfund legislation, I'd like to provide an update to my testimony given in March on the current status of the Superfund program. To reiterate, proof of a faster, fairer, more efficient Superfund program can be found in several simple indicators. We have completed cleanup at 447 sites on the National Priorities List, and 500 more are in construction. We have reduced by more than a year the average duration of the long-term cleanup process, with much faster cleanups at sites using presumptive remedies. The President's budget request for Fiscal Year 1998 would have allowed us to double our cleanup goals over the next few years and have 900 sites completed by the end of the year 2000. Our most recent analysis make us optimistic that we can continue to accelerate the pace of cleanups and achieve our goal of a 20% reduction, or two years, in the total cleanup process time. Additionally, responsible parties are performing or funding approximately 70% of Superfund long-term cleanups, saving taxpayers more than $12 billion.
Meanwhile, EPA has succeeded in removing over 14,000 small contributors from the liability system, 66% of these in the last four years. We offered orphan share compensation of over $57 million last year to responsible parties willing to negotiate long-term cleanup settlements, and continued the process this year at every eligible site. Finally, costs of cleanups are decreasing because of a number of factors, including: the use of reasonably anticipated future land use determinations, which allow cleanups to be tailored to specific sites; the use of a phased approach to defining objectives and methods for ground water cleanups; and EPA's 15 plus years of implementing the program providing greater efficiencies and lower costs when selecting cleanup options.
Through the commitment of EPA, State, and Tribal site managers, and other Federal agencies, EPA has achieved real results protecting public health and the environment while experimenting with and instituting changes to our cleanup process through its Administrative Reforms. EPA is committed to further administrative and regulatory improvements in the Superfund program in the years ahead. Our objectives for administrative reform have been to:
- Protect public health and the environment over the long-term, while lowering the cost of cleanups
- Increase the pace of cleanups
- Preserve the principle that parties responsible for contamination should be responsible for cleaning it up, while promoting fairness in the liability scheme, and reducing transaction costs and litigation
- Involve local communities, States, and Tribes in decision making
- Promote economic redevelopment at Superfund sites
The success of the Administrative reforms has been demonstrable. In a December 1996 report, the Superfund Settlements Project (SSP), a private organization comprised of industry representatives, acknowledged EPA's "substantial" track record "since EPA began implementing the October 2, 1995 administrative reforms...especially in light of the severe obstacles that EPA encountered during fiscal year 1996 as it began implementation of these reforms."
Since the March hearing, the Administrative Reforms have continued to be evaluated by parties outside the Agency, such as the Chemical Manufacturer's Association (CMA) and the United Stated General Accounting Office (GAO). In their April 1997 report, CMA, a non-profit trade association whose member companies account for more than 90% of the productive capacity for basic industrial chemicals in the United States, stated that "at sites where the reforms have been fully applied so far, EPA's reforms have produced benefits that otherwise would not have occurred."
GAO, the investigative arm of Congress charged with examining all matters related to the receipt and disbursement of public funds, found that "while EPA has not evaluated the overall effects of the reforms, the Agency has reported quantifiable accomplishments resulting from the implementation of 6 of the 45 reforms." The GAO report, however, did not attempt to measure the innumerable unquantifiable benefits of the Administrative Reforms, such as the experience and knowledge gained from pilot projects, or even the lawsuits not filed as a result of liability reforms for small parties.
For a detailed discussion of the Administrative Reforms, please refer to my testimony before this Committee in March. Before discussing the Administration's Legislative Reform Principles, however, I'd like to provide you with an update on some of the many successes we have achieved since my last appearance before this body.
Providing Protective Cleanups at Lower Costs
EPA is continuing a number of administrative reforms which promote cleanups that are technologically and scientifically sound, cost-effective and appropriately consistent nationally. These reforms will lower cleanup costs, while assuring long-term protection of human health and the environment.
EPA's National Remedy Review Board is continuing its targeted review of complex and high-cost cleanup plans, prior to final remedy selection, without delaying the overall pace of cleanup. Since the Board's inception in October 1995, it has reviewed 19 cleanup decisions at 18 sites, resulting in estimated cost savings of approximately $23 - $38 million. In addition, EPA has achieved great success in updating cleanup decisions made in the early years of the Superfund program. After two years of implementation, more than $500 million in future cost reductions are predicted as a result of the Agency's review and update of remedies at more than 90 sites. It is important to stress, however, that these future cost reductions can be achieved while still preserving appropriate levels of protection, and the current pace of the program.
Increasing the Pace of Cleanups
The completion of 447 Superfund toxic waste site cleanups (as of August 29, 1997) is a significant measure of the improved pace of cleanups. Currently, over 85% of the sites on the National Priorities List (almost 1,200 of 1,347) are either undergoing cleanup construction (remedial or removal), or have been completed. EPA is continuing the use of its Superfund Accelerated Cleanup Model (SACM) to spark early cleanup action, and standardized or "presumptive" remedies, as well as other reforms, to maintain and increase this pace.
Promoting Fairness in Enforcement
EPA's "Enforcement First" strategy has resulted in responsible parties performing or pay for approximately 75% of long-term cleanups, thereby conserving the Superfund trust fund for sites for which there are no viable or liable responsible parties. Through Administrative Reforms, EPA has addressed the concerns of stakeholders regarding the fairness of the liability system. EPA has continued implementation of its 1996 "orphan share compensation" policy, under which EPA offers to "forgive" a portion of its past costs and projected future oversight costs during every settlement negotiation for long-term cleanup or non-time critical removal, to cover some or all of the orphan share at the site. The orphan share policy has encouraged settlement, rather than litigation, and enhances the fairness and equity of settlements. Last year, the Agency offered over $57 million in orphan share compensation to potential settling parties across the United States, and continued that practice this year at every eligible negotiation.
In addition, EPA continues to use its settlement authority to remove small volume waste contributors from the liability system, responding to the burden third-party litigation can place on parties that made a very limited contribution to the pollution at a site. To date, the Federal government has completed settlements with over 14,000 small volume contributors at hundreds of Superfund sites, protecting these parties from expensive private contribution suits. In addition, EPA continues to step in to prevent the big polluters from dragging untold numbers of the smallest "de micromis" contributors of waste into contribution litigation by publicly offering to any such party $0 (i.e., no-cost) settlements that would prevent lawsuits by other PRPs. The real success of this approach is to be measured by the untold number of potential lawsuits that we have discouraged.
Finally, EPA is continuing the successful use of site-specific special accounts to direct settlement funds towards cleanups (over $220 million in principal, and $35 million interest generated from more than 70 accounts), and is continuing implementation of its many pilot projects, such as the allocation pilot project, as well as other reforms to the liability system.
Involving Communities and States in Decision making
The Agency supports the principle that communities must be offered opportunities for involvement in the cleanup process as early as possible and continue to be involved to the time the site is cleaned up. Our "consensus-based" approach to the remedy selection process continues to empower local citizens and other stakeholders to be involved in the remedy selection process that ultimately results in EPA choosing common sense remedies that meet statutory and regulatory requirements. In addition, our Regional Ombudsmen continue to serve as a direct point of contact for stakeholders to address their concerns at Superfund sites, and our electronic lines of communication and our Internet pages continue to provide information to our varied stakeholders on issues related to both cleanup and enforcement.
Additionally, EPA continues to acknowledge the successes that States are achieving conducting thousands of hazardous waste site cleanups under State and Federal Superfund programs. Most of these sites are short-term, relatively inexpensive actions that address immediate hazards, and a growing number are conducted pursuant to State voluntary cleanup programs, as discussed below. EPA is continuing to increase the number of sites where States and Tribes are taking a lead role in assessment and cleanup using the appropriate mechanisms under the current law. Agreements such as those with the State of Minnesota and the State of Washington are excellent examples of these efforts, which build upon a foundation of demonstrated State readiness, and provide clear State decision-making authority with support from, but minimal overlap with EPA.
States are developing voluntary cleanup programs to speed up the cleanup of non-NPL sites, which, generally speaking, pose a lower risk than those sites listed on the NPL. These voluntary cleanup programs pose an alternative to the conventional CERCLA or State Superfund-like enforcement approach to cleaning up contaminated sites. Through State voluntary cleanup programs, site owners and developers identify and clean up sites by using less extensive administrative procedures. The site owners and developers may then obtain some relief from future state liability for past contamination. This approach encourages cleanup of sites, such as Brownfields, that might otherwise not be cleaned up because of limited Federal and State resources.
In addition, financial and real estate sectors are sometimes reluctant to support the redevelopment of brownfields and lower risk sites because they are concerned about potential Superfund liability. Some developers have also expressed concern that the uncertainty arising from potentially overlapping Federal/State cleanup authorities can become a disincentive to cleanup and redevelopment of these sites. EPA is addressing this concern by clarifying EPA and State roles and responsibilities, which helps reduce such uncertainty and promotes the cleanup and redevelopment of lower risk sites, such as Brownfields.
To encourage partnerships with States and Tribes, EPA recently announced the issuance of draft guidance that promotes State voluntary cleanup programs, and encourages States to create such programs. The draft guidance sets out baseline criteria that EPA will use to evaluate State voluntary cleanup programs. This evaluation will be part of the negotiation of a Memorandum of Agreement (MOA), or planning document providing roles and responsibilities between EPA and the States for the cleanup of lower risk sites. For those sites included within the scope of the MOA, EPA will not exercise cost recovery authority and does not generally anticipate taking CERCLA removal or remedial actions at sites except under limited circumstances.
In addition, this draft guidance includes a draft site designation or screening process and proposes that this new process be used in conjunction with the guidance to designate sites as either Tier II (lower risk sites that are eligible for inclusion within the scope of an MOA concerning a State voluntary cleanup program) or Tier I (higher risk sites of the type that historically have been listed on the National Priorities List). Tier I sites are not eligible for inclusion within the scope of an MOA concerning a State voluntary cleanup program. The Agency believes this is a unique and valuable feature of the guidance because it will enable developers and other parties to use the process outlined to make Tier I and Tier II designations. Understanding the potential for Superfund involvement enables stakeholders to make more informed property cleanup, transfer and redevelopment decisions.
The guidance has been published in the Federal Register for review and comment. In conjunction with the Brownfields Initiative, EPA also authorized financial assistance to such voluntary cleanup programs. EPA is providing $10 million, earmarked in FY97 appropriations, to encourage the development or enhancement of State programs that encourage private parties to voluntarily undertake early protective cleanups of less seriously contaminated sites, thus accelerating their cleanup and their redevelopment.
Promoting Economic Redevelopment
EPA is continuing to promote redevelopment of abandoned and contaminated properties across the country that were once used for industrial and commercial purposes ("brownfields"). Brownfields sites exist in this country, affecting virtually every community in the nation. The Administration believes strongly that environmental protection, public health, and economic progress are inextricably linked. Rather than separate the challenges facing these communities, our brownfields initiative seeks to bring all parties to the table -- and to provide a framework for them to seek common ground on the whole range of challenges: environmental, economic, legal and financial. The EPA brownfields pilot grants are forming the basis for new and more effective partnerships. In many cases, city government environmental specialists are sitting down together with the city's economic development experts for the first time. Others are joining in -- businesses, local residents, community activists.
EPA's efforts have been accomplished through the Brownfields Action Agenda - an outline of specific actions the Agency is conducting. The initial Brownfields Action Agenda outlined four key areas of action for returning brownfields to productive reuse: 1) awarding Brownfields Assessment Demonstration Pilots; 2) building partnerships to all Brownfields stakeholders; 3) clarifying liability and cleanup issues; and 4) fostering local workforce development and job training initiatives. A new Action Agenda for fiscal years 1997 and 1998 is designed to further identify, strengthen, and improve the commitments EPA and its colleagues can make to brownfields.
The Brownfields Assessment Pilots form a major component of the Brownfields Action Agenda. EPA has committed to fund 115 assessment pilots to date at up to $200,000 each. We are also preparing to award a second-stage of brownfields pilots this year. The Brownfields Revolving Loan Fund (BRLF) Pilots are designed to enable eligible States, cities, towns and counties, Territories, and Indian Tribes to capitalize revolving loan funds to safely cleanup and sustainably reuse brownfields. EPA's goal is to select BRLF pilots that will serve as models for other communities across the nation. In the 1997 fiscal year, EPA's budget for brownfields includes $10 million to capitalize BRLFs. Only entities that have been awarded National or Regional Brownfields Assessment Demonstration Pilots by September 30, 1995, will be eligible to apply to EPA's BRLF pilot program. Therefore, up to 29 BRLF pilots may be awarded in FY 97. Fiscal year 1997 BRLF pilots will be funded at up to $350,000. The BRLF will be awarded through an evaluation process. Eligible entities will be required to demonstrate evidence of a need for cleanup funds, ability to manage a revolving loan fund, ability to ensure adequate cleanups, and a commitment to creative leveraging of EPA funds with public-private partnerships and matching funds/in-kind services.
Another facet of the Brownfields Initiative is also scheduled for implementation this year. The Brownfields Showcase Communities project is an attempt to focus Federal government attention on selected communities across the United States. Those communities selected through an application process will receive special technical, financial and targeted federal assistance to address issues of contaminated urban and rural properties.
EPA and fifteen other Federal agencies are sponsoring the Brownfields Showcase Communities project. Through a multi-agency panel, applications will be reviewed and 10 Showcase Communities will be selected in 1997. These communities will be models for Federal coordination and cooperation.
Finally, our recent work together to enact the Brownfields Tax Incentive fully demonstrates our shared commitment to responsible legislation on these issues. This is a 3-year tax incentive plan that will reduce the cost of cleaning up thousands of contaminated, abandoned sites in economically distressed areas. It is anticipated that this $1.5 billion tax incentive will leverage more than $6 billion in private funded cleanups at an estimated 14,000 brownfields.
SUPERFUND LEGISLATIVE REFORM PRINCIPLES
The Agency continues to implement the improvements to Superfund that have been made through Administrative Reforms. Throughout the course of the reauthorization process, we have heard stakeholders express their concerns and have taken the opportunity to address those concerns. We recognize, however, that there are areas of the law that could benefit from legislative provisions. Therefore, the Administration based its goals for Superfund legislative reform on the status of the current, reformed program.
Legislative reform must build upon the successes of the current Superfund program and the lessons learned through three rounds of Administrative Reform. We believe legislative reform must be targeted to address critical issues in need of a legislative solution. Our goals for legislative reform continue to be to: protect human health and the environment; maximize participation by responsible parties in the performance of cleanups; ensure effective State, Tribal and community involvement in decision making; and promote economic redevelopment or other beneficial reuse of sites, all in a manner that increases the pace of cleanups, improves program efficiency and decreases litigation and transaction costs, and which does not disrupt or delay ongoing progress.
Protection of Human Health, Welfare and the Environment
Any legislative changes addressing cleanup decisions must, as a baseline, continue to ensure that cleanups are protective of human health and the environment over the long term. Cleanups should also be cost-effective, and foster productive reuse of contaminated property, and restore ground water to beneficial uses, wherever practicable.
In order to facilitate these goals, the Administration supports treatment for those wastes that are highly toxic or highly mobile, in light of the continuing challenges in ensuring the long-term reliability of engineering and institutional controls, as well as the limitations that containment and institutional controls place on productive reuse or redevelopment of property. The Administration supports modifying the current mandate for permanence to emphasize long-term protection and reliability.
The Agency continues to believe that treatment of highly toxic or highly mobile waste offers advantages over containment or other measures. As a result, we are currently striving to implement these goals today, using treatment where necessary, at such sites as the Bayou Bonfuoca Site in Louisiana. At this site, EPA determined that incineration was necessary to treat creosote waste, including Benzo(a)pyrene, that had leaked into a bayou. The creosote mixture was so potent, that divers received second degree chemical burns from contact with the contaminated sediments. The contamination appeared to have killed all life in the bayou. Treatment was necessary at this site to permanently eliminate the threat from these materials.
Additionally, legislation should not alter our goal of restoring ground water to beneficial uses, wherever practicable. Over half of this nation's population relies on ground water as its source of drinking water. Superfund has raised consciousness about the need to prevent contamination of this resource by demonstrating the consequences -- financial, technological, and practical -- of contamination that threatens real people now and future generations. As a result, we believe that Maximum Contaminant Levels under the Safe Drinking Water Act or more stringent applicable State standards should be established as the cleanup standards for ground water whose beneficial use is, or is anticipated, to be a drinking water source, unless technically impracticable.
Under the current program, EPA is using "smart" ground water remediation to provide appropriate levels of protection at lower cost. In the early days of the program, we relied solely on extraction and treatment of ground water to achieve cleanup objectives. In 1995, 60% of our ground water cleanup decisions reflect extraction and treatment being used in conjunction with other techniques, such as bioremediation, underground treatment walls, or monitored natural attenuation, which is often used to reduce low levels of contaminants. In 1995, about 25% of Superfund ground water remedies included monitored natural attenuation of contamination. It is worth noting that our success in developing ground water cleanup policy is consistent and concurrent with ongoing developments in science and technology and it uses the flexibility afforded under current law. This flexibility conserves resources and should be retained in any future legislation.
Another important principle supported by the Administration requires the continued consideration of reasonably anticipated future land uses, based on consultation with the affected community, site owners, and others, in the process of selecting cleanup options. By involving the community in this manner, we can structure cleanups that not only protect human health and the environment, but also meet the needs of the local community.
Additionally, the Administration believes that cleanups should comply with the applicable substantive requirements of other Federal environmental laws and State environmental or facility siting laws applicable to cleanup activities. It is important to continue to protect these strong State and Federal interests, especially where these requirements directly relate to the cleanup activities being considered. However, the Administration does support some flexibility regarding requirements that have been traditionally referred to as "relevant and appropriate." As a result, the Administration supports removing the statutory requirement to comply with these requirements.
Finally, there are many components of Superfund cleanup provisions proposed by various parties that the Administration would strongly oppose. Chiefly among them are provisions that would mandate reopening of cleanup decisions; provisions that would fail to discourage contamination of currently uncontaminated land, ground water, or natural resources; provisions which would require prescriptive cost or risk assessment requirements; and most importantly, provisions which would delay cleanups or result in cleanups that are inadequately protective of human health, welfare, and environmental and natural resources.
Fairness And Reduced Transaction Costs
In discussing any proposed legislative changes to the Superfund liability scheme, it is imperative to retain the fundamental principle that those responsible for the contamination must pay for the cleanup. This has been the cornerstone of our ability to obtain as many cleanups as we have, and has left the Superfund trust fund available for truly abandoned sites and public health and environmental emergencies.
Within this bedrock principle, however, the Administration supports clearly defined exemptions or limitations on liability which reflect EPA's experience with Administrative Reforms. As a result, the Administration would support liability reform for certain generators or transporters of municipal solid waste, and for parties who sent less than 110 gallons or 200 pounds of hazardous waste. The government does not currently bring these parties into the system, but they have occasionally been pulled in by other parties, with expensive and unfortunate results.
EPA has continued its Administrative Reform policy of offering compensation for the "orphan share" (the contribution for responsibility attributable to insolvent and defunct parties) during every negotiation for long term cleanup and non-time-critical removal. The work we have done with orphan share compensation has significantly enhanced the fairness of the Superfund program. Although EPA does not need statutory authority to offer orphan share compensation, EPA supports legislation creating a separate mandatory spending account for orphan share, consistent with the President's Fiscal Year 1998 budget request, so that funds for orphan share do not compete with cleanup dollars or reduce the funding available for response actions.
One of the major benefits of our Administrative Reforms was the ability to experiment administratively with provisions of proposed Superfund laws through "pilots." Specifically, the consensus bill in the 103rd Congress provided for an allocation process used to assess liability and distribute orphan share funding. While the Administration originally supported these provisions, and continues to support a process to help resolve issues related to settling liability, EPA's experience with several allocation pilot projects has informed our position and demonstrated some of the serious drawbacks with a rigid and prescriptive process. As a result, the Administration currently supports the use of a flexible, non-prescriptive process that makes effective use of available orphan share funding to reduce transaction costs by promoting settlements and encouraging allocation of costs among settling parties.
We also support statutorily addressing the liability of generators and transporters of municipal solid waste. EPA and the Justice Department recently issued a new municipal liability policy. Preliminary comments are extremely favorable towards the policy, which provides the opportunity for expedited final settlements for municipal owners, and generators and transporters of municipal solid waste. The Administration would support statutory changes which are consistent with this new policy. In addition, we believe that we should address the issue of bona fide prospective purchasers in our efforts to make sure that we can cleanup and reuse brownfield properties.
Finally, I reiterate that any changes to the liability and enforcement provisions of Superfund must ensure that those who created the problems be held responsible for cleanup. Further, changes in the law must not compromise the availability of cleanup dollars or endanger the speed or thoroughness of site cleanups and our ability to accomplish the President's goal of completing 900 additional cleanups through the year 2000. Any exemptions or limitations on liability -- or use of Trust Fund money -- must be considered against the backdrop of these principles. Therefore, the Administration has consistently opposed, and continues to oppose site-based "carve outs" that relieve viable, responsible parties of their obligation to clean up sites.
Meaningful Community involvement
Through years of implementation of the program, EPA has determined that early and meaningful community involvement can increase the overall pace of cleanups. Though enhanced community involvement may add steps in the early portions of the cleanup process, this investment generally accelerates later cleanup stages, as all parties are informed and have had time to work through their concerns. EPA has learned the hard way that a decision process that alienates the people our cleanups are supposed to protect results in constant revisiting of decisions, not quicker cleanups.
We have also learned that we need a variety of tools and resources, and the flexibility to tailor the application of those tools and resources, to meet the particular needs of citizens at different sites. No two sites or communities are exactly alike. In some communities, citizens are disinterested in some large-scale NPL cleanups, and in other communities, citizens are keenly interested at some smaller scale cleanups. As a result, the Administration supports continued efforts to enhance community involvement and development and provision of information to communities, including the opportunity for formally established community advisory groups at Superfund sites.
Consistent with our experience, we support making Technical Assistance Grants (TAGs) available to citizens at non-NPL sites, in addition to NPL sites. Additionally, the Administration would like to continue to ensure direct input from citizens into the development of assumptions regarding reasonably anticipated land uses upon which cleanups are based. While we support processes which build consensus within communities, the achievement of consensus should never be the price of admission into the decision making process. We must always listen to the diversity of views among citizens affected by hazardous waste sites.
Given the importance of public health information, we also support the continued protection of the health of people in communities impacted by Superfund sites through efforts of public health assessments, health effects studies, and other public health activities prescribed by law. In addition, the Administration also supports ensuring that communities have access to information about releases of hazardous substances and other toxics.
Finally, the Administration is strongly opposed to any provisions in a new law that would impair meaningful community input and involvement, or would disrupt existing citizen advisory groups or use inappropriate, prescriptive membership requirements for such groups.
Enhanced State and tribal Efforts
In addition to the many changes and accomplishments of the Superfund program over the last four years, the context in which the program exists is also dramatically different. We recognize and support the continued growth of the State and Tribal regulated and voluntary programs; they have greatly expanded the number of hazardous waste sites cleaned up to protect human health and the environment. We fully support better coordination between federal agencies and the States and Tribes.
As a result, the Administration supports Superfund legislation that provides greater opportunities for States and Tribes to address a full range of hazardous waste sites for which they have the necessary response capacity. EPA will provide the financial and technical support needed to further improve existing programs. In order to do this, we support the use of flexible "partnership agreements" between EPA and States and Tribes, based upon demonstrated resources and capabilities, to enable all parties to work together to determine which sites should proceed under what authorities, and under whose lead, so that governmental resources are complementary, not duplicative.
Over the last four years, States, Tribes, and EPA have been implementing this process at many sites, and the results are encouraging. In general, States and Tribes have the primary role in the process of discovering new sites and making screening decisions about which sites warrant action. In comparison to just a few years ago, States now exert substantial control over not only which sites will be included on the National Priorities List, but also on the CERCLIS inventory. However, the more interesting story here is the tremendous variety of arrangements EPA and States and Tribes have worked out to address waste sites.
Because of the widely divergent status of Superfund programs at the State level, flexibility, as opposed to a "one-size-fits-all" approach, is crucial. We have seen the success of partnership agreements with such States as Minnesota and Washington, which have entered into Superfund program partnerships with EPA's Regional offices. As stated previously, these partnerships build upon a foundation of demonstrated State readiness, and provide clear State decision-making authority with, support, but minimal redundancy, from the Regions. Similar successes have been achieved in agreements with Federal Facilities, such as the agreement between EPA, the Department of Energy, and the State of Colorado at the Rocky Flats Superfund site.
When it comes to the role of States and Tribes, Superfund legislative reform must consider comprehensively the scope of the hazardous waste contamination problem Federal, State and Tribal programs are trying to address across this country and how we are succeeding today in our efforts to organize our collective resources to achieve more protective cleanups. Within this context, we must recognize that the retention of strong cleanup standards, enforcement authorities, and sufficient resources at the Federal level provides States and Tribes with resources critical to the effectiveness of their own programs. It is particularly vital, for example, that the Federal emergency prevention, preparedness, and response capabilities, which are looked to as a model, and for support the world over, remain vital and effective.
Within the context of the flexible partnership, there are, however, several State-related concepts that the Administration strongly opposes, including: limitations on the Federal ability to provide response or to enforce a response; preemption of State and Tribal cleanup standards; State and Tribal waivers of federal authority; a transfer of responsibilities to States or Tribes in a manner that would disrupt or delay cleanups or that would result in less protective cleanups; or default approvals of State or Tribal programs.
Finally, the Administration strongly opposes limitations on EPA's authority to list sites on the National Priorities List, including a cap on further listings on the NPL or premature or "default" deletion of sites from the NPL.
The Brownfields Economic Redevelopment Initiative has continued to achieve much success. The continuing value of the Brownfields Initiative is its evolution and promise for the future. To build upon these successful first steps and launch others, we must not lose sight of our overall goal to revitalize communities. Future efforts under the Brownfields Economic Redevelopment Initiative must be viewed as an important component of any Superfund legislative reform strategy. With the breadth and variety of activities and stakeholders converging on the brownfields issue, we have tried to establish a framework that articulates a complete and comprehensive brownfields program. It is against this framework that we will measure proposals regarding the brownfields.
Brownfields legislative reforms should continue the progress made under EPA's administrative reforms and address the full range of Brownfield issues including: technical assistance funding for brownfields identification, assessment, and reuse planning; cooperative agreement funding to capitalize revolving loan funds for brownfields cleanup; support for State development of voluntary cleanup programs; liability protection for bona fide prospective purchasers and innocent landowners of contaminated property; support for mechanisms for partnering with Federal, State, local and tribal governments, and other non-governmental entities to address Brownfields; and support and long-term planning for fostering training and workforce development.
In summary, the above discussion represents the Administration's position regarding issues facing the current Superfund program. These Principles highlight some of the major elements we believe should be addressed in order to achieve consensus based, responsible Superfund legislative reform. Other issues addressed in the Administration's Legislative Reform Principles include Natural Resource Damages issues and Federal Facility Issues. I hope that we will once again work together towards crafting a Superfund bill that embraces these principles so that we might give the American people a Superfund law that is fully protective and delivers on our commitment to achieve Superfund reform in the 105th Congress.
THE SUPERFUND CLEANUP ACCELERATION ACT OF 1997
The Administration has evaluated the Chairman's Mark of S.8, the Superfund Cleanup Acceleration Act of 1997, against the same criteria which have guided the Administration's Superfund Legislative Reform Principles.
I was pleased to see that since the early introduction of S.8, several changes have been made which fall within our Principles. However, the Clinton Administration strongly opposes the Chairman's Mark of S.8 in its current form. Given the short amount of time we have had to review the most recent draft, I have tried to identify the most important concerns below.
The Administration's most serious concerns are that: 1) the bill may fail to ensure long-term protection of human health and the environment; 2) it will slow down cleanups; 3) it lets polluters off the hook and shifts costs to taxpayers and consumers; and 4) it provides incomplete support for communities, States, and Tribes, and economic redevelopment. But perhaps more fundamentally, the Chairman's Mark of S.8 does not embody the Administration's Superfund Legislative Reform Principles, nor does it fully reflect the current status of the Superfund program.
Remedies under the Chairman's mark of S.8 would not assure protection of human health and the environment over the long term because highly toxic, highly mobile waste would probably not be treated, sources of ground water contamination would not be required to be contained and reduced, and levels necessary for protection might be waived on the basis of cost.
No Effective Treatment to Ensure Long-Term Reliability
While the Chairman's mark reflects bipartisan agreements with respect to a number of issues, and significant movement on others, the bill still lacks, what we believe to be, the provisions necessary to ensure that remedies will result in long-term protection of human health and the environment. While the Chairman's mark contains a new preference for treatment, a substantial burden of proof must be met before the preference can even be applied: a site-specific analysis must demonstrate that the material 1) cannot be reliably contained, and, 2) is highly toxic, and 3) is highly mobile, and, 4) that there is a reasonable probability that actual exposure will occur. In addition, the bill exempts landfills and mining sites from the preference.
While bills in the 103rd Congress contained similar provisions, they were exceptions to a requirement to treat hot spots. As reflected in the Chairman's mark, treatment would probably never even be considered for many sites, that present a multitude of problems, some of which are amenable to treatment. Finally, the preference is neutralized by a conflicting provision, which states that institutional controls and engineering controls are to be considered on an equal basis to all other remedial actions, regardless of the hazard of the material in question.
As you know, the Administration's legislative reform principles support the idea of eliminating the mandate to utilize permanent solutions and treatment to the maximum extent practicable, in exchange for a new emphasis on long-term reliability, and retention of the preference for treatment of highly toxic or highly mobile waste. We believe such changes would eliminate the potential for "treatment for treatment's sake," but retain an appropriate presumption that materials posing the "principal threats" at sites due to the intrinsic hazards posed by their toxicity or mobility should be treated, unless impracticable.
Treatment of highly toxic or highly mobile wastes helps ensure that any materials managed onsite over the long-term would not pose a serious threat to human health and the environment. And obviously, the more contaminated material that remains onsite and the higher the potential risks it poses, the less likely productive reuse of that property, or significant portions of that property.
Ground Water Not Adequately Protected
The ground water provisions of the Chairman's mark reflects substantial movement from S.8 as proposed. I am pleased to see that restoration of contaminated ground water to beneficial uses, unless technically impracticable, has been embraced, as called for by the Administration's principles. I am concerned, however, that two critical provisions necessary to ensure protection in the case where complete restoration is technically impracticable are notably missing -- a requirement to contain and reduce sources of pollution that cannot be eliminated entirely and may continue to release pollutants to ground or surface water, and a requirement to contain the dissolved plume.
One issue on which there a high degree of consensus is that restoration of an aquifer or part of an aquifer cannot occur unless new contamination is prevented from entering the ground water. Given that a five-gallon bucket of the commonly used solvent trichloroethylene (TCE) can contaminate 800 million gallons of water at levels above drinking water standards, leading to enormous cleanup costs, it is imperative to control and minimize such sources. That is why the ground water policies the Agency has issued under its Administrative Reform efforts have called for early control of both surface and subsurface sources as critical to successful ground water remediation efforts. Surface sources include lagoons or landfills which may be leaching contaminants into ground water. Effective control of such sources is one of the components critical to making monitored natural attenuation a viable cleanup option for some ground waters.
Dense and light non-aqueous phases liquids, (DNAPLs and LNAPLs) are good examples of subsurface sources which can pose a greater threat to ground water over time because of the potential for the contaminants to migrate and accumulate in less accessible zones. The diverse panel of experts the National Research Council drew together to write "Alternatives for Ground Water Cleanup" in 1994 advocated that "measures to remove contaminants from zones where the release occurred and to contain contaminants that cannot be removed should be taken as soon as possible after the contamination occurs." Requirements for such measures have appeared in numerous bills in the past. The absence of a minimum requirement in the Chairman's mark to control and reduce sources in cases where full restoration is technically impracticable, and to contain the plume, removes an assurance citizens have come to expect and will cause needless debate over what should be codified as a best practice. Waiver from Protection?
Of continuing concern are conflicting provisions in the Chairman's mark which seem to expand the "technical impracticability" waiver from current law to permit not only applicable requirements of other laws to be waived on the basis of cost, among other factors, but also cleanup levels established as necessary to protect human health and the environment at a site where applicable requirements are not available. This waiver appears to be in conflict with provisions which stipulate that where protective standards are waived, the President shall select a "technically practicable" remedial action that "protects human health" and most closely achieves the protectiveness goals. The conflict in the language is confusing. We cannot afford any confusion over the fact that protection of human health and the environment is a fundamental mandate that must be met in all cases without exception.
In addition, by prescribing numeric risk goals, the bill would lock the Agency into current methods of expressing and measuring risk, which are in transition as the science is changing. Under the Agency's new cancer guidelines, there will be decreasing reliance on linear models which underlie the "risk range" Superfund currently uses for managing risks, and new units of measures, including "margin of exposure" will begin to be used. Protectiveness goals are best dealt with qualitatively, or left to the Agency to address in regulations or guidance.
The bill unnecessarily codifies current practice regarding how determinations of protectiveness are made, and leaves out the "point of departure" used to establish "safe" levels of carcinogens risks within the risk range of 10-4 and 10-6, by not explicitly addressing sensitive sub-populations, and by inappropriately linking the hazard index to threshold carcinogens, which we only use for noncarcinogens.
THE CHAIRMAN'S MARK WOULD DELAY CLEANUP
One issue upon which I think we would all agree is that the pace of cleanups should not be derailed. We are currently showing tremendous progress in addressing the current sites on the NPL, and strongly oppose any provisions that could negatively affect that progress.
Mandated ROD Reviews
I appreciate that the Chairman's Mark attempts to capture the "spirit" and features of the Agency's "Remedy Update" Administrative Reform, than did the extremely onerous remedy review provisions in the original S.8. Under current law, remedy updates have yielded impressive results, however I remain concerned that the regimented mandate the Chairman's Mark contains will still result in delays and disruptions to the program that are at odds with the Administration's commitment to speed the pace of cleanup. The artificial deadlines on petition submission and Agency review, the mandated role of the remedy review board, and the implied comment process all promise to transform the current administrative process that is yielding $340 million in cost savings in FY'96 and another $280 million estimated to date for FY'97 into a resource-intensive diversion from cleanup.
While the remedy review provisions initially appear to provide discretion to the Agency in its reviews, this language is illusory. The Chairman's Mark requires the Agency to prioritize petitions, which in turn requires an evaluation of each petition against eight factors. As a result, the discretion provided in one portion of the provisions is effectively negated in another.
Based on our experience with the Remedy Update Reform and the National Remedy Review Board, our preliminary analysis indicates that the task of implementing the 180 day petition review and prioritization process could consume approximately 70% of our workforce of remedial project managers and policy experts for over a year, diverting attention from moving projects to completion. Keep in mind that remedy changes can precipitate changes in consent decrees and interagency agreements, which will also take time and divert attention away from cleanup - increasing, not reducing, transaction costs. I agree that appropriate remedy changes should be made, but I urge retention of the flexibility the current administrative process affords the Agency to balance "rework" of old decisions with forward progress at sites.
Prescriptive Remedy Review Board
The Remedy Review Board would certainly have a dramatically expanded workload under the Chairman's Mark. In addition to its role in reviewing past decisions, the Board would continue its efforts begun under the Administrative Reforms to review proposed remedial action decisions. Again, I am pleased with the endorsement of the Remedy Review Board reflected in its codification in the Chairman's Mark, but am concerned that some unhelpful prescription has been picked up in the translation. Specifically, the Chairman's Mark requires that fully one-third of all draft decisions the Board should be reviewed in any given year, a dramatic increase in workload from the approximately 10% of decisions the Board plans to review under its current criteria. The Chairman's Mark also adds a notice and comment process relating to the Board's recommendations to the opportunity to comment on the official Proposed Plan the public already has under current law, adding significant delay.
Overly Prescriptive Risk Assessments
The Chairman's Mark retains some troublesome features of S.8's risk assessment provisions. Most notably, the over broad requirement for site-specific chemical data simply makes no sense. Toxicity, the primary type of chemical-specific information used in risk assessment, does not generally change from site to site. In addition, toxicity studies cost hundreds of thousands of dollars, and several years to conduct. Peer-reviewed Agency toxicity criteria should be used along with site-specific exposure information. Also, the requirement for "central, upper-bound and lower bound estimates" of risk for each facility are inappropriate for site-specific risk assessments, but rather apply to chemical-specific risk assessments like those found in IRIS or to be performed under the Safe Drinking Water Act.
Site-specific risk assessment in Superfund use Agency toxicity criteria along with site-specific measures of exposure. Superfund relies on a high-end estimate of exposure (between a central and upper-bound estimate) that neither minimizes nor exaggerates risks posed by contaminants at the site. This estimate, along with consideration of sensitive sub-populations, forms the basis for making cleanup decisions that will ensure protection of human health. Finally, the requirement for risk assessment to specify "each uncertainty identified in the process . . . and research that would assist in resolving the uncertainty" would lead to paralysis by analysis. Only significant uncertainties need to be identified to better inform the risk management decision.
the chairman's mark has broad liability exemptions
While we are encouraged by the limited focus on parties whose liability we believe should be addressed, such as generators of municipal solid waste, de micromis generators, recyclers, and municipal owners of co-disposal landfills, the Administration continues to have several major concerns regarding many of the liability provisions of the Chairman's Mark of S.8.
The revised legislation continues to exempt or limit the liability of parties that are viable and liable and should remain responsible for cleanup of their sites. As an example, the Chairman's Mark exempts generators and transporters of any waste, whether municipal solid waste (MSW) or extremely hazardous waste, found at a "co-disposal" site. This provision exempts parties regardless of the hazard associated with their waste or the impact that waste may have on the cleanup. At the Delaware Sand and Gravel Site, for example, the Chairman's Mark likely would exempt major industrial generators of hazardous substances merely because they chose to dispose of their hazardous waste at a site which accepted MSW.
The Chairman's Mark also continues to limit the liability of private owners and operators of "co-disposal" sites -- a position EPA has never endorsed. Under the terms of the Chairman's Mark, major waste management companies that are liable, viable and understand the costs of this business, would be relieved of their liability. At many sites, this could mean that cleanup costs will be shifted to the Fund through the revised S.8's orphan share funding provisions. In fact, as the Chairman's Mark is currently written, the collective "co-disposal" provisions result in a de facto co-disposal carve out, which we believe is inconsistent with good public policy.
The co-disposal provisions raise other issues of concern. Under the Chairman's Mark, a "co-disposal" landfill is one which contains "predominantly" municipal solid waste. The term "predominantly" is not defined. The absence of a definition is certain to encourage litigation. Further, where a site continues to receive municipal solid waste, its status may change over time. These new and vague terms are fertile ground for litigation.
The small business exemption found in the Chairman's Mark is another example of an exemption that is broader than is needed to address the intended parties of concern. This provision, probably intended to exempt only those very small contributors of waste which we all agree should not be forced to incur the transaction costs associated with Superfund liability, goes well beyond exempting these contributors. Instead of blanketly exempting these parties, without regard to their contribution or company-specific circumstances, we support the use of other tools to address the liability of these parties, including a litigation moratorium on small businesses with an ability-to-pay problem; and exemption for small businesses who are generators or transporters of municipal solid waste; and penalties to discourage frivolous lawsuits against small businesses.
Further troubling aspects of the liability exemptions and limitations in the Chairman's Mark include the problem that they apply prospectively - effectively eliminating the incentive for sound waste management practices. Also, the liability provisions apply only to sites on the NPL, ignoring certain parties such as residential homeowners and small volume contributors at non-NPL sites that would still be liable for their wastes. Finally, the liability provisions do not eliminate contribution litigation against the parties most in need of such protection, such as the residential homeowners and small volume contributors described above. This violates the Administration's Principles, which seek to reduce litigation and transaction costs.
In addition, the liability exemptions and limitations in the Chairman's Mark, when read together with the Orphan Share Funding provisions, would create an enormous obligation for the Trust Fund and could divert funds from cleanups. Because orphan share funding is not provided from a source separate from cleanup dollars, cleanups will be competing for the same dollars as the Orphan Share claimants. To make matters worse, the Chairman's Mark provides that orphan share funding is an entitlement. As such, claims for orphan share funding would be legally superior to other claims against the Fund, including the costs of cleanups.
The Chairman's Mark also requires EPA to reimburse responsible parties for costs that exceed their allocated share -- this includes in many cases, costs and work that parties have already agreed to perform. These provisions for "Fund Contribution" present several problems. First, they require EPA to repay recalcitrant parties working under an order in the same manner we would repay a cooperative party working under a consent decree. This would be a windfall to the recalcitrant parties. Second, these provisions require EPA to pay costs within 1 year. If large numbers of applications are received at once, this could cause funding shortfalls and resource drains resulting in major cleanup delays. Third, final settlements will be reopened and parties who have previously incurred the costs of negotiations will have to proceed through an allocation to determine their share of liability for the purpose of reimbursement. Such reconsideration of liability effectively duplicates transaction costs previously incurred.
Narrow and Unworkable "Illegal Activity" Exception
The Chairman's Mark attempts to prevent a person from claiming a liability exemption where a court determines, within the applicable statute of limitations, that the person violated a Federal or State law relating to the hazardous substances at issue. Because Superfund addresses the results of acts that frequently took place many decades before cleanup, and at a time when applicable laws may have been unclear, proof of illegal or culpable behavior would be impossible at most sites, because the bill's language requires court action at the time of the activity.
The Allocation Process is Too Broad and Prescriptive
Though the Chairman's Mark simplified the allocations procedures and made clear that EPA can require a potentially responsible party to perform work at a site, the Administration continues to have a number of concerns with the allocations provisions. First, the large number of sites subject to a mandatory allocation will result in extraordinary allocation costs, will increase transaction costs, and will slow the settlement process.
The Chairman's Mark requires formal and prescriptive allocations at all multi-party sites on the NPL where post-enactment costs are outstanding (over 1,200 sites), even where the parties are exempt from liability under the revised S.8. In addition, under the Chairman's Mark, the allocator alone makes the determination as to which parties not already settled out are to be considered exempt or liable.
These provisions preclude EPA from protecting small volume contributors or parties with an inability to pay, and thus from protecting them from the transaction costs associated with an allocation. Finally, the revised S.8 allows no means for the allocation process to be set aside if some parties wish to settle, rather than proceed with the allocation. This allows just one party who is responsible for 5% of the costs to hold other parties hostage, even in cases where a settlement could be easily reached.
In 1994, as part of Administrative Reforms, EPA implemented an allocations pilot project at 12 Superfund sites. Although the pilots are not yet complete, much has been learned about the strengths and weaknesses of the allocations process. Based on this experience, EPA cannot support a mandatory allocations process at every multi-party site. For example, some responsible parties do not want to use an allocation process, even where EPA has offered orphan share compensation. Based on our experience with allocating and our allocation pilot projects, we believe that legislation should reduce transaction costs by promoting settlements and encouraging contribution allocation of costs among settling parties through a flexible, nonprescriptive process that makes effective use of available "orphan share" funding.
Other Liability Concerns
The Chairman's Mark of S.8 precludes federal or administrative enforcement action at any facility that is subject to a State remedial action plan. The revised S.8 further requires that where a facility is not subject to a State remedial action plan, that is, in cases where the State is not taking the lead, all CERCLA section 106 orders issued by the U.S. relating to that facility cease to have effect after 90 days if the State does not affirmatively concur on the order. This would put a huge burden on the States, creates a duplicative system, and could disrupt cleanups. Each of these provisions inappropriately impose restrictions on the ability of the U.S. to enforce federal law, and to act to protect public health and the environment.
Finally, we remain concerned with the very broad exemptions, and few limitations, placed on the liability of cleanup contractors.
The chairman's mark provides general support for Communities
The Administration supports many of the changes made to the Community Participation Title of the Chairman's Mark of S.8, which generally improves public participation in the Superfund decision-making process. However, the Administration is concerned with several omissions from the Title.
Lack of Public Health Support
The Chairman's Mark of S.8 fails to provide adequate support for public health concerns. The Administration supports the continued protection of human health of communities effected by Superfund sites through efforts of public health assessments, health effects studies, and other public health activities prescribed by law. Prior legislative proposals have provided transparency to the public regarding many of the Agency for Toxic Substances and Diseases Registry's (ATSDR's) responsibilities at Superfund sites.
The Chairman's Mark Provides Incomplete support for States
One area in which we seem to agree is our desire to provide greater involvement for States and Tribes in the Superfund program. While we support enhanced flexibility in accomplishing this goal, the provisions in the Chairman's Mark fail to ensure that authorities are transferred in a responsible manner. We do, however support the new provisions which allow States to request removal of sites from the NPL, with an appropriate role for EPA in responding to such a request.
Problematic State Delegation and Authorization Processes
The Chairman's Mark of S.8 provides a confusing array of opportunities for States to implement the Superfund program, including authorization, expedited authorization, delegation, and limited delegation. The Chairman's Mark may also make all of these opportunities unnecessary, because of provisions in the voluntary cleanup portion of the bill that seem to circumvent most requirements at Superfund sites, as discussed below. We believe that any transfer of responsibility should be accomplished in a responsible manner, taking into account individual State program characteristics, and should provide appropriate reviewable criteria as part of the transfer process. While the Administrator may review appropriate criteria as a part of the authorization process, we are extremely troubled by the criteria relating to expedited authorization.
Instead of relying on criteria which relate to the capability of a State to undertake Superfund cleanups, the limited criteria for expedited cleanups provide for self-certification and relate primarily to cosmetic aspects of State programs, such as whether the total number of employees in the State program exceeds 100, whether the length of time the State program has been in effect exceeds ten years, or whether the number of response actions taken by the State program exceeds 200.
While these criteria may provide some insight into the State program, they do not justify the conclusive presumption of capability in the Chairman's Mark. For example, these facts provide no information about the capabilities of the State to conduct large scale Superfund site cleanups, the types of cleanups that have been performed, or even whether those cleanups were successful and to what degree. Given the ease of meeting the criteria required to receive expedited authorization, it is unlikely that a State would ever pursue more meaningful delegation or full authorization agreements with EPA.
We continue to believe, consistent with our Principles, that the best manner in which to transfer responsibility to the States is through a process which identifies a workable division of labor between states and EPA. Through this process, we can ensure protective cleanups for all Americans by allowing State and Federal programs to utilize their strengths where needed, without resorting to a hasty transfer of responsibilities or a cookie-cutter, one-size-fits-all approach.
Transfer of Responsibility is Approved by Default and Limits
Additionally, we remain concerned with the default approval process set out in the Chairman's Mark. With regard to delegations, the Chairman's Mark provides automatic approval of a State application if the Administrator does not approve or disapprove the application in a specified time frame. Similar short time frames also apply to applications for expedited authorization, resulting in permanent approvals without regard to ability, and with little accountability after the decision or lack of a decision. As a result, the Administrator, and any other person, lose all opportunity to challenge the certification in a judicial or administrative proceeding.
Even with the limited exceptions or extensions, the default approvals of State programs could have unintended consequences, and could even lead to a lack of protection of public health and the environment in cases where a State is automatically approved to take over a site because of the default provisions, but does not currently have the resources available to devote to the particular site.
Finally, the Chairman's Mark provides for no public notice or comment on a proposed approval or disapproval of a State application to take over the program. In the case of the Chairman's Mark, where the decision as to the lead regulatory agency is made on a site-specific basis, this is very troubling. In many cases, the public has very strong views about which agency is best suited to oversee the cleanup. The public is also barred from taking civil action against any person for any matter that has been transferred.
Limiting Ability to Respond to Emergency Removals
The Chairman's Mark requires EPA to give a State 48 hours notice before EPA can take action to perform emergency removal actions at non-Federal listed facilities, unless EPA determines that a public health or environmental emergency exists, or EPA determines that the State has failed to act within a reasonable period of time. Without regard to the vague terminology of the exceptions, even in situations that arguably might not meet the definitions of public health or environmental emergencies, 48 hours in the life of an emergency removal action can sometimes be an eternity. Within that timeframe, contamination can easily spread, causing increased cleanup costs and durations. Though the provisions allow EPA to act in circumstances where EPA determines that the State has unreasonably delayed its response, any such delay can result in disrupted cleanups. These provisions, in concert with unrealistic delegation time frames, could severely limit the emergency response system which has been so successful in responding to chemical spills, fires, and other emergencies.
Other State Issues
Besides the issues listed above, there are other potential problems with the provisions of the Chairman's Mark. For example, the new State cost share requirements appear to add significant costs to the Trust Fund by limiting a State's responsibility for operation and maintenance costs to, at most, 10%. Finally, the Chairman's Mark provides overly generous incentives for State-managed cost recoveries, which may not adequately recognize the need to utilize recovered monies to replenish the Superfund Trust Fund.
The Chairman's Mark Fails to adequately Promote and Enhance
One of the most important aspects of any Superfund legislation is its ability to promote and enhance economic redevelopment at Superfund sites. Because of this, EPA is very encouraged to see the inclusion of Brownfields provisions, as well as voluntary cleanup program provisions, within the Chairman's Mark. However, in reviewing the revisions to these provisions, concerns remain.
Brownfields Grants are Limited
Although the Chairman's Mark would establish grant programs for both brownfields site characterization and assessment and to capitalize revolving loan funds for brownfields site response actions, the funding authorization levels do not reflect the President's Fiscal Year 1998 budget request. As such, these new grant programs will be substantially under funded and fail to provide the opportunity for many communities to benefit from brownfields assessment and cleanup. Among the other elements of the draft which work against communities, is the limitation on funding per year. This provision will restrict and inhibit grant recipients from efficiently managing and benefiting from the grant itself.
The revised bill also retains onerous criteria for grant approval and grant application ranking that will prove difficult, in not impossible, to implement. These requirements will also work to the detriment of communities. In many cases, the information requested as part of the application process may not be available until after the brownfields processes of site investigation and assessment are completed. Similarly, ranking criteria requests call for information that simply cannot be forecast until cleanup at a brownfield site is completed. In addition, the bill excludes States from the list of eligible recipients for brownfields characterization grants. EPA's experience with the Brownfields Pilot Program has taught us that in the case of smaller communities, it may make more sense and be more efficient to provide the grants directly to States.
Voluntary Cleanup Program Concerns
The Administration is opposed to provisions in the Chairman's Mark regarding voluntary cleanup. Title I of the bill clearly undermines the need for States to pursue program authorization or delegation under Title II. The voluntary cleanup program is not designed to be, nor should it become, the primary vehicle for hazardous waste site cleanup in the United States. Under the Title I provisions, the elements of a qualifying State voluntary response program are only required if assistance is being sought. The bill should make clear that the Agency determines the adequacy of a state voluntary cleanup program.
A State voluntary cleanup program, as envisioned by the Agency, is one that serves as an alternative to conventional CERCLA or State Superfund-like enforcement approaches for cleaning up those sites which generally pose lower risk. It should not include higher risk sites of the type that historically have been listed on the NPL. The Chairman's Mark explicitly includes such sites as eligible for cleanup under voluntary programs and provides those and other sites a shield against federal enforcement and many other current statutory requirements. Title I allows States to use "remedial action plans" as a shield against Federal and citizen enforcement. There is no link between a "remedial action plan" and a "qualifying" State voluntary cleanup program.
It should be clear that progress toward the development and enhancement of State voluntary programs is a condition of funding under this program. Without such a requirement, the five-year authorization for voluntary programs, which under the revised S. 8, allows States to receive over one million dollars during this period, may be treated as an entitlement program by States.
The Administration remains opposed to the provisions in the Chairman's Mark that would severely limit EPA authority to exercise enforcement where there is a release of hazardous substances, whenever a State remedial action plan has been prepared, whether under a voluntary response program, or any other State program. Under the Chairman's Mark, the mere existence of such a cleanup plan eliminates any Federal enforcement authority - even where there may be an imminent and substantial endangerment to human health and the environment. This compromise of public protection is alarming. Moreover, the new notification requirements with 48-hour time limitations seriously compromise EPA's ability to protect public health, welfare and the environment. These notification requirements will require the Agency to focus time and resources on administrative determinations, rather than on protecting public health and the environment in emergency situations. While EPA is burdened with these administrative requirements, the public may be unnecessarily exposed to substantial threats.
Finally, the level of community involvement provided by the Chairman's Mark is inadequate. The revised bill limits site specific community involvement to an "adequate opportunity." Unlike the current practices of EPA, DOD, DOE, and some States, this does not guarantee participation in all levels of the cleanup process, nor does it guarantee participation in determinations regarding end uses of the property. Coupled with the preclusion of citizen suits at all sites subject to a State remedial action plan, this limitation could result in shutting out citizens from decisions that affect their health and environment.
The problems discussed above are not a complete list of problems in the Chairman's Mark of S.8. The revised bill significantly restricts restoration of natural resources injured as a result of hazardous waste contamination. Further, the revised bill prematurely limits Federal involvement in the effort to cleanup hazardous waste sites by mandating that only a limited number of sites may be added to the National Priorities List (NPL) over the next several years. EPA estimates that hundreds of sites currently meet the eligibility criteria for NPL. Without adequate Federal involvement, these sites would become the responsibility of State and local governments that may not have the resources to address them.
In light of the aforementioned concerns, the Clinton Administration strongly opposes the Chairman's Mark of S.8 in its current form.
However, we look forward to returning to a bipartisan process of legislative negotiations in which to resolve the Administration's concerns as quickly as possible so that responsible Superfund reform legislation can be enacted in the 105th Congress.
Mr. Chairman, thank you for this opportunity to address the Committee. Now I will be happy to answer any questions you or the other Members may have.