Summary of the March 12, 1997 Hearing by the House Transportation and Infrastructure Committee, Subcommittee on Water Resources and Environment
Representative Sherwood L. Boehlert (R-NY), Chairman, Subcommittee on Water Resources and Environment
Superfund, as it is currently defined, does not serve the needs of the people. Sixty billion dollars have gone to clean up less that one quarter of the sites on the National Priorities List (NPL). Cleanups still take too long and cost too much -- the average site now takes 10-11 years to be cleaned up at a cost of $24-25 million. One-third of expenditures are transaction costs paid mostly to lawyers.
The Administration has taken positive unilateral steps to improve the program. Codification of some of the administrative reforms should move forward.
The National Remedy Review Board is a good idea that can save millions of dollars, but it currently addresses only a small portion of sites.
EPA's administrative reforms fall short in the effort to get the little guys out of the web of litigation. Community redevelopment is hampered by the fear of unwarranted liability.
Improvements need to be made to EPA's brownfields initiatives.
States should play a greater role in cleanup.
If Superfund can be fixed administratively, then why has it taken 16 years? Administrative reforms are only a piece of the puzzle. We need comprehensive statutory reform that promotes both environmental protection and business development. This can be done, and it should be done this year.
The Senate has been criticized for moving forward without including industry, the Agency, and the stakeholders. The House will not make this mistake. We must start with a clean slate.
Representative Robert A. Borski (D-PA), Ranking Minority Member, Subcommittee on Water Resources and Environment
We all agree that there should be changes, but not what they should be. We need to find the common ground among the stakeholders. The committee will work to construct a bipartisan legislative solution to build upon the Agency's internal successes.
The Honorable Carol M. Browner, Administrator, Environmental Protection Agency
The Agency admits that legislative reform is needed to improve Superfund, and is hoping to achieve consensus-based reform.
A good starting point is to recognize where the program is today. EPA began putting reforms into place four years ago. At that time, EPA admitted that the program was "broken." The Agency's administrative reforms have led to a faster, fairer, and more efficient program.
In just four years, 268 sites have been cleaned up -- more than the previous 12 years combined. An additional 482 are in active work phases now. But the work is not done. EPA is determined to double the pace of cleanups, and clean up 500 more sites by 2000.
EPA will hold firm to the "polluter pays" principle and to ensuring that money is going to cleanups, not to lawyers. EPA has implemented reforms to reduce transaction costs. Superfund dollars should be reserved for orphan sites and for emergency actions. EPA cannot afford to repeal liability and use Hazardous Substances Superfund (Trust Fund) money for cleanups. Responsible parties should be held responsible for the cost of cleanup.
Many of the old problems are solved, and should not be revisited. We should focus on what problems remain. Reform legislation should:
Protect human health and the environment; Hold polluters responsible and have a liability structure that makes sense; Encourage community participation and relations between all levels of government.
EPA is willing to get together and start fresh in drafting new reform legislation that will not fail as it did in the previous two Congresses.
QUESTION AND ANSWER SESSION
Representative Sherwood L. Boehlert (R-NY), Chairman, Subcommittee on Water Resources and Environment
Q: In testimony last week, this committee heard that the Minnesota State Pollution Control Agency had taken co-disposal sites out of the NPL process and established a dedicated trust fund for cleanups. The State spent only $400 million for cleanup, instead of the previously projected cost of $800 million.
Such liability exemptions at co-disposal facilities should be enacted on the Federal level. Exempting liability at all current co-disposal sites on the NPL would cut out 85% of small businesses, and lead to much faster cleanups. Cleanup money for the sites would come from the Trust Fund. Big polluters will not be getting of the hook since they will have already paid their fair share of the cleanup costs through the corporate taxes that make up the Fund.
We believe that this is the best solution to remove the little guys from the web of Superfund litigation. How do you respond?
A: The Administration agrees that small parties have been unfairly trapped in litigation. However, a site "carve out" would end up eliminating some parties who do have real liability. For example, at the Delaware Sand & Gravel site, a carve out would exempt polluters like DuPont, Chrysler, BP, and General Motors. Draining limited Trust Fund resources at such sites would diminish the amount of funds available for orphan sites and other programs.
The Administration advocates drawing a "bright line" in the statute that identifies which parties should be left out.
With reference to Minnesota's program, most of their landfill sites are not bad enough for listing on the NPL, and the State had to raise taxes. EPA encourages States to handle such non-NPL sites. EPA analysis shows that one half of the 250 co-disposal sites that triggered NPL listing are industry-owned landfills.
Q: Defendants in landfill cases get sued for liability. Out of reluctance to pay, they in turn sue other parties. Third parties are even further suing hundreds of more parties. There was a recent story in the Christian Science Monitor about a homeowner being sued for $76,000 in a landfill case. Such incidents are intolerable.
Another frightening example of what can happen is the Ludlow site in New York. The big guys don't want to pay, so they go after all the little guys. They actually assembled small business owners and members of the community in an auditorium, and told them to offer a payment, or face the cost of fighting the case in court. The small parties paid them $1500 each, after being told that it would cost more to go to court. They were operating under the current Superfund law. We should never let this type of incident happen again.
A: It should be made clear that it was the PRPs that did this. It was not EPA, and EPA has pledged to prevent this from ever happening again. If small parties are put into such a situation, EPA will step in and defend them.
Q: Some of the 10 States who testified last week have expressed concern over EPA's provision on "hot spots" and groundwater treatment.
A: EPA is interested in the development of new innovations and technologies, but wants to ensure that appropriate treatment is done at sites. Some States have proposals to just leave groundwater alone if bottled water is available, for example.
Q: Does that mean that EPA wants all contaminated groundwater to be cleaned up to drinking water standards?
A: EPA would like to steer away from across-the-board standards. Groundwater can be treated in many cases, and the appropriate technology should be applied. It is necessary to take future use into account on a site-specific basis.
Q: We should work with Transportation and Infrastructure and with Commerce to put something together before the Easter break. Will you commit to working out a specific timetable on reform negotiations so that we can begin drafting legislation?
A: EPA wants to be involved, but also wants to ensure that the stakeholders have input into it, and that the effort is bipartisan.
Q: We need to start writing the bill. Will you commit to do this [work on a timetable] before the Easter recess?
Representative Glenn Poshard (D-IL)
Q: Is EPA working on alternatives to incineration?
A: EPA has worked with States and communities to help come up with alternatives to incineration, and the Agency is willing to continue such efforts.
Q: What is EPA doing to help Illinois with its brownfields, and with brownfields across the nation?
A: EPA has requested increased funding to go toward brownfields initiatives in the budget. In addition, the President's balanced budget request includes a tax deduction for cleanup of brownfields.
Representative Steve Horn (R-CA)
Q: Regarding the Government Performance and Results Act, what are EPA's plans to obtain adequate cost information? The Agency does not seem serious about cost measurements.
A: EPA already includes cost/benefit analysis in the implementation phase of the cleanup process. The Agency's mandate is health-based and not cost-based. It is necessary, however, to prove cost measurement and weigh options in terms of cost impact.
Representative Jay Johnson (D-WI)
Q: At the Fox River site, $25 million has been spent over 11 years to determine the extent of the PCB contamination and none of the contamination has been removed. Do EPA and the Department of Justice (DOJ) continue to recognize state voluntary cleanup work?
A: Thirty-three States already have adopted voluntary cleanup programs, and EPA has guided them through the process. EPA has signed memoranda of agreement with 10 States, and is in negotiations with nine more. EPA encourages State involvement, especially with non-NPL sites.
Representative Jo Ann H. Emerson (R-MO)
Q: With regard to the Washington D.C. Navy Yard site, the Sierra Club has indicated that the site should not be put on the NPL because this would slow cleanup. How can this be?
A: That site is a Federal facility site. Such sites have different consideration. The Sierra Club may be stating such a position because they are suing parties at the site, and NPL listing may interfere with their agenda. Such questions should be posed to the Sierra Club.
Representative John R. Thune (R-SD)
Q: Is there agreement that Superfund cleanups are taking too long?
A: Our analysis indicates that cleanup durations are decreasing from an average of ten years to eight years. In South Dakota, the Annie Creek Mine Tailings Site demonstrates one success of the administrative reforms. The Superfund Accelerated Cleanup Model (SACM), developed in Round 1 of the reforms, was used to successfully expedite the cleanup process.
Q: Referring back to inappropriate liability in the co-disposal discussion, who exactly would be the inappropriate parties?
A: In the new statutes, homeowners would be taken out of the cost recovery process. If a third party litigator goes after them, EPA will protect them. The Agency is willing to engage in discussion about roles of cities in municipal co-disposal sites. It is necessary to make a distinction between municipalities who may have hauled waste versus municipalities who were owner/operators.
Q: How do we avoid unfairly shifting the cost to the remaining parties at the site? How can we go about cleanup cost allocation and keep the appropriate parties in?
A: EPA has always advocated adding the "bright line" provision to the statute. This would eliminate businesses of a certain size from liability. Then, the allocation system could be used to assign cost. It is vital that all potentially responsible parties (PRPs) agree who the allocator is. EPA has demonstrated this by testing the approach at some sites. A fair-share allocation scheme that allows for flexibility should be considered in Superfund reauthorization.
Representative Frank R. Mascara (D-PA)
Q: Pennsylvania is frustrated with its brownfields. It is very difficult to encourage development, and banks are reluctant to loan because of liability concerns. Is anything being done to address this?
A: Yes, EPA has worked closely with many States to help them create incentives for brownfields redevelopment. Appropriate methods of protection should be incorporated into the reauthorization of Superfund.
Representative Steven C. LaTourette (R-OH)
Q: With respect to brownfields, how is EPA handling future use considerations?
A: Many sites (60%) are now being approved for cleanup to levels that are below residential standards. EPA also is committed to taking into account local interests.
Q: With the use of deed restrictions at such sites, what ensures that the land is used correctly in the future?
A: There are many ways to protect against misuse, such as local zoning laws. Guaranteeing protection is essential. Zoning protection falls to State and local governments, so cooperation is necessary.
Representative James L. Oberstar (D-MN), Ranking Minority Member, Transportation and Infrastructure Committee
Q: The Superfund program is doing well. Reforms need to be targeted, and we must move ahead with what we agree on. This committee is capable of making such progress. With regard to the co-disposal landfill discussion, if we were to exempt the small polluters from liability, wouldn't this be inconsistent with the "polluter pays" principle?
A: It is a question not of consistency or inconsistency, rather it is a question of what makes sense. The original creators of the statute did not expect "Mom and Pop" stores and homeowners to be dragged into the Superfund liability net.
Representative Wayne Gilchrest (R-MD)
Q: How does EPA track the best innovations in cleanup technology, and are such techniques being utilized?
A: EPA has addressed this issue with the Update Remedy Decisions at Select Sites reform. Many decisions were made in the past when current technologies were not available. At 30 such sites, EPA is saving $280 million because of this reform.
EPA learns about new technologies through PRPs, universities, and others. PRPs often do a great job of finding the quickest, most effective solutions available because it is in their best interest to do so.
Representative James Barcia (D-MI)
Q: There has been much debate concerning the Middle Grounds Landfill in Michigan, and whether or not it should be listed on the NPL. Some have recommended not putting it on the NPL for fear that this would delay cleanup and lead to more problems. How do you respond to this?
A: That is not a valid concern. The Superfund program has worked well in Michigan. Michigan has had 84 sites, and 24 have been cleaned in the last four years.
Q: What is the State's role in this process?
A: EPA seeks the approval of the States. In the Middle Grounds Landfill case, the Michigan Governor is not approving a proposal for NPL listing. Instead of requiring Governor approval, perhaps the approval of any State official should suffice.
Representative Vernon Ehlers (R-MI)
Q: In Michigan, a local Board of Public Works has expressed frustration with delayed billings and the lack of appropriate information from the EPA. They request that EPA be more business-like with their administrative affairs. They should run bills monthly and supply all appropriate information.
A: Efforts have been made by EPA to address this. Any problems that remain will be addressed.
Q: With regard to cleanup laws and encouraging the use of brownfields, a lot can be learned from the States, especially with regard to the future land use approach.
A: EPA will continue to work closely with the States. EPA is willing to give States flexibility with their sites, especially non-Federal sites. Federal sites require more EPA involvement.
CONGRESSPERSONS IN ATTENDANCE
Republican Sherwood L. Boehlert, NY, Subcommittee Chairman Herbert H. Bateman, VA Vernon Ehlers, MI Jo Ann H. Emerson, MO Wayne Gilchrest, MD Steve Horn, CA Steven C. LaTourette, OH Bob Ney, OH John R. Thune, SD
Democrat James L. Oberstar, MN Ranking Minority Member of the Committee Robert A. Borski, PA, Ranking Minority Member of the Subcommittee James Barcia, MI Leonard L. Boswell, IA Jay William Ross. Johnson, WI Frank R. Mascara, PA Robert Menendez, NJ Glenn Poshard, IL
Summary of Administrator Browner's Written Testimony
Superfund is a necessary program, dedicated to cleaning up our nation's hazardous waste sites.
- EPA works with other Federal agencies to assess the impacts of hazardous material releases on the public, natural resources, and the environment.
- The Clinton Administration remains committed to consensus-based, responsible, Superfund legislative reform.
- EPA has worked with this committee to craft bipartisan legislation. EPA welcomes involvement, but we need to sit down and look at where the program is today.
The Superfund program is fundamentally different and better than when the reform debate started over four years ago.
- The average duration of the long-term cleanup process has been reduced by more than one year.
- The President's FY98 budget request allows EPA to establish a new cleanup goal of 900 completions by the end of the year 2000, representing approximately two-thirds of the sites on the NPL.
- Costs of cleanups are decreasing because of reasonably anticipated future land use determinations, phased or multiple approaches to groundwater cleanups, and EPA's current policy of concentrating on principle threats at sites, not the entire site.
EPA objectives for administrative reforms 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;
- Reduce transaction costs and litigation;
- Involve local communities, States, and Tribes in decision-making;
- Promote economic redevelopment at Superfund sites.
The administrative reforms have been successful. For example:
- EPA has completed cleanups at 250 sites in the past two years;
- Review of selected remedies by the National Remedy Review Board will produce cost savings of $15-$30 million this year;
- Updating remedy decisions at certain sites will result in $280 million in future cost reductions. Sixty remedies are scheduled for review this year;
- EPA has removed over 14,000 small contributors from the liability system;
- EPA contributed $57 million to orphan share settlements in FY96;
- The Agency has created Site-Specific Interest Bearing Accounts;
- The Superfund Settlements Project, a private organization, acknowledged in December 1996 that EPA has a substantial track record since implementing the October 2, 1995 administrative reforms.
EPA has initiated reforms that promote scientifically sound, cost-effective, and consistent cleanups:
- Establishing the National Risk-Based Priority Panel in August 1995 has helped EPA direct funds to the highest priority response projects on a national basis;
- EPA has emphasized the examination of future use in remedy selection instead of cleaning up to one standard;
- The Agency's review of and updates to remedies selected in the beginning of the program is predicted to save $280 million.
The completion of 423 cleanups (as of 2/28/97) is a hallmark of the improved pace of cleanups.
- The Superfund Accelerated Cleanup Model (SACM) accelerates cleanup and risk reduction at sites by consolidating site-assessment into a one-step process.
- Time and money is being saved by using presumptive remedies for certain types of sites.
EPA is promoting fairness in enforcement so that responsible parties perform or pay for approximately 75 percent of long-term cleanups, which conserves Superfund dollars for sites where there are no viable parties.
- An orphan share compensation policy was implemented in 1996.
- Thousands of small volume waste contributors are being removed from the liability system.
- EPA is issuing unilateral administrative orders more equitably; conducting pilot projects; and reducing PRP costs through reduced oversight.
EPA is involving communities and States in decision-making.
- EPA is promoting consensus-based approaches to the remedy selection process by involving community stakeholders.
- EPA has established an Ombudsman in each Region to serve as a point of contact for stakeholders to address their concerns at sites.
- EPA is improving public access to Superfund information; encouraging State voluntary cleanup programs; and providing qualified States with an increased role in the selection of cleanup alternatives.
- The Agency plans to provide $10 million to encourage the development or enhancement of State programs that encourage private parties to voluntarily undertake early protective cleanups of less-contaminated sites.
EPA is promoting economic redevelopment.
- Brownfields reforms are directed toward empowering States, communities, and others to assess, safely clean up, and sustainably reuse sites. Two-year pilots are intended to generate further interest in brownfields redevelopment. Brownfields development is supported by the National Community Reinvestment Coalition.
- Approximately 30,000 sites have been deleted or archived from the CERCLIS inventory, which removes some unintended barriers to redevelopment at some sites. Also, EPA is allowing partial deletions of sites upon the receipt of petitions from interested parties.
- EPA is protecting prospective purchasers, lenders, and property owners from Superfund liability through prospective purchaser agreements.
EPA's goals for legislative reform are consistent with the objectives of administrative reforms. Legislative changes addressing cleanup decisions must continue to ensure that cleanups are protective of human health and the environment over the long term, and hold those who polluted responsible for cleanup.
- The Administration supports addressing statutory remedy preferences; treatment of wastes that are highly toxic and/or mobile; liability reform for de micromis parties; and creating a separate mandatory spending account for orphan share (separating orphan share from cleanup dollars).
- The technology exists to treat groundwater. Preference should not be given to treat only sources of groundwater that are currently used as drinking water sources. Selection of natural attenuation or provision of bottled water should not be the remedy of choice.
- EPA also supports discussion on the liability of municipalities and others who generated or transported municipal solid waste. Discussions on such statutory provisions should be efficient and fair.
- The issue of prospective purchasers should be addressed in order to clean up and reuse brownfield properties.
- 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.
Legislation must foster participation to increase the pace of cleanups.
- EPA would like to see Technical Assistance Grants available to citizens at non-NPL sites, in addition to NPL sites.
- EPA would like to have direct input from citizens into the development of assumptions regarding reasonably anticipated land uses.
- EPA supports the continued growth of the State and Tribal regulated and voluntary programs, which would help achieve more protective cleanups by more parties.
A fair share allocation system is important. We need to make definitions clear so that parties are not needlessly dragged through allocation. This process needs flexibility to resolve liability issues and get cleanups moving.
Incorporating future land use assumptions into remedy selection is important. A majority of cleanups (63%) have used community input to determine future land use options.
EPA does not let polluters off the hook, but some parties are unfairly tracked -- peripheral parties should be taken out of the process. Legal interpretations in the courts are largely responsible for bringing these parties into the process.