STATEMENT OF CAROL M. BROWNER
CAROL M. BROWNER
U.S. ENVIRONMENTAL PROTECTION AGENCY
SUBCOMMITTEE ON WATER RESOURCES AND ENVIRONMENT
U.S. HOUSE OF REPRESENTATIVES
OCTOBER 29, 1997
Good morning, 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.
At the outset, I believe it is important to recall that Superfund's mission is dedicated to cleaning up our nation's hazardous waste sites. For this reason, Superfund in an important and necessary program. 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. Hundreds of drinking water wells across the country have been shut down due to contamination. ATSDR studies show a variety of health effects 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. These efforts provide the basis for targeting cleanups to protect public health and the environment, and show the need for a strong Superfund program.
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. In order to enact such a consensus bill, legislation must reflect the current, fundamentally improved 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the need to evaluate statutory reform from the perspective of the Superfund program of today, not on the basis of out of date problems that are now resolved. The Administration wants to work with the committee to develop bipartisan Superfund reform legislation in the 105th Congress that builds upon the accomplishments of today's Superfund program.
As we continue to implement our Administrative reforms, we continue to appreciate the flexibility this administrative approach affords us to improve the Superfund program. 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 Congress 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.
The Administration began this process ready to work with both your Committee and the Commerce Committee to craft Superfund reform legislation that could attract broad consensus support. Unfortunately, you only invited the Administration to participate in drafting your bill by providing very limited technical assistance, and not as a negotiating partner. As a result, the Administration was unable to participate in the process needed to meet our goals and deliver on our shared commitment to achieve responsible Superfund reform in the 105th Congress.
In discussing your draft bill, I would like to begin by recognizing the many improvements over last year's House Majority Bill, H.R. 2500. We are encouraged by your movement away from troublesome issues, such as "co-disposal" site carveouts. Unfortunately, many significant portions of the bill still do not reflect the current state of the program and the Administration's Principles, and are thus cause for serious concern.
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 your Superfund reform bill, which requires additional changes to meet the 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 that Congress did not provide the 1st year of the President's request for additional appropriated funds to address the backlog of Superfund sites that are currently awaiting cleanup. We are troubled by recent Congressional comments reflecting a desire to use these additional funds for liability relief, instead of the cleanup of the current backlog of Superfund sites. Because these sites are ready for cleanup today, many communities will have to continue to wait for cleanups in their neighborhoods, even though the only thing preventing us from starting cleanup is the 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 construction at 498 sites on the National Priorities List as of September 30, 1997, and more than 500 additional sites 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, to date, 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. In FY'96, we offered orphan share compensation of over $57 million to responsible parties willing to negotiate long-term cleanup settlements, and continued the process in FY'97 at every eligible site. Finally, cleanup costs are decreasing due to 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 States 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 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 continues to implement a number of administrative reforms that promote technologically and scientifically sound, cost-effective and appropriately consistent cleanups. 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 human health and environmental protection, and the current pace of the program.
Increasing the Pace of Cleanups
The completion of 498 Superfund toxic waste site cleanups (as of September 30, 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 paying for more than 70% of long-term cleanups, thereby conserving the Superfund trust fund for sites for which there are no viable 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 where there is an orphan share attributable to insolvent or defunct parties. The orphan share policy has encouraged settlement, rather than litigation, and enhances the fairness and equity of settlements. In FY'96, the Agency offered over $57 million in orphan share compensation to potential settling parties across the United States, and continued that practice this past fiscal 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 until the site is cleaned up. Our "consensus-based" approach to the remedy selection process continues to empower local citizens and other stakeholders 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, thereby reducing uncertainty and promoting 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 will only take CERCLA removal or remedial actions at sites under limited circumstances.
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, in FY97 funding, 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 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 working with the city's economic development experts for the first time. Others are also joining in -- businesses, local residents, and 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 included $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 could 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.
In addition, the Brownfields Showcase Communities project focuses 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. 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 estimated that this $.8 billion tax incentive will leverage more than $4 billion in private funded cleanups at an estimated 14,000 brownfields.
SUPERFUND LEGISLATIVE REFORM PRINCIPLES
The Agency continues to implement Superfund improvements through Administrative Reforms. Throughout the course of the reauthorization process, the Clinton Administration has heard stakeholders express their concerns and we have addressed many of 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 highly toxic or highly mobile wastes, while recognizing 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 statutory cleanup 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 people now, as well as 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 almost 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. Our success in developing ground water cleanup policy is consistent and concurrent with ongoing developments in science and technology and 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. 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 clean up as many sites 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 that reflect EPA's experience with Administrative Reforms. As a result, the Administration supports 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 occasionally they have 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 demonstrated some of the serious drawbacks of 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. The proposed policy provides the opportunity for expedited final settlements for municipal owners, and generators and transporters of municipal solid waste. The Administration would support statutory changes consistent with the final policy. In addition, we believe that we should address the issue of bona fide prospective purchasers in our efforts to clean up 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 by 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 are exactly alike nor is the level of community interest in the site's cleanup. 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, 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
The Administration recognizes and supports the continued growth of State and Tribal regulatory and voluntary programs that have greatly expanded the number of hazardous waste sites cleaned up. 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. These agreements will enable EPA, States, and Tribes to work together to determine which sites should proceed under what authorities, and under whose lead, so that governmental resources are used in a complementary, not duplicative, manner.
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 discovering new sites and making screening decisions about which sites warrant action. In contrast 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 developed to address waste sites.
Because of the wide range 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, that 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 from the Regions.
These successes are now being documented by others outside the Agency. The Government Accounting Office (GAO), in a recent April 1997 report examining EPA-State relationships, found that "faced with both limited state and federal resources and a growing number of hazardous waste sites, Washington, Minnesota, and Wisconsin have established clear understandings about a division of responsibilities with their respective EPA regions to clean up sites. Officials from both the regions and states agree that they now use their resources more efficiently as a result. In particular, they agree that the arrangements have minimized the duplication of effort, allowed federal and state authorities to address more sites, and improved the accountability for the site cleanups." 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 comprehensively consider 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 in our efforts to organize our collective resources to achieve more protective cleanups. 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 success 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 considerable success. 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 involved with the brownfields issue, we have tried to establish a framework that articulates a comprehensive brownfields program.
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, 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 Administration has evaluated your bill, H.R. 2727, against the same criteria that guided the Administration's Superfund Legislative Reform Principles.
Again, I was pleased to see that since the introduction of H.R. 2500 last year, changes have been made to several provisions to conform them with our Legislative Principles. However, the Clinton Administration strongly opposes your bill in its current form. Given the short amount of time we have had to review the most recent the bill, 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 will increase transaction costs and litigation, and will exempt many parties who should pay for cleanup; and 4) it provides incomplete support for communities, States, and Tribes, and for economic redevelopment. But perhaps more fundamentally, the draft bill does not embody the Administration's Superfund Legislative Reform Principles, nor does it fully reflect the current status of the Superfund program. However, the Administration remains ready to work with the committee to develop the broad based consensus needed to enact a bipartisan Superfund reform bill in the 105th Congress.
The draft bill shows improvement in the selection of remedies compared to previous bills. One such improvement is the addition of objectives for remedial action which capture many of the Administration's Principles, including making contaminated property available for beneficial use, and returning contaminated water resources to beneficial uses. However, we are concerned that bill is inadequate to accomplish those objectives. We are concerned that remedies selected under H.R. 2727 would not be able to assure protection of human health and the environment over the long term because highly toxic, highly mobile waste would probably not be treated in many situations, and because sources of ground water contamination would not be required to be contained and reduced in many cases.
Inadequate Preference for Treatment will not Ensure Long-Term
While the bill reflects movement on a number of issues, it 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 bill contains a new preference for treatment, a substantial burden of proof must be met before the preference can be applied: a site-specific analysis must demonstrate that the high concentrations of hazardous material are limited to discreet areas of the site, and either the material cannot be reliably contained or failure to treat it would be "imprudent." This turns the preference for treatment upside down, and essentially makes it a default to containment, unless it can be demonstrated that containment will fail. The result is that the preference for treatment will rarely apply. It is unnecessary to limit the preference for treatment because the preference is simply - a preference - and not a binding requirement as found in Superfund reform legislation in the 103rd Congress.
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 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 the material poses, the less likely productive reuse of that property..
Ground Water Not Adequately Protected
The ground water provisions of the bill reflect substantial movement from previous drafts. I am pleased to see that restoration of contaminated ground water to beneficial uses 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 or significantly constrained. One necessary requirement is to contain and reduce sources of pollution that cannot be eliminated entirely and may continue to release pollutants to ground or surface water; a second requirement is to contain the dissolved plume.
There is a high degree of consensus 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), spread throughout an aquifer, could 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 that 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 that can pose a greater threat to ground water over time because of the increased 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." The absence of a minimum requirement in the bill 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.
Another area reflecting considerable movement from previous drafts is the provision to protect uncontaminated ground water from the spread of contamination. We feel however, that H.R. 2727 allows too many exemptions from the requirement to protect uncontaminated ground water. Specifically, the bill exempts from this requirement any remedial action that uses natural attenuation. Natural attenuation is an increasingly important component of ground water remedies; for example, it was included in 26% of ground water remedies in 1995. Unfortunately, this provision, as written, will eliminate that requirement to protect ground water at those sites. We recognize that in some situations it is necessary to allow for some limited additional expansion of the plume. However, EPA discourages the use of natural attenuation at sites where such an approach would allow significant contaminant migration for two reasons: 1) natural attenuation will generally not be effective in restoring ground water if the attenuation processes are not capable of preventing further contaminant migration, and 2) we want to discourage the use of dilution as the primary mechanism for a natural attenuation remedy. We believe, however, that we can work with you in this area to develop legislative language.
Other areas related to ground water where we could work with you to clarify language in the bill include allowing the use of more stringent State drinking water standards as cleanup levels and limiting the role of moving points of compliance in determining where ground water cleanup levels are achieved.
THE BILL WOULD DELAY CLEANUP
We can all agree that the pace of cleanups should not be delayed. We are currently showing tremendous progress in addressing the current sites on the National Priorities List, and strongly oppose any provisions that could negatively affect that progress.
Mandated ROD Reviews
I appreciate that the bill attempts to capture the "spirit" and features of the Agency's "Remedy Update" Administrative Reform. Under current law, remedy updates have yielded impressive results; however, I am concerned that the regimented mandate in the bill will result in delays and disruptions to the program that are at odds with the Administration's commitment to accelerate the pace of cleanup. The artificial deadlines on requests to review and the required review of all petitions regardless of merit could easily transform the current administrative process that is yielding $340 million in cost savings as a result of FY'96 EPA actions and another $280 million estimated to follow from FY'97 EPA actions into a resource-intensive diversion from cleanup.
Based on our experience with the Remedy Update Reform, our preliminary analysis indicates that the task of implementing these provisions 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. 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. 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 incur a dramatically expanded workload under H.R. 2727. I am pleased with the endorsement of the Remedy Review Board reflected in its codification in the bill, but am concerned that the bill's lowered dollar threshold would approximately double the number of sites currently reviewed and would dramatically increase the workload from the current approximately 10% of decisions the Board plans to review under its current criteria. The bill also causes significant delays by adding an additional notice and comment process to the opportunity to comment on the official Proposed Cleanup Plan the public already has under current law.
THE LIABILITY PROVISIONS WILL INCREASE TRANSACTION COSTS AND LITIGATION, AND WILL EXEMPT MANY PARTIES WHO SHOULD PAY FOR CLEANUP
The Administration is encouraged by the changes you have made in the liability area since introducing H.R. 2500 in the 104th Congress. The elimination of site "carve-outs" and a less prescriptive allocations process reflect a real effort to address many of the problems created by previous proposals. H.R. 2727, however, would require allocations at many sites where they are unwarranted. In addition, while H.R. 2727 attempts to address the need for exemptions or limitations on liability for generators and transporters of municipal solid waste and contributors of extremely small volumes of hazardous waste, the bill's provisions are not clearly defined and will be difficult to implement. Thus, your bill will increase transaction costs and litigation, and will exempt many parties who should help pay for the costs of cleanup.
H.R. 2727 Would Reopen Old Settlements, Diverting Resources
As the Administration's principles make clear, we continue to support the use of "orphan share" funding to promote settlements at Superfund sites. We appreciate your efforts to ensure that such orphan share funding does not compete with cleanup dollars by establishing a fire-wall between orphan share funding and cleanup dollars. Similarly, we recognize that your proposed allocations process attempts to reflect some of the lessons learned from our allocations pilots about the pitfalls of the mandatory, prescriptive process contemplated in the 103rd Congress. We believe, however, that your proposed allocations process would extend to many sites where they are inappropriate or unnecessary, and that your requirement for funding the shares of parties who do not settle will delay cleanups.
The Agency strongly opposes your inclusion of settlement agreements entered and administrative orders issued before enactment of the new legislation in the orphan share funding and allocations process. We would be required to renegotiate hundreds of "done deals" if there were any costs still to be incurred at these sites, including settlements at Rocky Mountain Arsenal, Love Canal, Wells G&H, Lipari Landfill, Ludlow Sand and Gravel, Commencement Bay, Fike Chemical, and Industri-plex. The Agency would be required to identify the shares attributable to orphan and exempt parties even though at many sites documents and witnesses will no longer be available. Where EPA and the parties cannot reach agreement within 120 days on the shares associated with these parties, a formal allocation would be required. EPA and the PRPs must then renegotiate the consent decree and obtain judicial approval. Rather than reducing transaction costs and promoting settlements, this process will result in renegotiation and re-litigation of issues once thought resolved and delay cleanups at sites where the parties have already agreed to the terms and conditions in the settlement agreements. Considerable federal agency staff resources and millions of dollars would be diverted from negotiating new settlements and completing new cleanups to renegotiate old settlements and provide federal funds to major contributors of hazardous waste.
In addition to reopening old settlements, H.R. 2727 would require allocations at numerous other sites where an allocation simply is not appropriate. For example, under your bill, even where the majority of parties at a site agree to settle without an allocation, an allocation would be required unless there is a private allocation that resolves all parties' shares and eliminates contribution litigation. Thus, a single party can force the overwhelming majority of cooperating PRPs at a site into an allocation.
The requirement for an allocation at owner/operator sites could amount to a windfall for these parties at an enormous cost to the Superfund Trust Fund. At many of these sites, the owner acquired the property at a reduced purchase price to reflect the existence of contamination at the site and with the intent to continue the same or similar operations that gave rise to the contamination. It is consistent with long-standing principles of law and not unfair to hold landowners responsible for the hazardous conditions on their property.
H.R. 2727 actually undermines incentives to settle by rewarding recalcitrant non-settlers with federal funding by requiring the United States to fund both the "orphan share" and the shares of non-settling parties. Mandatory funding of the non-settlor share undermines the parties' incentives to forge consensus and bring all parties into a settlement. Further, while the orphan share funding contributions are to come from a walled off mandatory account separately authorized by Congress, shares of non-settling parties must come from and compete with general Superfund dollars which should be available to clean up other sites.
Liability Exemptions Will Increase Costs and Litigation
and Are Overbroad
As we all agree, liability reform is necessary for very small volume contributors and generators and transporters of municipal solid waste. Such reform should take the form of clearly defined exemptions or limitations on liability to ensure that the transaction costs imposed on these parties is minimized to the extent possible. As introduced, however, H.R. 2727 will be extremely difficult to implement, will engender new litigation and will result in substantial transaction costs. Further, many of these provisions are overbroad, exempting parties that should remain responsible.
For example, your exemption for "de minimis toxicity materials" would exempt not only parties who sent municipal solid waste but also parties who sent waste that contains no greater concentration of hazardous substances and is no more toxic than municipal solid waste -- "MSW-like" materials -- regardless of their source. These provisions are problematic for many reasons. For example, it will be difficult at many sites to determine whether a party sent "MSW-like" material and, at many sites, there will be disputes and litigation about who's exempt and who's not. At many sites, highly toxic hazardous substances are diluted with large volumes of low toxicity waste such that distinguishing the hazardous substances would be enormously difficult. Thus, H.R. 2727 could exempt parties who disposed of the very hazardous substances that created the Superfund site simply because those wastes are mixed in with less toxic materials. Finally, many PRPs may view the "low toxicity" waste exemption as applying to sites at which there is no municipal waste at all -- such as the high volume-low toxicity materials that have devastated some mining sites. Litigation will certainly ensue on these issues.
Similarly, your exemption for "de minimis volume materials" is problematic. As we understand your bill, an exemption would be available for parties who: (1) are "small quantity generators" under RCRA or would have been had those regulations been in place at the time of generation; or (2) sent materials not regulated (or that would not have been regulated if the requirements existed at the time of generation) under RCRA Subtitle C which amount to less than one percent of the non-exempt MSW materials. The vast majority of disposal at Superfund sites predates the promulgation of regulations under RCRA, and for that matter, the enactment of RCRA in 1976. The information needed to determine the applicability of the exemption would simply not be available in most cases. Instead, at many sites parties would be required to engage in a "what if" scenario, ultimately resulting in disputes and litigation.
We are concerned that your "de minimis volume materials" exemption would relieve from liability many parties who can and should pay for cleanup costs. Although your exemption is more narrow than previous proposed de minimis exemptions, one percent of the portion of waste that you describe can be a very large amount of waste at Superfund sites. EPA favors expedited final settlements for these parties, rather than an exemption from liability.
Three other provisions threaten increased litigation and transaction costs. The new "innocent owner" provision permits any owner of a contaminated site to avoid liability if he did not "cause or contribute" to the release and he exercised "due care". This provision effectively replaces strict liability with a new causation and due care standard, typically difficult if not impossible to prove, because of the "toxic soup" of waste that exists at most Superfund sites. Further, this provision has no requirement that waste disposal predate ownership. In many cases, this provision would exempt large, viable parties, including experienced and knowledgeable waste management companies, that acquired hazardous wastes sites with full knowledge of site conditions.
Similarly, the small business exemption is broader than is needed to address the ability-to-pay problems of small businesses and will exempt parties that should remain liable. Your provision exempts businesses with 75 employees and either $3 million in annual revenues or an annual profit margin of 3%. Inclusion of a profit margin provision could lead to inconsistent results since several approaches exist for businesses to calculate profit margins. Further, reliance on an analysis of a profit margin to afford a party a complete exemption from Superfund liability could encourage persons to minimize apparent profit to fall within the exemption, i.e., parties could try to "game the system." Finally, a business with 75 employees and a profit margin of 3% of a very large gross revenue amount could be a very large business with the capability to take responsibility for its contamination of the site. These are not the types of businesses we want to exempt.
Finally, while the Administration has supported exempting parties to legitimate recycling transactions, your bill goes too far by exempting parties who disposed of used oil. There are fundamental differences between used oil and other materials addressed under your recycling provisions. "Recycling" of used oil commonly involves the burning of the material, which leaves large volumes of heavy metals and contaminants behind. Used oil often requires mixing with unused oil before it is appropriate for burning. Used oil, by its nature, typically contains hazardous substances and is more mobile than other materials addressed under the recycling exemption.
Congress has reviewed the issue of recycling liability in the past and concluded that only service station dealers should be granted relief from Superfund liability, and only for prospective activity. Further, your provisions extend the scope of an exemption for used oil to essentially all petroleum products and could extend relief to large shipyards, ports and motor pools. Finally, some used oil sites have been virtual pools of contamination that have been extremely harmful to the environment and difficult to clean up. Many parties at these Superfund sites should remain liable for the cleanup for which they are responsible. Other, more narrow provisions protecting small businesses, small volume parties, and parties with limited ability to pay will better address the liability issues at these sites.
Small Parties Are Insufficiently Protected
One of the principle goals of the Administration has been to protect contributors of small amounts of waste from the litigation and transaction costs with which they have been historically burdened. While we appreciate your attempts to address these concerns in H.R. 2727, we believe the bill will increase the burden on these parties.
Under the "mixed funding" and allocation provisions, the Fund share includes the shares attributable to exempt parties. Therefore, even if small parties are exempt, PRPs will have the incentive to bring them into the allocation process to increase the Fund share determined by the allocator. The allocator, rather than EPA, is the "gatekeeper" who determines which parties are subject to the allocation process. Thus, small parties are at risk of being inappropriately included by an overly aggressive allocator or PRPs seeking information. Further, even where a party is found to be exempt by an allocator, the party cannot be certain about its status, since the allocator's determinations are not binding on any matter outside of the allocation.
Through its limitation to NPL sites, the de minimis exemptions also fail to protect small parties deserving of liability relief such as residential homeowners and small volume contributors at non-NPL sites. Further, before they can avail themselves of the exemption, small parties likely will be required to defend themselves in contribution litigation on the complicated issues of waste generation and disposal practices and the nature and content of their specific waste at the site. The Administration supports de micromis exemptions based on waste volume and expedited settlements for other small volume generators and transporters that provide protection from contribution litigation.
EPA's Enforcement Authority Is Restricted
As the Administration's principles make clear, we oppose any limits on the President's section 106 authority which is central to getting Superfund sites cleaned up. H.R. 2727 contains two provisions that place unacceptable restrictions on this authority. First, under your bill, EPA's authority to issue orders under section 106 would be significantly limited by adding additional requirements that EPA must meet to require removals costing more than $4 million or taking more than two years. As a result, current removal actions could be interrupted, thereby threatening human health and the environment.
Second, H.R. 2727 requires that EPA must demonstrate that a party is liable under section 107(a) prior to issuing any cleanup order under section 106. Under this provision, the Agency would be required to make complicated fact-specific determinations before requiring a party to undertake a cleanup - even in an emergency. It is not EPA policy to issue orders to parties that it believes are not liable and, if the party required to undertake cleanup is not liable, the party may petition the Trust Fund for reimbursement. Therefore, this unnecessary provision would only serve to delay cleanups.
In addition to the problems identified with the liability provisions, EPA has serious concerns regarding the limitations on its enforcement authorities at NPL sites where EPA has delegated authority or for which authorization has been granted. In no other environmental statutes has the President's enforcement authority been so limited. While we recognize that the situations where EPA would consider exercising enforcement at a State lead site would likely be few, it is paramount that the President retain the authority to enforce the environmental laws of the United States, including CERCLA, regardless of who has the lead at the site. This retained Federal authority is a critical safety net to assuring that all citizens have a clean, healthy environment.
Finally, as stated in our testimony on the voluntary cleanup portions of Title IV, we believe that new thresholds and terms for when EPA can take action will result in unnecessary uncertainty and excessive litigation over when EPA can act. The Administration's Principles have consistently opposed any provisions which will result in additional and unnecessary litigation.
H.R. 2727 provides general support for Communities
The Administration generally supports much of the Community Participation Title of the bill, especially the expansion of the Technical Assistance Grant (TAG) program and the recognition of environmental justice concerns. However, some problems remain.
Limitations on Public Involvement
While we generally support the provisions governing Community Advisory Groups (CAGs), the bill is unclear as to whether the formation of CAGs is limited solely to proposed and final sites on the NPL. There are some instances when CAGs may be useful at non-NPL sites, such as during large scale removal actions, where technical issues similar to those found at NPL sites may require community input or assistance.
In addition to the limitations above, we believe that other improvements can be made to these provisions. For example, the public meeting requirements are overly prescriptive, requiring the opportunity for public meetings at all phases of the response action. In many cases, it is not necessary to conduct public meetings at a given phase of a response, and we believe that the Agency should have flexibility in scheduling meetings tailored to site-specific circumstances. Additionally, the risk communication provisions are also overly prescriptive, requiring the communication of redundant information, such as central, upper-bound, and lower-bound risk estimates, that provide no added value. We have heard from local citizens in our stakeholder discussions that communities find this type of information at best unhelpful, and at worst, offensive. As a result, we do not support requirements of this nature.
The Bill Provides Incomplete support for States and Tribes
One area on which we 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 bill fail to ensure that authorities are transferred in a responsible manner.
Problematic State Delegation and Authorization Processes
Though the bill appears to provide flexibility in transferring authorities to the States, from a practical standpoint, this flexibility comes at the price of ensuring protection of human health and the environment in a timely manner. Because the delegation provisions allow States to 'pick and choose' different distinct authorities under Superfund, significant delays or problems could ensue due to separate parties undertaking intimately related authorities. For example, community participation is a concept that is woven into the entire Superfund process. Parsing it out as a separate authority not only creates logistical problems for those who provide site-related information, but also puts communities at a significant disadvantage, because the parties responsible for the work may not be the parties responsible for keeping the community informed. Additionally, significant delays could be caused by a break in continuity, as the responsibility for the cleanup of a given site, and even enforcement, is passed back and forth.
Though we are encouraged by the inclusion of the Administrator's ability to review appropriate criteria as part of the delegation process, we are extremely troubled by some of the limitations in the bill. We do not believe that authorization to conduct RCRA corrective action necessarily equates with capability to conduct Superfund cleanups. In addition, we are extremely troubled by the general prohibition on EPA's ability to include additional terms or conditions on the delegation or authorization of Superfund authorities. Because all States and all sites are different, this lack of flexibility could create numerous problems and conflicts of interest, especially at sites where the State is a potentially responsible party, or there is strong community interest in maintaining a Federal role in a given State or at a given site.
The default approval process in the bill is inconsistent with the Administration's Legislative Principles. With regard to delegations and expedited authorizations, the bill provides automatic approval of a State application if the Administrator does not approve or disapprove the application in a specified time frame, resulting in permanent approvals with little accountability. Further, the short time frames for approval and disapproval will not allow for either meaningful public involvement or EPA and State consideration of community input, negating any of the benefits of public comment on State applications. As a result, the default approval could have unintended negative consequences, and could lead to less 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 immediately available to devote to the particular site.
Finally, we are concerned with the failure to ensure equivalent or even minimum levels of protection in authorized States. The bill omits any requirement to use current cleanup standards under CERCLA section 121 as a "floor" for State cleanup decisions. In addition, under the rigid and inflexible processes, our only recourse for ensuring that cleanups are protective of human health and the environment in both delegated and authorized States is to seek withdrawal of the authority delegated or authorized. This drastic and time-consuming approach could easily tie up valuable resources, especially in cases where the noncompliance is minimal.
We continue to believe, consistent with our Principles, that the best manner in which to transfer responsibility to the States is through a process that identifies a workable division of labor between states and EPA, and provides flexibility in implementing such a division. Though the bill provides for Memoranda of Agreement (MOAs) between EPA and delegated or authorized States, these MOAS are issued after the delegation or authorization is approved, and thus have no effect on the transfer of authorities.
Through a process as proposed by the Administration, we can ensure protective cleanups for all Americans by allowing State and Federal programs to utilize their strengths where needed, taking into account individual State program characteristics, without resorting to a hasty transfer of responsibilities or a cookie-cutter, one-size-fits-all approach. Even the General Accounting Office's (GAO) findings support this type of process. In a recent report, GAO found that "[A] strong consensus has emerged among the state and EPA officials we interviewed that efforts to divide responsibilities among EPA and state regulators have reduced frustration among regulators, reduced the duplication of effort, and allowed officials to address a larger number of hazardous waste sites. These views were also supported by those of other stakeholders we interviewed (i.e., industrial representatives, environmental activists, and local community representatives), many of whom added that having a single regulatory entity responsible for the cleanup reduces confusion and identifies a single point of accountability for the cleanup."
Limitations on Federal Abilities
The Administration has serious concerns regarding the significant limitations placed on our ability to take enforcement or response action in delegated or authorized States. The bill limits EPA's ability to respond, except in such limited situations as when the State requests it; ATSDR issues a public health advisory; when action is "immediately required" to address an "immediate" risk that the State won't address; or when the contamination has migrated across State lines. Not only are these limitations contrary to other statutory delegation and authorization frameworks which allow EPA the ability to take actions in delegated States, but they impose a new standard for conducting emergency responses under CERCLA. Current law allows EPA to respond to "imminent and substantial" endangerment. The addition of the 'immediacy' language in these provisions could prevent early response, creating delays and higher costs as contamination migrates and litigation ensues. In addition, the requirement of an "immediate risk" could cause significant delays by requiring time-consuming and costly risk assessments.
In addition to the limitations placed on response, the bill also significantly affects Federal enforcement. The bill contemplates situations in which delegated States forego pursuing cost recovery against a party, but it places limitations on our ability to recover costs in cases the States have not pursued.
Limitations on Listing Sites on the National Priorities
As evidenced by our Principles, we remain opposed to provisions restricting our authority to list sites on the NPL. As a result, we are troubled by the mandatory State Governor concurrence requirement necessary to list a site. Mandatory concurrence from a State Governor provides no flexibility for exceptional circumstances, such as when the State is a PRP at the site (creating a conflict of interest), or when ATSDR issues a health advisory. Though the bill does provide an exception to the requirement, it is extremely limited - forcing communities to wait an arbitrary 12 months before beginning the remedial process, and precluding a listing if the State has taken a "response action," that does not have to be appropriate or complete. We believe that this exception will provide little or no ability to list a site on the NPL in the absence of a Governor's concurrence.
Other State Issues
Besides the issues listed above, there are other potential problems with the bill. For example, the new State cost share requirements appear to add significant costs (estimated at over $100 million annually) to the Trust Fund by limiting a State's responsibility for operation and maintenance costs to, at most, 10%. Finally, the bill raises significant concerns about the expanded State reimbursement program and State Mixed Funding.
H.R. 2727 will not adequately Promote and Enhance Economic
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 bill. However, in reviewing these provisions, we have some concerns.
Grantees Will Find Brownfields Grants Program Requirements
Difficult to Meet
Building upon the successful steps the Agency has undertaken through the Brownfields Economic Redevelopment Initiative, the two grant programs for assessment and the capitalization of revolving loan funds for the cleanup of brownfields sites are positive steps forward, although the details are of some concern. We note that this latest version of the bill addresses an earlier concern that States, political subdivisions thereof, and Tribes be eligible for both types of grants. It is, therefore, all the more puzzling that the bill represents a continued retention of some ranking criteria for assessment grant applications that will prove difficult, if not impossible, for the grantees to furnish or, for the Agency to implement. These "ranking" requirements would either require the Agency to engage in its own investigation to secure the information or, require applicants to provide it directly. Ultimately, these requirements delay the opportunities these grants provide for brownfields redevelopment.
In many cases, the information requested as part of the ranking process may not be available until after the brownfields processes of site investigation and assessment, or, even cleanup are completed. For example, the bill requests economic projections, potential new employment opportunities and estimated additional tax revenues, data which are not available prior to site assessment. In addition, ranking criteria for remediation grants (revolving loan funds) would require evaluation of the ability of the eligible entity to ensure that a grant be conducted under the authority of a State voluntary cleanup program. All States do not have voluntary programs and may desire that cleanup be conducted under other State Superfund or enforcement programs.
Finally, we are deeply concerned that the Committee has chosen to couch its remediation grant program in terms of "remedial actions" at brownfields facilities. Under CERCLA, the term precludes the use of the simpler removal authority which is often appropriate for smaller sites and cleanups characteristic of brownfields and will, we believe, further delay and unnecessarily complicate this process.
Voluntary Cleanup Program Concerns
The bill makes little mention of voluntary cleanup programs. We agree that States should continue to be supported in their efforts to establish, enhance and maintain voluntary cleanup programs. We believe, however, that it is important to ensure that State voluntary cleanup programs continue to be measured against the Agency's baseline criteria and to achieve results that protect public health and the environment. The bill does not mention and, therefore, should make clear that the Agency determines the adequacy of a state voluntary cleanup program. Progress toward the development and enhancement of State voluntary programs should be a condition of funding under this program. Without such a requirement, the five-year authorization for voluntary programs allows States to receive over one million dollars during this period, with no condition that cleanup under these programs be protective. This provision may be treated as an entitlement program by States.
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 bill does not appear to exclude such sites as eligible for cleanup under voluntary programs. In addition, it provides sites which are not already proposed for or listed on the NPL as a shield against federal enforcement and many other current statutory requirements. This could also allow more than one thousand sites with the potential for listing on the NPL, as estimated by GAO, to enter State voluntary cleanup programs despite their higher risk and to avoid Federal cleanup requirements and enforcement.
In this regard, the Administration is opposed to provisions in the bill that would severely limit EPA authority to exercise enforcement actions. Moreover, we oppose the provision which also prevents private cost recovery and citizen suits at sites where a voluntary response action is conducted under an approved State plan. While these limitations on federal enforcement contain reopeners where enforcement could be exercised, they are too narrow and limiting and would prevent enforcement action in the case of an imminent and substantial endangerment to human health and the environment.
The problems discussed above are not an exhaustive list of comments on the bill. The bill is not consistent with the Administration's Legislative Principles on Natural Resource Damages. Terry Garcia, Acting Assistant Secretary for the National Oceanic and Atmospheric Administration, will provide the Administration's views on the bill's Natural Resource Damage provisions. Further, the bill's funding provisions are convoluted, and its cost categories provide access to the Fund for new purposes (natural resource damages) in some cases, and in others, could actually limit our ability to list and assess sites. Additionally, we are concerned with the attempt to amend the Oil Pollution Act through CERCLA reauthorization. Again, this analysis is based on our limited review of the bill, given the short time we have had to review it.
In light of the aforementioned concerns, the Clinton Administration strongly opposes H.R. 2727.
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.