Statement of Carol M. Browner
Administrator, U.S. Environmental Protection Agency, Before the Subcommittee on Finance and Hazardous Materials, U.S. House of Representatives
March 5, 1999
Mr. Chairman, and Members of the Committee. I am pleased to have this opportunity to appear before you to discuss the current status of the Superfund program and your efforts toward the legislative reform of Superfund in the 105th Congress.
Before addressing the successes of the current Superfund program, I believe it is important to recognize, from the outset, Superfund's mission. Superfund is an important, and above all, a necessary program, dedicated to cleaning up our nation's hazardous waste sites, and protecting public health and the environment. 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 significant adverse impacts Superfund sites have had 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.
As I've testified previously before this Committee, the Clinton Administration remains committed to responsible Superfund legislative reform. In the absence of legislative reform, the Agency has reformed the program administratively, producing documented results. The current Superfund program and its status is an important framework for the legislative debate, given that we believe that a new Superfund bill should reflect the current, fundamentally different Superfund program of today, and should not be based on past problems now resolved.
As implementation of the Administrative Reforms continues, we continue to benefit from the flexibility our administrative approach affords us to make adjustments as experience with new ideas is gained, and to adjust our workload to reflect this experience. A good example is the Remedy Update Administrative Reform, which focuses on adjusting Superfund site remedies to changing science and technology. Because of administrative flexibility, in our implementation of this reform we have seized opportunities to make a variety of remedy improvements, and have been able to pace our remedy updates and include appropriate community involvement, 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.
We believe that H.R. 3000 fails to meet these goals. Unfortunately, the majority of the bill's provisions do not reflect the current state of the program and the Administration's Principles. The Administration began this process ready to work with you to craft Superfund reform legislation that could attract broad consensus support. We have provided countless hours of technical support to this Committee and others in pursuit of this goal. While other Superfund reform bills introduced during the 105th Congress have moved towards the Administration's Principles, in many ways, we believe that H.R. 3000 represents a step back. We continue to support a consensus based legislative process, yet H.R. 3000 needs substantial work to meet our goals and deliver on our shared 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 reiterate 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 H.R. 3000, which fails 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 taxing authority expired, resulting in a steady erosion of the Trust Fund. The Congressional Budget Office has projected that the Trust Fund will, at the end of fiscal year 1999, have about enough money remaining to support the program for approximately one quarter into fiscal year 2000.
A FUNDAMENTALLY BETTER SUPERFUND PROGRAM
Last month, Acting Assistant Administrator Timothy Fields, Jr. testified before the House Subcommittee on Finance and Hazardous Materials about the substantial progress of the Superfund program, and the successes of the Superfund Administrative Reforms. I'd like to refer you to his testimony for a full discussion of these issues. However, before discussing Superfund legislation, I'd like to reiterate some of the highlights. Proof of a faster, fairer, more efficient Superfund program can be found in several simple indicators. We have completed cleanup construction at 509 sites on the National Priorities List as of February 27, 1998, and over 470 additional sites are in construction. The President's budget request for Fiscal Year 1999 will allow us to complete cleanup at an additional 136 sites, and achieve our goal of having 900 sites completed by the end of 2001. Our analyses clearly show that Superfund cleanup durations have been reduced by about 20%, or two years on the average. Additionally, responsible parties are performing or funding approximately 75% of Superfund long-term cleanups, saving taxpayers more than $12 billion to date.
Meanwhile, EPA has succeeded in removing over 15,000 small contributors from the liability system, 66% of these in the last four years. We offered orphan share compensation of over $100 million during the past two years to responsible parties willing to negotiate long-term cleanup settlements, and we continue the process at every eligible site. Finally, with cleanups that use treatment of waste and permanent solutions to the maximum extent practicable, costs of cleanups are decreasing dramatically because of a number of factors, including: the use of presumptive remedies; 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 during which it has achieved greater efficiencies and lower costs when selecting cleanup options. As a result of these factors, the costs of cleanup have been reduced by approximately 20%, on average.
Over the past five years, EPA has implemented three rounds of administrative reforms covering a wide range of Superfund concerns, including: fairness in enforcement; public involvement; State and Tribal empowerment; cleanup effectiveness; economic redevelopment; environmental justice; and program efficiency. Recently, EPA released its Annual Report on the status of Administrative Reforms for fiscal year (FY)1997. We believe the successes of the program are demonstrative - cleanup construction is underway or completed at 89 percent of the non-federal sites on the final National Priorities List. While the Administrative Reforms are not solely responsible for these successes, they have strengthened, streamlined, and educated the Superfund program, leading to cost and time savings, as well as important lessons learned. Below are some of the highlights from the 1997 Superfund Administrative Reforms Annual Report.
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 (the 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 a total of 20 site cleanup decisions, resulting in estimated cost savings of approximately $31.5 million. The Board expects to review approximately 10 additional sites in FY 1998, and will continue to refine the scope and nature of the Board's mission and procedures. One example of such refinements is the inclusion of non-time-critical removal actions, meeting certain criteria, in the type of decisions the Board reviews, as well as an expansion in the amount of materials that potentially responsible parties may submit to the Board for review.
In addition to the work of the Board, EPA has achieved great success in updating cleanup decisions made in the early years of the Superfund program to accommodate changing science and technology. After two years of implementation, more than $725 million in future cost reductions are predicted as a result of the Agency's review and update of remedies at more than 100 sites. Updates are currently underway at an additional 35 sites, and our Regions will soon begin developing Regional plans for implementing additional updates in FY 1998. It is important to stress that the future cost reductions described above 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 509 Superfund toxic waste site cleanups (as of February 27, 1998) is a significant measure of the improved pace of cleanups. EPA, through program reforms, achieved more than twice as many cleanups in the last five years than in the first 12 years of the program, combined. Currently, over 89% of the non-federal sites on the National Priorities List (over 1,200 of 1,353) 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. As a result of the quickened pace of cleanup, we are completing construction at an average annual rate of 85 sites per year, as opposed to 65 sites per year a few years ago.
Promoting Fairness in Enforcement
Under EPA's "Enforcement First" strategy, responsible parties perform 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 concerns about the fairness of Superfund. 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. Over the past two years, the Agency offered over $100 million in orphan share compensation to potential settling parties across the United States, and continues that practice 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 15,000 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.
Involving Communities and States in Decision making
The Agency supports the principle that communities must be offered meaningful opportunities for involvement in the cleanup process as early as possible and continue to be involved while the site is cleaned up. Our 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. States are achieving success managing many of the short-term, relatively inexpensive actions that address immediate hazards, and a growing number are conducted pursuant to State voluntary cleanup programs, as discussed below. Some States are able to cleanup NPL sites in about the same time it takes EPA to address these sites. 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 resources, and provide clear State decision-making authority with support from, but minimal overlap with EPA.
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 exist in virtually every community in the nation. The Administration believes strongly that environmental protection, public health, and economic progress are inextricably linked. Rather than separating 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.
Under EPA's new Action Agenda, we will continue to 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 121 assessment pilots to date at up to $200,000 each. EPA expects to select approximately 100 additional National assessment pilots by the end of May 1998. States, cities, towns, counties, and federally recognized Indian tribes that have an interest in environmentally sound redevelopment of brownfields are invited to apply. EPA expects to select a discrete number of pilots specifically dedicated to federally recognized Indian tribes. Applications will be accepted on a "rolling submissions" schedule. The next deadline for the new applications for the 1998 assessment pilots is March 23, 1998.
In the 1997 fiscal year, EPA's budget for brownfields included $10 million to capitalize a second-stage of brownfields pilot. 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 clean up and sustainably reuse brownfields. From the eligible entities who applied, 24 BRLF pilots were awarded and funded at up to $350,000. EPA will limit the use of brownfields pilot support to assessment pilots and will not be awarding BRLF pilots this year, unless specifically authorized by Congress. It is important to note, however, that cities have stated that they desperately need funds for cleaning up municipally controlled (e.g., tax liens) properties. In the January 1998 report Recycling America's Land: A National Report on Brownfields Redevelopment prepared by the United States Conference of Mayors, cities ranked lack of cleanup funds' as the number one impediment to redevelopment.
A very important facet of the Brownfields Initiative is 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 to develop models of Federal cooperation and collaboration on brownfields related issues. 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 nineteen other Federal agencies are sponsoring the Brownfields Showcase Communities project. Through a multi-agency panel, applications are being reviewed and at least 10 Showcase Communities will be selected shortly. These communities will be models for Federal coordination and cooperation.
Finally, our work together to enact the Brownfields Tax Incentive agreed to last year 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 $0.8 billion tax incentive will leverage more than $4 billion in private funds to clean up an estimated 14,000 brownfields. The President's budget request for Fiscal Year 1999 proposes to extend the tax incentive indefinitely.
SUPERFUND LEGISLATIVE REFORM PRINCIPLES
To inform the Superfund reauthorization debate in the current Congress, the Administration provided you with its Legislative Reform Principles. Consistent with these Principles, 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" at non-federal sites (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 1999 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 recently issued a new municipal liability settlement policy for municipal owners and generators and transporters of municipal solid waste. Four of the major national municipal organizations signed a letter supporting EPA's solution to this problem. 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 a total of 900 cleanups through the year 2001. 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 an increased role 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.
These Principles highlight some of the major elements we believe should be addressed in order to achieve responsible Superfund legislative reform, and represent a baseline to which we can evaluate legislative proposals. Other issues addressed in the Administration's Legislative Reform Principles include Natural Resource Damages issues and Federal Facility Issues. I hope that we can work together to address the significant differences between the Principles and H.R. 3000 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.
H.R. 3000: The Superfund Reform Act The Administration has worked, and will continue to work, in a bipartisan fashion with Congress and Superfund stakeholders to enact Superfund reform legislation. Today, I would like to comment on H.R. 3000. After reviewing the bill, we are concerned that these proposals do not accurately reflect the current program and do not embody the Administration's Legislative Reform Principles.
Unfortunately, we believe that H.R. 3000 would not be protective of human health and the environment, and would delay cleanups, increase litigation and transaction costs and shift significant cleanup costs from the parties that created toxic waste sites to the Federal or State and local governments.
Remedies under H.R. 3000 would not assure protection of human health and the environment over the long term because highly toxic or 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 could be waived on the basis of cost.
Overemphasis on Cost at the Expense of Long-Term Protection
Superfund cleanups must be protective of human health and the environment over the long term. H.R. 3000 would impede our ability to achieve this goal by eliminating the current preference for treatment of the most highly toxic or highly mobile hazardous waste. Without such a preference for these materials, much less incentive exists to promote permanent solutions when less costly containment and exposure control options are available, even for such substances as dioxins or PCBs, which are highly toxic.
As you know, the Administration's Legislative Reform Principles indicate a willingness to exchange the mandate in current law to utilize permanent solutions and treatment to the maximum extent practicable, for a new emphasis on long-term reliability, provided the preference for treatment of highly toxic or highly mobile waste is retained. 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.
In H.R. 3000, compounding the effects of the elimination of the mandate for permanence and the preference for treatment is the heavy emphasis on cost considerations. The bill adds to the mandate in current law for "cost-effective" remedies new requirements for "cost-reasonable remedies," for remedies to provide "long-term reliability at reasonable cost," and to consider in the balancing "the reasonableness of the differences in costs between one remedial option and the other remedial options." These provisions set up a de-facto cost-benefit test which focuses on risk reduction as the primary "benefit" to be considered, rather than long-term protection, which we believe is intended to further weight cleanup decisions toward cheap containment remedies. The Administration believes that H.R. 3000 will result in an over-reliance on containment of hazardous waste, resulting in less long term protection of human health and the environment, and less productive reuse of Superfund sites. Our Principles support fostering productive reuse of property to the degree practicable.
Inadequate Requirements for Ground Water Cleanup and Protection
H.R. 3000 also fails to embrace the Administration's principle of restoring ground water to beneficial uses, whenever practicable. H.R. 3000 ignores all potential beneficial uses, (such as industrial or agricultural), focuses only on drinking water and merely suggests that remedies should "seek to remediate otherwise usable ground water to the extent practicable and consistent with" the balancing process. With the over-emphasis on cost and risk reduction in the balancing process, and the fact that ground water restoration and protection is always balanced against the low cost of exposure control, the provision appears unlikely to deliver the kind of ground water cleanup necessary to ensure safe drinking water for more than the one-half of the United States population that currently relies on ground water as its source of drinking water and the countless millions who will so in the future.
We believe that all uncontaminated ground water should be protected, not just currently known drinking water sources, and that cost should not be the major determinant of whether that goal is fulfilled, as suggested in the bill. We have learned from our experience that it is far more difficult and costly to clean up contaminated ground water than it is to protect it from contamination from the start. Also worrisome is the bill's vague language regarding "reasonable points of compliance" for ground water cleanup standards.
The bill fails to reflect the widely accepted approach to containing and reducing sources and plumes of contamination that we determine cannot be restored advocated by the National Research Council as well as our own guidance, emphasizing instead how decisions about the "technical impracticability" of restoration may be made solely on the basis of modeling and projections without any physical work performed at the site. While this is feasible in some cases, our experience suggests that modeling alone rarely provides sufficient information and that at least a "pump test" is needed.
Finally, the bill runs contrary to our recent guidance which promotes collaboration with States in making ground water use determinations through the Comprehensive Ground Water Protection Program process. Rather than helping to ensure that Superfund decisions are placed in the context of an understanding of potential uses and issues associated with ground water on an aquifer or watershed basis, the bill would only consider State use designations that are made for individual facilities, thus thwarting the comprehensive planning we believe necessary for making thoughtful decisions about the potential impact of the Superfund contamination on ground water that may be needed in the future.
Problematic Risk Provisions/ Inadequate Protections for Children and Other Sensitive Populations
EPA remains very concerned with the risk provisions of HR 3000. First, while the bill does require identification of highly exposed individuals (e.g., subsistence fishermen) or susceptible groups (e.g., children, asthmatics), it does not require that selected remedies must protect such people. Instead, the bill warns us not to "seek to address unrealistic or insignificant risks." Second, the bill captures the risk range for carcinogens within which we currently manage risks at Superfund sites, but does so without including the 10-6 point of departure we use in our decision making. We are concerned that the bill's heavy emphasis on cost will inevitably drive decisions toward the less stringent end of the risk range (10-4). Also, the bill is strangely silent on non-carcinogens, which ATSDR has documented as the cause of birth defects, nerve damage and kidney disease at numerous sites.
With regard to the conduct of site-specific risk assessments themselves, we object to provisions which require consideration and use of any "actual" exposure information without providing any standards for ensuring the relevance, quality or representativeness of the data. This could force risk assessors to use data that are not representative of actual site conditions or of poor quality.
We object strenuously to the study of 12 substances called for by the bill and the prescriptive methodology it lays out for conducting toxicity studies that we believe would be in conflict with the Agency's forthcoming "Guidelines for Carcinogen Risk Assessment," which have undergone both public comment and scientific peer review. The bill's emphasis on "central estimates of risk" and "most plausible assumptions" could lead to values that are not protective of the more sensitive individuals in the population. We think it is far more appropriate for the Superfund to use Agency-approved toxicity values rather than get into the expensive and time-consuming business of developing potentially competing values.
Also objectionable are the restrictions the bill places on the Agency's use of its Integrated Exposure Uptake Biokenetic (IEUBK) model for predicting potential long-term blood-lead levels for children. The bill would appear to require either a finding of actual exposure from blood lead data (which varies significantly depending at what time in the year the sampling is conducted) or delay cleanups pending the results of a study to be performed by the National Academy of Sciences. At best, the proposal provides no added value since EPA already has done much of what is being proposed for the NAS and presented the findings to the National Academy of Sciences. At worst, the proposal will delay decisions because of protracted arguments and legal challenges over whether the empirical data is a "statistically significant representation" of residents, (term undefined) or whether "reconciliation" of empirical vs. modeled data has been accomplished. These and other undefined new terms such as "weight of scientific evidence," and "scientifically objective," and "unrealistic or insignificant," won't lead result in better cleanup and will cause litigation and delay.
Cleanups Will Be Delayed
Additional sources of cleanup delays will result from mandatory requirements to review past cleanup decisions whenever requested to do so by a PRP, which will divert important resources from new site cleanups. Resources will also likely be impacted by the attempted codification of EPA's successful Remedy Review Board Administrative Reform. Instead of allowing EPA to retain the Administrative flexibility that has made the Board such a success at balancing workload resources against site cleanup issues, the language in H.R. 3000 introduces lower dollar thresholds for Board review, which is likely to double the number of sites reviewed by the Board. In addition, the language provides for review of cleanup decisions below this threshold, as well, creating the likelihood of additional delays as parties seek to being cleanup decisions before the Board. H.R. 3000 has broad liability exemptions which will create massive amounts of new litigation.
The Administration continues to support the principle that those responsible for the contamination should also be responsible for its cleanup. H.R. 3000 works to exempt or limit the liability of parties that are liable, viable and should remain responsible for cleanup of their sites. As an example, the bill exempts all generators and transporters of any waste for pre-1987 activity, unless their activity contributes significantly or could contribute significantly to the cost of cleanup. We estimate that over 90% of all waste at National Priorities List (NPL) sites is attributable to pre-1987 activity, meaning that this exemption could effectively operate to repeal the current liability system.
Under the bill, a generator or transporter of hazardous waste prior to 1987 is liable only if it "contributed significantly" to the cost of a cleanup. This language will shift the current standard of strict, joint and several liability to, essentially, one of causation, creating the need for significant amounts of litigation, and generating high transaction costs and potentially long cleanup delays. While the Administration has consistently supported targeted efforts to remove the "little guy" from the Superfund program, H.R. 3000 essentially removes everyone from the process, and creates a litigation nightmare for bringing the "big guys" back in. One characteristic of most Superfund sites is that the waste forms a "toxic soup," which makes any determinations about which parties contributed significantly to the cost of cleanup difficult, if not impossible. Also, the bill would exempt many parties whose volumes are large, but relative volumes are small.
The bill also exempts generators and transporters of municipal solid waste and sludge at non-federal NPL sites, and limits the liability of municipal owners and operators. Under the terms of H.R. 3000, 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 H.R. 3000's orphan share funding provisions. Recently, the Agency released its settlement policy for municipalities and municipal solid waste contributors. We believe that the policy will reduce contribution litigation, and responsibly address the issues related to this waste stream, without broad liability exemptions that will generate litigation and adversely affect the pace of cleanups.
The liability exemptions and limitations in H.R. 3000, when read together with the Orphan Share Funding provisions, will create an enormous obligation for the Trust Fund and could divert funds from cleanups. Because orphan share funding would not come from a separate source, cleanups will compete for the same dollars as the Orphan Share claimants. To make matters worse, the bill provides that orphan share funding is an entitlement. As such, claims for orphan share funding would be legally superior to other uses of the Fund, including the costs of cleanups.
H.R. 3000 Limits EPA's Enforcement Authority
H.R. 3000 prevents EPA from ordering cleanup work to proceed while the responsible parties argue over their share of liability. These limitations on EPA's ability to issue enforcement orders could impose significant delays in the cleanup process. EPA is limited in its ability to order a party subject to the allocation process to commence work, unless it can meet the new and vague threshold which requires a "public health or environmental emergency," although it is unclear as to who determines that such a crisis exists. Further, as discussed below, the State portion of the bill prohibits EPA from taking action under CERCLA, including enforcement, at sites where authorization has been granted, and in great part, prohibits EPA enforcement or response where authority has been delegated to the State.
The Allocation Process is Too Broad and Prescriptive, Discourages New Settlements, and Reopens Settlements
The Administration has a number of serious concerns with the allocations provisions. 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. H.R. 3000 requires formal and prescriptive allocations at all non-federally owned NPL sites where post-enactment costs are outstanding (over 1,200 sites), including owner and operator sites. In addition, under the bill, 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 from being dragged through the allocation process.
In 1994, as part of Administrative Reforms, EPA implemented an allocations pilot project at 12 Superfund sites. From these pilots, EPA learned much 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. Our experience suggests that our allocations should reduce transaction costs by promoting settlements and encouraging an allocation of costs among settling parties through a flexible, nonprescriptive process that makes effective use of available "orphan share" funding.
Instead, the allocation provisions of HR 3000 reward recalcitrance and undermine incentives for PRPs to agree to cleanup settlements. One of the great successes of the current program is the high proportion of cleanups performed by PRPs. Under HR 3000, however, PRPs need not agree to perform the cleanup in order to obtain the benefits of "fair share funding." A party can simply "cash out" for the party's allocated share. Even those that refuse a cash-out settlement suffer no adverse consequences. If EPA orders the party to perform a cleanup, the PRP is to be reimbursed for 100% of the costs it incurs in excess of its allocated "share." On top of this financial reward, the recalcitrant PRP is free to continue to litigate its liability, and even the cleanup. As a result, under H.R. 3000, a PRP that refuses to enter into a cleanup settlement after an allocation is treated better than a cooperative PRP that enters into a settlement and assumes responsibility for cleaning up the site. This approach will not promote settlement and eliminate litigation.
In addition, we do not support the requirement in the bill to conduct allocations at "owner/operator" sites, where the only PRPs at the site are liable as owner or operator. In most commercial real estate transactions, the negotiated purchase price already reflects any diminution in property value as a result of contamination at the site. Also, these sites often have fewer parties. Allocations at owner/operator sites thus do not produce the same savings in transaction costs as allocations at other sites. Finally, nearly 50% of the NPL consists of owner/operator sites. Thus allocations at these sites would nearly double the number of required allocations and significantly increase the cost to the taxpayer.
Finally, we strongly object to the language in H.R. 3000 which allows the reopening of final settlements, decrees or orders to conduct an allocation. Final settlements, orders, and decrees should be just that - final. All of the parties subject to these agreements or orders addressed their liability in a fair and equitable manner under the governing laws at the time. Hundreds of past Superfund settlements will be reopened in order to re-litigate the same issues these agreements or orders already resolved, in a lengthy and formal allocation process. For example, a PRP that agreed to a settlement years ago could now use the allocations process to demand a complete refund for future cleanup costs if the PRP's liability was based on dumping that took place before 1987. The taxpayers would have to refund all the future cleanup costs that such a PRP agreed to pay, unless the government can prove the PRP's waste "contributed significantly" to the cleanup costs. Even if the government could prove this, the taxpayers would have to reimburse the PRP for any part of the costs the PRP had agreed to pay that was in excess of its allocated share.
Reopening these settlements for an allocation, simply because the liability and share of responsibility was not determined for all potentially responsible parties is inconsistent with good public policy - undercutting our ability to provide finality to parties in settlements, and generating enormous allocation and transactional costs. The hundreds of prior cleanup settlements that EPA negotiated at NPL sites were intended to clean up sites and to avoid the cost and burden of discovery and trial. H.R. 3000 would undo those benefits by diverting cleanup and legal resources to the massive effort of reopening these settlements, resulting in a delay in new cleanups and fewer new settlements.
Statute of Limitations and RACs
In addition to the major concerns identified above, we are troubled by other issues in the title as well, including, but not limited to the unmanageably early trigger for the enforcement statute of limitations. By requiring EPA to initiate cost recovery action within 6 years of the start of a remedial action, the bill ignores the length of time necessary to conduct the remedial action, or even the number of remedial actions at the site. Also, we remain concerned with the very broad exemptions, and few limitations, placed on the liability of cleanup contractors.
H.R. 3000 Provides Incomplete support for States and Tribes
One area in which we seem to agree is our desire to provide greater involvement for States and Tribes in the Superfund program. However, the manner in which the transfer of authorities is accomplished is crucial to ensuring strong and consistent protection of human health and the environment. We continue to believe that the only way to do this is by retaining flexibility in the law to take advantage of the relative strengths of State and Federal programs. Each of the fifty States has different skills and capabilities which should be used in implementing the program at the local level, but with the appropriate Federal safety net to ensure cleanups are conducted and provide consistent protection. Inflexible delegation and authorization schemes are not the best ways to forward the goal of a sensible division of labor. Congress should allow us to work as partners with the States, not competitors.
As we have stated in our Legislative Principles, we believe "flexible partnerships" represents a responsible means of reaching a workable division of labor between EPA and the States. A responsible transfer process must: retain a strong Federal safety net for ensuring that parties responsible for contamination clean it up; ensure that cleanups provide consistent protection of human health and the environment; minimize cleanup delays or disruptions; and conserve Superfund Trust Fund dollars.
We believe that working with States to reach partnership agreements is a more appropriate method for State assumption of Superfund authorities. The Superfund program addresses a wide variety of technically complex issues, and affects a variety of site types and media. In addition, Superfund enforcement authorities are broad, and cover a wide range of causes of action, from cleanup orders to cost recoveries.
Finally, we remain concerned with implementation problems inherent with a delegation or authorization process. We are dismayed by the sometimes significant decline in the funding levels and enforcement laws of some State Superfund programs in recent years, which could affect implementation of a delegated or authorized program. For example, funding for the Texas "Superfund" program was reduced by 50% - from $44 million to $22 million for fiscal years 1997-98. Even if we believed such transfer processes were appropriate, the delegation and authorization processes, as proposed in H.R. 3000, have numerous problems, as discussed below.
Problematic State Delegation and Authorization Processes
H.R. 3000 provides an array of opportunities for States to implement the Superfund program, including delegation, authorization, and presumptive authorization. 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. Under the provisions of H.R. 3000, EPA is limited to reviewing only self-certifications provided by the Governor of a State, and EPA is prevented form placing any terms or conditions on the transfer of authorities. Under this bill, a State could apply for a transfer of authorities on a single sheet of paper - a site, or list of sites, and two or three certifications.
Even more troubling is process for fast-track' presumptive 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 10 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 H.R. 3000. 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.
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. By allowing States to pick and choose transferred authorities, the bill sets up a process fraught with delays and inefficiencies, as States have no obligation to assume reasonably related authorities, such as cleanup implementation and community involvement, thus EPA could be forced to implement future actions based upon previous actions performed by States, which could be inconsistent.
Transfer of Responsibility is Approved by Default and Limits Citizen Access
Additionally, we are concerned with the default approval process set out in the H.R. 3000. With regard to delegations, the bill provides automatic approval of a State application if the Administrator does not approve or disapprove the application in a specified time frame, based solely upon a finding that the Governor's certification is either true or false. Similar short time frames also apply to applications for 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. 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 bill 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 H.R. 3000, where the decision as to the lead regulatory agency can 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. In any formal process to transfer Superfund authorities, the affected communities should have a voice.
Limiting Ability to Respond to Emergency Removals
H.R. 3000 prohibits EPA from taking action at non-Federal listed facilities where authorities have been transferred, including actions to perform emergency removals, unless requested by the State. This represents a severe limitation on EPA's ability to ensure protection of public health and the environment. Even in the best of circumstances, when a State has every intention of seeking assistance from EPA, securing such a request could significantly delay or disrupt important cleanups. In many cases, the time it takes to receive a State request can be an eternity in the life of an emergency removal action. Within that time frame, contamination can easily spread, causing increased cleanup costs and durations. These provisions, in concert with unrealistic delegation time frames, could severely limit the President's ability to protect human health and the environment and to implement the emergency response system which has been so successful in responding to chemical spills, fires, and other emergencies.
Cost Share and NPL Listing/Delisting Issues
Besides the issues listed above, there are other potential problems with the provisions of H.R. 3000. For example, the new State cost share requirements appear to add significant costs to the Trust Fund - approximately $100 million, annually. We continue to oppose provisions that restrict EPA's ability to list sites on the NPL without a Governor's approval, even in situations where Tribal, local community, or interstate impacts exist, or where the State is a PRP. We currently are working with States in a very successful voluntary effort to seek their approval before listing a site on the NPL. In addition to our concerns regarding listing sites on the NPL, we are also concerned about EPA's lack of involvement in decisions to delist sites, or portions of sites, based solely on a written statement from the Governor stating no further action is required or the cleanup is underway or completed. While the Governor's recommendation is important, such a statement may not be adequate in all cases to ensure protection of public health and the environment.
H.R. 3000 Provides Insufficient Support for Public Participation
Though we encourage any expansion of public participation at Superfund sites, we still have significant concerns with the provisions of your draft proposal. Specifically, we believe that the proposal works to limit a community's access to information and technical assistance.
Limits TAG Program Effectiveness
For example, the proposal fails to include provisions to improve the efficiency of the Technical Assistance Grant (TAG) program, such as allowing TAGs at non-NPL sites. The bill also limits the total grant amount to $100,000. This limit arbitrarily restricts the amount of technical assistance available to a TAG recipient.
CAG Provisions Don't Provide Communities with an Appropriate Forum
Provisions in the proposal relating to Community Advisory Groups (CAGs) raise concerns as well. Under the proposal, establishment of CAGs are limited only to sites proposed to, and final, on the NPL. For the reasons above, this universe is too limited. The proposal also calls for CAG formation and membership to be essentially determined by the Governor, with narrow exceptions, rather than by the CAG itself. Further, the proposal requires that a CAG, if one exists, to be the sole entity eligible for a TAG. By requiring that the TAG be awarded to the CAG, the bill eliminates the opportunity for other community-based organizations to access TAG funds. It is important that flexibility is maintained in the TAG award process. The CAG provisions also fail to "grandfather" community groups established at Superfund sites by other Federal agencies.
Overly Prescriptive Requirements
Other concerns relate to the overly prescriptive nature of the proposal. The rigid general public participation requirements do not allow EPA the flexibility to tailor public involvement activities to individual community needs and site specific circumstances. In addition, the Administration supports additional flexibility for public health authorities which will allow ATSDR to tailor its public health related activities at Superfund sites. Because conditions vary form site to site, other responses to public health concerns may be more appropriate than public health assessments. We are also troubled by the burdensome risk communication requirements in the bill.
Finally, two major public participation issues are not addressed in the proposal. The proposal provides for no public involvement in State delegation decisions, and the provisions fail to address various Environmental Justice concerns. As States continue to become more active partners in Superfund cleanups, it is important to retain public participation in all phases of the transition, especially in delegation decisions. Additionally, the Administration supports addressing Environmental Justice concerns, including the evaluation of facilities for the NPL.
H.R. 3000 Fails to adequately Promote and Enhance 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 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. Affirmation of the need for brownfields program support can be seen in the recently released report Recycling America's Land: A National Report on Brownfields Redevelopment (January 1998) by the U.S. Conference of Mayors. The report finds brownfields redevelopment to be a top of priority for America's cities. As the report states "failure to address brownfields redevelopment will result in a wasted opportunity for America to recycle its land, create jobs, increase local tax bases and revitalize neighborhoods."
Lack of Brownfield Funding
With estimates of brownfields sites ranging from 400,000 to as many as 600,000 sites, brownfields is not an isolated problem. Support for brownfields can be seen in virtually every community across this Nation. We are, therefore, surprised to find that H.R. 3000 fails to provide any funding support for a brownfields program.
Ineffective Voluntary Cleanup Program
We further question the provisions in the bill regarding 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. H.R. 3000 would allow self-certification by States that a voluntary cleanup program has been enacted and that there are adequate resources to implement it. Meaningful community participation as part of the response program is not required. The Agency is not afforded any opportunity to review or comment on State programs. The bill 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, funding support for voluntary programs is provided with no condition that cleanup under these programs be protective.
Restrictions on EPA Enforcement Authorities
Finally, as stated above, the bill seriously impacts Federal enforcement authority. Provisions could allow a State voluntary response plan to be used as a shield against any Federal or State permit requirements and cost recovery actions, if a release at the permitted facility is subject to a State voluntary response plan. The Administration is opposed to provisions in the bill that would severely limit authority to exercise enforcement actions. Moreover, the provision would also prevent private cost recovery and citizen suits at sites where a voluntary response action is conducted under an approved State plan.
The problems discussed above are not a complete list of problems contained in H.R. 3000. Other significant problems exist in each of the other titles of the bill, including Federal Facilities, Funding, and especially Natural Resource Damages. The testimony submitted on behalf of the Federal Trustee Agencies discusses the Administration's concerns with the NRD title of the bill.
In light of the aforementioned concerns, the Clinton Administration does not support H.R. 3000. However, we look forward to continuing 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.