[Senate Hearing 106-980]
[From the U.S. Government Publishing Office]
S. Hrg. 106-980
SUPERFUND PROGRAM: STATUS OF CLEANUP EFFORTS
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HEARING
BEFORE THE
SUBCOMMITTEE ON SUPERFUND,
WASTE CONTROL, AND RISK ASSESSMENT
OF THE
COMMITTEE ON
ENVIRONMENT AND PUBLIC WORKS
UNITED STATES SENATE
ONE HUNDRED SIXTH CONGRESS
SECOND SESSION
__________
MARCH 21, 2000
__________
Printed for the use of the Committee on Environment and Public Works
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U.S. GOVERNMENT PRINTING OFFICE
68-413 WASHINGTON : 2001
_______________________________________________________________________
For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington, DC
20402
COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS
one hundred sixth congress, second session
BOB SMITH, New Hampshire, Chairman
JOHN W. WARNER, Virginia MAX BAUCUS, Montana
JAMES M. INHOFE, Oklahoma DANIEL PATRICK MOYNIHAN, New York
CRAIG THOMAS, Wyoming FRANK R. LAUTENBERG, New Jersey
CHRISTOPHER S. BOND, Missouri HARRY REID, Nevada
GEORGE V. VOINOVICH, Ohio BOB GRAHAM, Florida
MICHAEL D. CRAPO, Idaho JOSEPH I. LIEBERMAN, Connecticut
ROBERT F. BENNETT, Utah BARBARA BOXER, California
KAY BAILEY HUTCHISON, Texas RON WYDEN, Oregon
LINCOLN CHAFEE, Rhode Island
Dave Conover, Staff Director
Tom Sliter, Minority Staff Director
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Subcommittee on Superfund, Waste Control, and Risk Assessment
LINCOLN CHAFEE, Rhode Island, Chairman
JOHN W. WARNER, Virginia FRANK R. LAUTENBERG, New Jersey
JAMES M. INHOFE, Oklahoma DANIEL PATRICK MOYNIHAN, New York
MICHAEL D. CRAPO, Idaho BARBARA BOXER, California
C O N T E N T S
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Page
MARCH 21, 2000
OPENING STATEMENTS
Chafee, Hon. Lincoln, U.S. Senator from the State of Rhode Island 1
Crapo, Hon. Michael D., U.S. Senator from the State of Indiana... 4
Lautenberg, Hon. Frank R., U.S. Senator from the State of New
Jersey......................................................... 3
Smith, Hon. Bob, U.S. Senator from the State of New Hampshire.... 27
WITNESSES
Bollwage, J. Christian, Mayor, on behalf of the U.S. Conference
of Mayors...................................................... 21
Prepared statement........................................... 61
Responses to additional questions from:
Senator Lautenberg....................................... 66
Senator Smith............................................ 65
Fields, Tim, Jr., Assistant Administrator for Solid Waste and
Emergency Response, Environmental Protection Agency............ 6
Prepared statement........................................... 39
Responses to additional questions from Senator Boxer......... 47
Gray, Terrence, assistant director, Air, Waste, and Compliance,
Rhode Island Department of Environmental Management............ 33
Prepared statement........................................... 78
Responses to additional questions from:
Senator Lautenberg....................................... 81
Senator Smith............................................ 81
Jones, R.B., city councilman, East Palo Alto, CA, on behalf of
the National Association of Local Government Environmental
Professionals (NALGEP)......................................... 22
Prepared statement........................................... 67
Martin-Leff, Eugene, assistant attorney general, Office of the
New York State Attorney General, on behalf of the National
Association of Attorneys General............................... 35
Prepared statement........................................... 82
Responses to additional questions from Senator Smith......... 84
Schiffer, Lois J., Assistant Attorney General, Environment and
Natural Resources, Department of Justice....................... 8
Prepared statement........................................... 49
Responses to additional questions from:
Senator Boxer............................................ 60
Senator Lautenberg....................................... 57
Senator Smith............................................ 56
Varney, Bob, commissioner, New Hampshire Department of
Environmental Services, on behalf of the Environmental Council
of States...................................................... 32
Prepared statement........................................... 72
Responses to additional questions from:
Senator Lautenberg....................................... 77
Senator Smith............................................ 76
ADDITIONAL MATERIAL
Letter, National Association of Attorneys........................ 88
Minutes, National Association of Attorneys General, summer
meeting........................................................ 86
Statements:
Association of State and Territorial Solid Waste Management
Officials (ASTSWMO)........................................ 105
Department of Defense, Deputy Undersecretary for
Environmental Security, Sherri W. Goodman..................89-105
SUPERFUND PROGRAM: STATUS OF CLEANUP EFFORTS
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TUESDAY, MARCH 21, 2000
U.S. Senate,
Committee on Environment and Public Works,
Subcommittee on Superfund, Waste Control, and
Risk Assessment,
Washington, DC.
The subcommittee met, pursuant to notice, at 2:05 p.m. in
room 406, Dirksen Senate Office Building, Hon. Lincoln Chafee
(chairman of the subcommittee) presiding.
Present: Senators Chafee, Crapo, Lautenberg, and Smith [ex
officio].
OPENING STATEMENT OF HON. LINCOLN CHAFEE,
U.S. SENATOR FROM RHODE ISLAND
Senator Chafee. Today the subcommittee will hear testimony
on the current status of cleanup activities under the Superfund
program. This is my first hearing as chairman of the
Subcommittee on Superfund, Waste Control, and Risk Assessment.
I'm honored to chair this committee, which has jurisdiction
over many of the nation's laws that regulate hazardous and
solid waste.
A lofty standard has been set by the Senators who have
chaired this subcommittee in the past. The distinguished
chairman of the full committee, Senator Bob Smith, led this
subcommittee for 5 years during a critical period in the
program and is a tireless advocate for fairness and efficiency
in Superfund.
The current ranking minority member of this subcommittee,
Senator Frank Lautenberg, was chairman from 1987 until 1995 and
has been a fierce advocate for our laws governing toxic waste.
The Environment and Public Works Committee has achieved
significant progress because its members have always worked in
a bipartisan manner. Out of this cooperative spirit, Congress
enacted the Comprehensive Environmental Response Compensation
and Reliability Act of 1980. This landmark statue was enacted
only because members of this committee had the foresight to
reach across the aisle and forge bipartisan solutions to the
startling environmental problems that faced this Nation. They
knew that partisanship would be no excuse for ignoring the
discovery of toxic waste sites, such as Love Canal in New York
and the Valley of Drums in Kentucky.
Indeed, the original Senate Superfund bill was a bipartisan
effort from the beginning. The bill was cosponsored by the
chairman and ranking minority members of the full committee and
the two subcommittees with jurisdiction, including Senators
John Culver of Iowa, Ed Muskie of Maine, Robert Stafford of
Vermont, Jennings Randolph of West Virginia, Daniel Patrick
Moynihan of New York, and my father, Senator John Chafee of
Rhode Island. Four of these original cosponsors chaired the
full committee at one point in time.
As the Superfund program began to develop, we discovered
that it created incentives for litigation and it was too costly
and time-consuming.
Since 1994, this committee has debated proposals to reform
the inadequacies of Superfund. During this debate, EPA also
undertook a wide variety of administrative reforms within the
constraints of the existing statute to make the program more
efficient, more fair, and less costly.
The reforms, which I believe EPA Assistant Administrator
Tim Fields will discuss in part today, are one reason why the
nature of the debate has changed. While the program is far from
perfect, it is, frankly, a better program than the one that
existed in 1994.
Since becoming chairman of this subcommittee, I have been
visiting Rhode Island's 13 National Priority List sites to see
firsthand how the Superfund program works on the ground. Rhode
Island's NPL sites represent a good cross-section of the types
of sites found around the country. Each of Rhode Island's sites
include highly emotional issues, such as sites with
contaminated groundwater, sites with contaminated river
sediments, sites with municipal liability issues, and sites
with dioxin-contaminated soil in residential areas.
At each site I visit, I ask local officials, residents, and
responsible parties how the Federal Superfund program is
working. I must be honest: time after time I hear that EPA is
doing an outstanding job--and that is the truth. That's what
I'm hearing as I tour Rhode Island sites. I have been told that
EPA has been responsive to the concerns of local communities
and has worked hard to enhance fairness and the pace of
cleanup.
Acknowledging that today's Superfund program is different,
I would like to take a fresh look at Superfund to identify the
current status of cleanup activities, the accomplishments
achieved so far, and what improvements can be made to enhance
cleanups. In essence, I would like a snapshot of the current
program so we can make informed decisions on the course of
action to pursue.
We have two questions before us: where are we today, and
where do we go from here?
The Federal Superfund program has made significant progress
in cleaning up the Nation's worst hazardous waste sites.
According to EPA, more than 90 percent of the cleanup decisions
have been made, and more than half of all remedy construction
is deemed complete.
Potentially-responsible parties and taxpayers have spent
tens of billions of dollars cleaning up sites across our
Nation. While Superfund was originally enacted to address the
Nation's worst hazardous waste sites, today's situation is
different. Companies have made large advances in waste
management and remediation technology. State and local
governments have developed mature cleanup programs, and the
public is more involved in Superfund decisions that affect
their communities.
From here, we must focus on the parts of the program that
can be agreed on, to a certain extent, so that, in a bipartisan
basis, we can assure the worst sites are cleaned up quickly,
safely, and fairly.
It has been my experience and the experience of this
committee that progress can be made if we reach across the
aisle to craft solutions that benefit everyone. I would like to
inject that type of cooperation into the Superfund debate. I
don't believe we can succeed without it.
I look forward to working with Senator Lautenberg and all
members of this subcommittee to find solutions to the remaining
problems.
I'd like now to turn to the ranking member of the
subcommittee, Senator Lautenberg, for his opening statement.
OPENING STATEMENT OF HON. FRANK R. LAUTENBERG,
U.S. SENATOR FROM THE STATE OF NEW JERSEY
Senator Lautenberg. Thank you, Mr. Chairman. I congratulate
you for kicking off this hearing today. This has been a
lingering problem, an opportunity for us dealing with
Superfund, and I must say that your father was a great leader
of this subcommittee and the committee and we worked
cooperatively together. I thank you for mentioning my tenure as
chairman. I look back longingly at those days.
[Laughter.]
Senator Lautenberg. I have since that time, and almost all
of my service in the Senate, I have been very involved in many
proposals for Superfund legislation, going back to the
successful reauthorization of the program in 1986 and the
legislation in the 103d Congress which came very close to
passing.
I've also been watching the program, itself, and am pleased
at the progress it has made, as you noted. Just about half of
the Superfund sites still named on the national priorities list
are completely cleaned up, and final cleanup plans have been
approved for more than 1,000 other sites. Over 90 percent of
the sites on the National Priorities List have cleanups
underway or completed. Superfund has been particularly
effective in moving quickly to eliminate the most dangerous
threats to the public. The program has performed about 6,000
emergency removals of hazardous waste sites, each one potential
serious health risk.
I daresay there have been advances in getting settlements
to have the responsible parties perform the work and reducing
litigation.
In this era of the declining Federal expenditures, it has
been more important than ever that those responsible for the
contamination pay for the cleaning up and stretch Superfund
dollars to cover as many abandoned sites as possible.
Since 1992, 70 percent of all cleanups have been performed
by responsible parties. Those are really encouraging advances,
and I'm looking forward to hearing what today's witnesses will
have to say on the progress that has been made cleaning up
specific sites in their areas.
Now that Superfund is really hitting its stride, we need to
keep that momentum going, and I want to encourage suggestions
on how we can accomplish that.
One area that I am very interested in taking action on is
brownfields, and I particularly look forward to hearing from
our witnesses on their views of brownfields and whether they
feel that it is a helpful program or could be energized.
I also want to note that this is a significant occasion,
Senator Chafee's first hearing as chairman of this
subcommittee. It is quite appropriate, again, considering the
history of the Chafee family in the environmental issues, and I
look forward to working with him and other members of the
subcommittee.
I have been very encouraged by Senator Chafee's interest in
working toward legislation which could be enacted into law and
hope that this hearing is just the first step in a productive
year working together on bipartisan projects.
I'm looking forward to hearing from our distinguished
witnesses today and note that they include a mayor from my home
State, the mayor of Elizabeth, NJ, Mayor Bollwage. He's in his
seventh year as mayor of Elizabeth, the fourth-largest city in
New Jersey. It is a city, also, that I frequented as a small
child. Mayor Bollwage has been very involved in projects that
reuse contaminated land very successfully, including a mega-
mall being built on the site of a former municipal landfill.
Mayor Bollwage was also cochair of the Conference of
Mayors' Brownfields Task Force last year, and he has worked
with other cities to encourage the development of abandoned,
contaminated properties across the country, properties that
will become a major source of new jobs and new life for our
inner cities, thanks to his vision and people like himself.
So I welcome all of you to this hearing. This is probably
the last of my tenure as U.S. Senator, and certainly it is
important for me to be able to hear from these witnesses, many
of whom have become friends because we've worked together over
the years, and to know that it is still possible for a lame
duck to fly. We want to get something done.
Thank you very much, Mr. Chairman.
Senator Chafee. Thank you, Senator Lautenberg.
Senator Michael Crapo.
OPENING STATEMENT OF HON. MICHAEL D. CRAPO,
U.S. SENATOR FROM THE STATE OF INDIANA
Senator Crapo. Thank you, Mr. Chairman. I also appreciate
your taking the time and focusing your energy on this and
holding this hearing today.
You indicated you wanted to take a fresh look at Superfund,
and I think that that would be a very helpful thing for us on
the committee.
I have been working on this issue since I first was elected
to the House of Representatives about 7\1/2\ years ago, and it
has been interesting to listen to the dialog on Superfund. At
that time, I don't think there was anybody--at least in
Congress, maybe not throughout most of America--who disagreed
that Superfund was a failed statute and that it was not
working. I don't know if I can speak for everybody, because I
haven't talked with Senator Lautenberg about his perspective
back there 6, 7, or 8 years ago, but we had pretty significant
consensus across the board that we needed comprehensive reform
of the Superfund statute at that point in time. Yet we're not
able to find, as has been the case with so many other statutes,
like the Endangered Species Act and others, that solution that
could get bipartisan support and get the signature of the
President.
Since that time, I know there have been efforts to focus on
Superfund to try to administratively solve some of the
problems, but, frankly, as I look at it now, 7\1/2\ years later
from when it started with me here on Capitol Hill, I still see
the significant need for reform in all the major parts of the
statute--the remedy, the liability, and, as probably most of
those here know from me, the natural resource damages aspect of
the Superfund issue.
I appreciate the chance to try to create a snapshot of what
is happening under the Superfund statute, but as we create that
snapshot I hope that we try to do so as accurately as we can to
identify those areas where we think we can find agreement to
move forward. Those areas of easily achieved reforms should not
replace the more vigorous efforts to reform the statute.
In that context, I'm confident that we can identify the
areas of work to be done on Superfund. We've done a lot of work
on that. What will remain to be seen is whether we can identify
the consensus and create an opportunity to move forward with a
comprehensive reform.
Natural resource damages is, as I said, a very important
aspect of the entire issue, which I know is one of the most
difficult, if not the most difficult, aspect of the issue to
find consensus on. But, nevertheless, I remain convinced that
if we do not find consensus there we will not be able to craft
a bill that will necessarily bring us to the kinds of reforms
that are necessary in this area.
So I appreciate once again the chairman's emphasis on this
issue and his early attention to it. It is going to take early
and strong attention to all of these issues if we are to craft
legislation that will move into law.
Thank you.
Senator Chafee. Thank you, Senator Crapo.
Our first panel includes representatives from the Federal
Government. Testifying today on behalf of the Administration is
Mr. Tim Fields, Assistant Administrator of EPA's Office of
Solid Waste and Emergency Response; and Ms. Lois Schiffer,
Assistant Attorney General for Environment and Natural
Resources.
I would ask that each limit their testimony to 5 minutes.
Without objection, your entire written statements will be
included in the hearing record.
I would like to hold questions until each witness has
provided their testimony, after which each committee member
will have 5 minutes to question the panel.
Welcome, Mr. Fields. Would you like to kick off?
STATEMENT OF TIM FIELDS, JR., ASSISTANT ADMINISTRATOR FOR SOLID
WASTE AND EMERGENCY RESPONSE, ENVIRONMENTAL PROTECTION AGENCY
Mr. Fields. Thank you, Mr. Chairman.
We are very pleased to be here this afternoon. I'm pleased
to be here with Lois Schiffer, the assistant attorney general
for the Department of Justice. We hope to communicate to you
about the progress in the program and where we would like to
work with this committee on target legislative reform.
We are very pleased to hear about the progress of the
Superfund program in Rhode Island, and we welcome you, Mr.
Chairman, to your role, a very important role in the
legislative agenda around Superfund, brownfields, and other
legislative arenas surrounding the environment. We look forward
to working with you and this subcommittee this year.
I want to thank you for inviting us to talk about the
status of the Superfund program, and also for scheduling this
hearing in a way that would accommodate our travel schedules.
I'm pleased to say the Superfund program has become in many
States a real success story, as you indicated in Rhode Island,
and we've seen that success replicated in many other parts of
the country. More than three times as many Superfund sites have
achieved construction and completion in the past 7 years than
in the first 12 years of the program combined. By the end of
the 106th Congress, this Congress we are in now, we will have
completed construction of more than 60 percent of the non-
Federal Superfund sites on the list. More than 92 percent of
the sites, therefore, are in construction or have had
construction completed. We think that is a major success story,
along with the emergency response activities and the removal of
many sites from the Superfund inventory over the last 7 years.
Also over the last 7 years we have worked diligently to
make administrative reforms to make this program work better.
As a result, the cost of cleanup has been reduced by 20
percent, and the time it takes to go through the process has
been reduced by 20 percent.
More than 3 years ago, we were doing, on the average, 65
construction completions a year. For the last 3 years, we've
done 85 or more construction completions, and that's because of
the administrative reforms which allow us to do things faster
and more efficiently.
We've also done tremendous work in the enforcement and
fairness arena, removing many thousands of small parties
through de minimis settlements, offering often share funding,
and having an aggressive enforcement program, where 70 percent
of the cleanups are being done by responsible parties.
Also, I want to mention briefly the brownfields initiative,
which was announced about 5 years ago. Through that initiative,
we have been involved in the assessment of more than 1,600
sites. We have cleaned up more than 150 properties, and we have
redeveloped more than 150 others. That initiative has also
resulted in the awarding of more than 300 grants to cities
across America, the creation of almost 6,000 jobs, and
leveraged redevelopment and cleanup dollars in excess of $1.8
billion. We think that's a major success story, as well.
I want to close my brief remarks by touching upon an area
that we think is particularly important for all of us who have
been involved in this debate for more than 7 years. We spent
many hours with this committee, with your staff, and members of
the Administration working on developing some consensus around
Superfund legislation. The Administration strongly believes
that the Superfund program has been fundamentally improved
through the administrative reforms that we have all talked
about. Not only does today's program not need comprehensive
reform, but enacting widespread changes to how cleanups are
chosen and constructed and implementing widespread changes to
how 70 percent of the cleanups are being done by responsible
parties through the current liability system would surely
result in cleanup delays and generate new waves, we believe, of
costly litigation.
I suggest that we work together on issues that have
generated broad bipartisan consensus. I believe we share the
same goal: to promote the cleanup and economic redevelopment of
many thousands of brownfield properties throughout this Nation.
I was encouraged to hear February 23, at our budget
hearing, that Chairman Smith has indicated his support for
brownfields legislation, as well. The Administration would
welcome the opportunity to work with this subcommittee and
committee members across the Senate EPW to pass bipartisan
brownfields legislation this year. We believe that legislation
should include provisions that provide funding for brownfields
grants and revolving loans, liability protection for
prospective purchases, contiguous property owners and innocent
landowners, and support for effective voluntary cleanup
programs. However, we believe strongly that the Federal safety
net must be preserved to address circumstances which may
present an imminent and substantial endangerment.
Some, if not all, of these provisions have been embodied in
legislative proposals in the past couple of years, such as
Senate bill 20 and House bill 1750. In the first session of
this Congress in an effort to get brownfields legislation
enacted, we backed a last-minute compromise supported by the
National Association of Homebuilders.
Whatever the legislative proposals, we are willing to work
with this subcommittee and you, Mr. Chairman, and other
interests to develop targeted bipartisan brownfields
legislation that meets our mutual goals. We believe the major
brownfields legislative proposals being discussed are
sufficiently similar to provide the basis for a consensus bill
that can be enacted this year.
I thank you, Mr. Chairman, and this subcommittee for
providing the opportunity to discuss the current status of the
Superfund program and the current status of the Brownfields
program. We look forward to working with you on appropriate
legislative proposals to further these improvements through
joint action of this Congress and the Administration.
Thank you all very much.
Senator Chafee. Thank you, Mr. Fields.
Ms. Schiffer, welcome.
STATEMENT OF LOIS J. SCHIFFER, ASSISTANT ATTORNEY GENERAL,
ENVIRONMENT AND NATURAL RESOURCES, DEPARTMENT OF JUSTICE
Ms. Schiffer. Thank you, Senator Chafee, Senator
Lautenberg, Senator Crapo. Thank you for giving me the
opportunity to testify today about the Superfund program. It is
an honor to be here for Senator Chafee's first hearing and
Senator Lautenberg's last hearing, and I appreciate the
bipartisan approach, Senator Chafee, that you are taking to
this.
The Superfund program today is vastly improved and is
working effectively to clean up sites and, in many cases,
return them to productive use, as well as to deter new
contamination. Today, I will focus on three points about the
program.
First, the administrative reforms put in place over the
past 6 years by EPA and the Department of Justice have worked
to clean up sites and resolve liability issues in a fairer,
faster, more efficient manner.
Second, on the enforcement side, the program has been
predominantly a settlement program, and alternative dispute
resolution has been a strong tool in our kit to make that
happen.
Third, brownfields redevelopment, so important to assure
the productive reuse and community renewal in our inner cities,
is making dramatic forward strides in this program.
First, administrative reforms--you've heard from Assistant
Administrator Fields, with whom I am pleased to share the
panel, about a number of these reforms on the program side. In
enforcement, where we seek to have liable companies and
individuals who contribute to the pollution either clean up or
pay for cleanup, we've used administrative reforms, as well,
with the goal of encouraging quick resolution and settlements.
These include enhanced small contributor settlements, which we
call de micromis and de minimis settlements; use of more
Federal money, including so-called ``orphan share'' money,
mixed funding settlements and mixed work settlements to
facilitate resolution of cases; municipal waste settlement
policy implementation; and vigorously pursuing non-settlers so
that settlers are actually rewarded.
What are some examples?
De micromis parties have contributed minuscule amounts of
waste to a site. They should not be brought into the Superfund
system, and our approach has been to announce that clearly, to
take steps to discourage other PRPs from suing de micromis
contributors, and when they do get sued, to settle with them
quickly for no money so they will have protection from other
suits.
The plan has worked effectively to discourage companies
from using a phone book to decide whom to sue.
An example is the Petrochem/Ekotek site in Utah, where the
major PRPs threatened to sue hundreds of de micromis parties if
they did not accept the majors' settlement terms.
EPA took out radio and newspaper advertisements to
discourage de micromis PRPs from taking the majors' demands,
and the Justice Department sought a hearing before the district
court so he could discourage the majors from their course. It
worked, and the majors withdrew their demand against the de
micromis parties.
At the Bypass 601 Superfund site in North Carolina, we gave
contribution protection for no money to 2,400 tiny contributors
so they would be out of the system.
The mere fact that we will protect de micromis parties has
deterred most contributors from seeking to sue them.
On the money side, we have used not only EPA's orphan share
policy and mixed work and mixed funding policies to achieve a
fair allocation of cost at a site, but, where appropriate, our
own Department of Justice settlement authority to assure that,
under all the facts and circumstances of a case, a party pays a
fair allocation of costs. This approach has helped assure that
we resolve liability and allocation issues by settlement, at
the same time reducing litigation and litigation costs
substantially.
Also, when we settle with some parties at a site, we
actively pursue the non-settlers, so in the next case down the
road PRPs understand they are better off settling than hanging
out.
Two examples of companies that paid far more because they
did not settle first are Shell at the Fike Artel site in West
Virginia and Hercules and Uniroyal Chemical of Canada at the
Vertac site in Arkansas.
Second, we are pressing settlements through appropriate use
of alternative dispute resolution, predominantly with well-
trained and experienced mediators. This is part of a commitment
by Attorney General Janet Reno and me and the Department of
Justice to use ADR when appropriate to settle instead of
litigate, though I always hasten to add that we get settlements
because we have the ability, will, and talent to litigate, if
necessary.
We have mediated a good resolution at the Landfill and
Resource Recovery Superfund site in Rhode Island, with the help
of a Federal district court judge as mediator, and just this
past month a superb settlement at the Auburn Road Landfill
Superfund site in Londonderry, NH.
Third, brownfields--cleaning up and recycling these old
industrial and contaminated areas for reuse is a major step to
reinvigorating our cities and communities. Our work furthers
brownfields redevelopment in a number of ways--and I'll get
quickly to the end.
For example, a number of our regular Superfund cleanups are
in inner cities. We also obtain brownfields supplemental
environmental projects when we enforce the other pollution
statutes.
Using our Department of Justice settlement authority, we
also work with EPA to enter into prospective purchaser
agreements to provide those who purchase all or parts of sites
of Federal interest for redevelopment and who had no prior
involvement with the contamination, with assurance we will not
pursue them for past contamination.
Using this authority, we've had a number of successes at
getting former inner city sites recycled.
What about legislation to speed brownfields developments?
This is my last point. In February, the U.S. Conference of
Mayors issued a report stressing that lack of funds is the No.
1 obstacle to cleanup and reuse of brownfields sites. We urge
you to appropriate the money EPA requests for its brownfields
program to address that.
We also note that several years ago people complained that
lenders were not lending in these areas, and we supported the
passage of the lender liability provisions of the Act to remove
that problem, and that provision is in place.
If there is further legislation, it should include four key
provisions: first, liability relief for qualified prospective
purchasers, innocent landowners, and contiguous property
owners; second, ensuring that State cleanup programs to which
deference is given are well-qualified, with adequate remedy
selection and good opportunity for public participation; third,
inclusion only of non-NPL-caliber sites; and, fourth,
guaranteeing a Federal safety net through assuring Federal
authority to respond to imminent and substantial endangerment
to public health and the environment.
Thank you for the opportunity to speak today.
Senator Chafee. Thank you very much, Ms. Schiffer.
I guess I'll ask the first question.
We've heard much praise for the administrative reforms that
EPA has undertaken, and I personally can say that, even from
responsible parties, I met with one national entity that has
done $500 million worth of Superfund cleanups across the
country, some at Thoms River in New Jersey and all over the
United States, $500 million, and they had praise for EPA. I
asked them, ``What do you think of how the process is
working?'' And yes, they said it was difficult in the beginning
with lawsuits and litigation, but now everybody understands
their role and is undertaking it, and they do give credit to
EPA.
It was interesting. I would tell you if I heard
differently.
However, of course, I think Senator Crapo was talking about
the more controversial elements that still exist, and I'd like
to ask, Mr. Fields, can you make the same administrative
reforms in the natural resources damages area of the Superfund
that you have in other parts of the legislation that would take
out some of the more-controversial elements of the bill?
Mr. Fields. I understand Senator Crapo's point, Mr.
Chairman, about wanting to address other areas. What I would
suggest is that we work in the 106th Congress with the time we
have remaining, which is a precious amount of time we do have
remaining, and try to reach consensus on those things we can
agree on.
I think we can achieve bipartisan agreement on brownfields
provisions along the areas that Ms. Schiffer and I just
mentioned, around liability relief, brownfields funding, and a
State infrastructure that retains a Federal safety net. I think
those are elements that we are going to have Republican and
Democratic agreement on.
I think that some other issues that people want to engage
in dialog about in the legislative arena, like natural resource
damages or remedy reform, are things that we will not be able
to get bipartisan agreement on and be able to get enacted in
the 106th Congress.
So I think that is not going to be a very fruitful--I think
that is something that could be taken up in subsequent
Congresses, but not this Congress. I think we should try to
reach agreement now and move forward on an area that we can
reach agreement on, which is the brownfields arena.
I do agree, and we have been trying to work within the
Administration to look at what reforms we might make to natural
resource damages to make the process work better. We've had an
inter-agency group looking at how we can better coordinate
response activities and natural resource damage activities at a
site so they are better coordinated. We avoid the perception of
two bites at the apple. That effort is going on to look at what
reforms we can make, what improvements we can make in terms of
how natural resource damages are administered.
So we will be happy to explore that. I don't know, until we
have further dialog, whether any reforms are going to be able
to adequately address, you know, the concerns that Senator
Crapo or others may have about natural resource damages, but I
don't think that is an area that we can reach consensus on
legislatively in this Congress. We are always willing to
explore and consider additional administrative reforms that we
can make to help improve the program in that area, as well.
Senator Chafee. Thank you, Mr. Fields.
Ms. Schiffer, maybe speak, if you could, to specifics of
the administrative reforms you might undertake in the NRD area.
Ms. Schiffer. I would be pleased to, Senator Chafee,
because actually some administrative reforms have been
undertaken in the natural resource damages area.
As I'm sure the committee is aware, the lead agencies in
natural resource damages are really the Departments of Interior
and NOAA, which is part of the Commerce Department, as well as
other land management agencies, like the Department of
Agriculture and the Department of Defense that have the
resources that may well get damaged.
We've worked closely with those agencies. For example, the
Department of the Interior and NOAA have come out with new
natural resource damages regulations which are essentially
focused on restoration and what it takes to restore the
resource, rather than a very complicated economic analysis.
That has gone a long way toward helping make damage assessments
and approaches on damages an easier thing.
In addition, in a number of cases, particularly ones where
natural resource damages aren't the biggest element of the
cleanup, we've tried to work with the natural resource damages
agencies to see if we can't settle out the natural resource
damages issues and amounts at the same time as we settle out
the cleanup part of the case. So there have been steps.
In addition, all of these agencies are now working much
more cooperatively together, including with EPA, as Mr. Fields
indicated, and that's very helpful to coordinating the natural
resource damages component and the cleanup component.
I can probably give you one example that is a very good
one, and that is a case I actually worked on myself. The
Housatonic River that runs through western Massachusetts and
Connecticut, was a river that had been heavily contaminated
with PCBs, in part because there was a General Electric
manufacturing facility at Pittsfield. We recently entered into
a very substantial settlement with General Electric which
includes both the Superfund part of the cleanup and payments
for natural resource damages, which will be used in a series of
projects by the Federal agencies and the State of Massachusetts
and the State of Connecticut resource agencies to help address
the natural resource damages matters, as well as the cleanup.
So a number of administrative reforms have been undertaken,
and, of course, we are pleased to look to see if there are
further ones, as well.
Senator Chafee. Very good. Thank you again.
Senator Lautenberg.
Senator Lautenberg. Thanks, Mr. Chairman.
It is good to hear the reports from our witnesses, who are
both very knowledgeable, each person very knowledgeable and has
worked with Superfund and these programs for a long time.
I would ask Mr. Fields, Senator Crapo mentioned that a view
of Superfund some years ago was quite different than that which
I expressed today if we go back to 1993, and now the program is
fundamentally different.
What would you say was the principal reason for the
improvements in the program, whether they be administrative or
functional reforms that have taken place?
Mr. Fields. I think that when the President came in, as you
know, he expressed a view that Superfund was broken, that it
needed to be fixed, and----
Senator Lautenberg. I heard it.
Mr. Fields [continuing]. That was in one of his very first
State of the Union Addresses, as you know.
We were all given a mandate to aggressively look at what we
could do under current law to fix this program.
The complaints were numerous, as you know: it takes too
long, too costly, not fair. And so we looked into all those
areas of concern being expressed by various stakeholders in the
program, including Members of Congress, and we aggressively
began three rounds of reforms in 1993 and two more in 1995 in
February, and then October, 1995, and the Superfund
redevelopment initiative last year. We are continually trying
to find ways we can reform the program.
I think, as the chairman said earlier, even members of
industry who were making some of the same complaints are
acknowledging that the reforms have had an impact, we have
substantially reduced the cost. The updating remedies reform
has saved $1.4 billion in the cost of remedies over the last 4
years. We have, through the Remedy Review Board, saved more
than $70 million in looking at more than 30 remedies, how we
could do it more efficiently and use new science and
technology.
So I think there has been an aggressive effort to look at,
in the current statute, how we can save dollars, how we can
work faster, how we can be more fair to all the parties
involved in this program, yet do an effective and aggressive
job of cleanup.
That mandate has come from the Administration. It has been,
obviously, encouraged by Members of Congress, who have made
clear that they wanted the program to be improved, as well as
many other stakeholders. I think, working together with
Department of Justice and others, we have made some substantial
improvements, but I think we were very clearly given marching
orders in 1993 that Superfund was a high priority for focus,
aggressive change, and I think the Administration has stepped
up to the plate and taken that effort seriously.
Senator Lautenberg. What part of the improvement do you
think came as a result of a clear understanding by the
responsible parties, by industry, generally, that this was not
simply a ``pick on business'' program; that this was a program
that we encouraged resolution for?
And I would have to say--Ms. Schiffer you were in the
middle of so many of these things, and so active in those days.
What percentage improvement, if one could gauge--how much money
do you think was saved as a result of the fact that we got down
to serious settlement discussions? You said 70 percent of the
cleanups were paid for by responsible parties. Do you have some
estimate as to what it is that got this pace so rapid and so
satisfactory that people from industry are saying, ``Hey,
they're not bad after all''?
Mr. Fields. I'll let Ms. Schiffer address the reasons why.
I can tell you, overall, that $16 billion in settlements has
been achieved, through $13 billion plus in settlements from
responsible parties, $2.5 billion in cost recoveries have been
achieved. That's $16 billion that the taxpayers are not paying,
and that is, obviously, telling us that responsible parties
recognize that they are a major player in Superfund and want to
be a contributor to the cost of this program. That's a major
investment and I think is reflective of the fact that, like
you're saying, responsible parties see a need and are willing
to aggressively and more effectively participate in cleanups
across the country.
Ms. Schiffer. I think it was no one silver bullet, Senator
Lautenberg. I think it was the commitment that Mr. Fields has
underscored to try to make the program actually work in an
effective manner, and then a whole series of different steps,
each of them really worked on and carried out in an effective
way, that gave industry some assurance that they were going to
be treated fairly, that there was going to be an effort to
settle rather than to chew up their money in litigation costs,
and that there would be some consistency in the approaches that
we were taking, that we would use the money we had to encourage
settlements and to encourage them fairly, and that we really
meant it about the fact that the so-called ``enforcement
first''--that is, getting industry to do the cleanups--was an
effective way to do it.
I think there was pretty universal agreement that if
industry could do the cleanups they could do them faster and
cheaper, and that that was a worthwhile approach.
But I think it was the whole collection of different steps
that we took that really helped to move this program along
effectively.
Senator Lautenberg. Mr. Chairman, if I might, I would ask
one more question. There are questions for the record I'd like
to submit.
Very briefly, under EPA's current brownfields initiative,
there are some almost 1,700 properties that have been assessed,
116 have been cleaned up, 150 of them redeveloped, and almost
600 properties were found not to need additional cleanup.
So this is really good news, and I'd like to see more of
this, more of the cleanup and reuse.
What do you think we might do legislatively to help you at
these types of sites? Is it more funding? What is it that is
needed to really get this program to the place that we'd like
to see it?
Mr. Fields. I think that the brownfields initiative and the
improvements that are being achieved over the last 5 years have
been primarily through policy changes, working with the
Department of Justice and ourselves on new guidance on
prospective purchaser agreements, and comfort status letters.
That has provided some clarity and has encouraged people to get
involved in brownfields transactions.
But I think that Congress can really help us by passing
legislation that provides liability relief for these parties--
innocent landowners, contiguous property owners, prospective
purchasers--and avoid and make more clear than policies could
that those people have liability relief, provide a clear
statutory mandate for funding of brownfields assessment grants,
for revolving loan funds. Those kind of legislative changes we
believe would allow the brownfields program to work even more
effectively, and we could do an even more effective job with a
clearer congressional mandate than we could with the current
situation where we are operating under Government policies.
Senator Lautenberg. Thank you.
Thanks, Mr. Chairman.
Senator Chafee. Thank you, Senator Lautenberg.
Senator Crapo.
Senator Crapo. Thank you, Mr. Chairman.
Will we have just one round of questions for this panel?
Senator Chafee. I'm willing to have as many as you'd like.
Senator Crapo. OK. Thank you.
First of all, Mr. Fields, following up on your answer to
the questions you've already been asked with regard to finding
consensus on whether we can move forward this year, you
indicated, if I understood your answer with regard to NRD
correctly, basically, you have stated that you do not believe
we can find consensus this year and that further dialog may be
possible, but that there would be no consensus on NRD reforms
this year; is that right?
Mr. Fields. I believe that is correct. I believe this is an
area that we can have further dialog on. We should talk about
it as much as this subcommittee wants to discuss this topic. I
don't believe that's an area that we're going to be able to
achieve a consensus on and get done in the year 2000.
Senator Crapo. And you've identified brownfields as one
area where perhaps consensus could be found?
Mr. Fields. Yes, sir.
Senator Crapo. Are there any other areas where consensus
could be found?
Mr. Fields. Well, we think that the--well, another area the
Administration has supported is liability relief for small
municipal generators and transporters--you know, generators and
transporters of trash and garbage. That is an area that we've
also said that we believe there could be some bipartisan
agreement on and we would support, so that's another area that
we would--it's not a brownfields directly, but it does benefit
small businesses and others through that type of liability
relief. That is another area that we would throw in there.
Senator Crapo. Any others that you are aware of?
Mr. Fields. Nothing else--well, no, nothing else comes
immediately to mind. Obviously, the President has requested for
the last 3 years now that we would love to have the Superfund
taxes reinstated.
Senator Crapo. I was going to get to that.
Mr. Fields. OK.
Senator Crapo. So, basically, if I understand your----
Mr. Fields. I'm sure Ms. Schiffer has other areas that
she----
Senator Crapo. I'll get there, but let me follow this up
for a minute.
Mr. Fields. Right.
Senator Crapo. If I understand your answer correctly, then,
the two areas you identified may be something that the
Administration would be willing to explore as areas where
piecemeal legislation could move this year, but other areas,
other than taxes, no?
Mr. Fields. Right. I think there are other areas we could
discuss, whether it be natural resource damages, remedy, but I
don't think those areas are going to achieve a bipartisan
consensus.
There are many other areas in Superfund, obviously, that
you can have a dialog about, but I'm trying to identify those
that I believe a bipartisan consensus could be achieved and we
can move forward with getting something that the President
could sign this year.
Senator Crapo. Do you believe that if we were to go ahead
with the plan you just proposed, or the approach you just
proposed, and pass the couple of reforms that you said we might
be able to find consensus on, do you think if you were here
before me next year that you would say we could find consensus
on NRD?
Mr. Fields. I would not--what I would be saying would be--
and I would presume that, as Chairman Chafee said, there are
areas that a dialog could begin on this year, including NRD or
other areas that this subcommittee may choose. I don't know. It
depends, Senator Crapo, on what sort of progress was made
during that dialog and what particularly you wanted to be
modified regarding NRD and whether or not there could be some
consensus among a variety of stakeholders on those changes.
I know we cannot achieve consensus this year. Whether we
can achieve consensus during the 107th Congress during a 2-year
stretch of time where there is some aggressive dialog on a
particular topic, that might be possible. But right now I'm
just giving you my honest view regarding what we can achieve
this year. Obviously, concerning NRD there can be some dialog
beginning this year to tee up some issues for the 107th
Congress to discuss further.
Senator Crapo. You've talked about a limited carve-out of
liability for certain trash disposal functions and so forth.
Would you support any broader carve-outs of liability for any
other groups?
Mr. Fields. Nothing else comes immediately to mind.
Obviously, last year, as you know, Congress enacted recycling
legislation. As Ms. Schiffer indicated, a few years back lender
liability legislation was enacted, so obviously piecemeal
legislation has been enacted in the past, but----
Senator Crapo. Well, at what point is the Administration
going to say, if you keep carving out or adding piecemeal
legislation into the reforms, that we need to get the taxes
involved?
Mr. Fields. Well, I think that--your last part of the
question, I'll come back to that one--but we believe that
Congress ought to move forward with the Administration on those
things that we can reach agreement on. We recognize there are
other issues in Superfund where there is not agreement. I
believe we should continue to have dialog about those issues
with Members of Congress and see if there could be some
bipartisan consensus achieved on those areas, as well. But
right now we think we have a golden opportunity where
brownfields is an area that we believe that there can be
bipartisan consensus with the Congress and the Administration
and enact some legislation that could help the cities, the
mayors, developers, and many other parties across America.
Senator Crapo. Well, Mr. Fields, I guess the----
Senator Chafee. Senator Crapo, could we have one more round
and come back?
Senator Crapo. Sure. All right. I'll come back.
Senator Chafee. Remember your question.
Senator Crapo. OK.
Senator Chafee. OK. From my perspective, having seen that
50 percent of the NPL sites are construction complete, one of
the issues I'm sure is that wouldn't it be unfair to change the
parameters for those responsible parties this late in the game?
Ms. Schiffer talked about Husatonic River and the involvement
there of natural resource damages and what has been
accomplished on the existing legislation. Would it then be fair
to change it?
But I'll yield the rest of my time to Ms. Schiffer to
answer some of Senator Crapo's concerns.
Ms. Schiffer. Thank you, Senator Chafee.
I do think, Senator Crapo, that the questions that you
raise really have to be looked at in the context of where the
program is now, and we think that the program is working pretty
well. As Senator Chafee said, when he went home and talked to
his constituents, they seemed to think the program was working
pretty well. So this Administration certainly no longer
supports comprehensive reform to this program.
One of the reasons, in addition to the fact that the
program is working pretty well, is the reason Senator Chafee
gave--there has come to be a set of expectations. Many
companies have now stepped up to the plate and undertaken
cleanups.
To say, in effect, to those companies, ``Well, it wasn't
such a smart thing for you to step up to the plate and
undertake cleanups, because these people who didn't do so now
may be given some liability relief,'' we don't think is a very
effective way to run a program and certainly isn't a very
effective way to say to the companies that have done a good
job, ``You've done a good job.''
So we really look at the questions about what other pieces
of legislation there should be in the context of the fact that
we don't think the program needs comprehensive reform any more.
I think Mr. Fields has accurately stated the areas where
the Administration might look at liability relief. They are
very narrow and tailored. Really, the municipal policies that
he is talking about would be a codification of the municipal
solid waste policy that we adopted. That was a policy where we
saw that there was a problem in the program, there was concern
about municipal solid waste. We worked with those groups that
were knowledgeable about it, a series of organizations. We came
up with a policy we thought was fair and effective and we put
it into place. That was the kind of way that we were trying to
undertake administrative reforms.
But, in terms of comprehensive reform at this point,
including a lot of additional liability carve-outs, we really
think that that would make the program less fair, not more
fair.
In terms of the tax, we think the tax is ready for
reauthorization now, not that it should be pegged to other
changes in the program. Really, what we have is a circumstance
where, since the tax lapsed 4 years ago, almost 5 years ago, we
have had companies who would have been paying tax under the
petrochemical tax and other tax components basically getting a
windfall. They aren't paying taxes to fund this program any
more. And it really is a hit on the American taxpayer that is
more appropriately born by those people who should be paying
the tax.
Senator Chafee. Senator Lautenberg.
Senator Lautenberg. Yes. One of the things that I think
Senator Crapo's questions bring us to is the fact--and he has
long experience with this, with Superfund, and has a particular
perspective on it, and I respect his inquiry and the answers
that you've given. In terms of what direction the outcomes
might be for passing legislation, etc., I respectfully suggest
that those answers have to come from this side of the table,
not from that side of the table.
Mr. Field, don't walk too far into that mine field because
we are--among us, we will establish some dialog, and so forth.
I know EPA and Justice Department are always ready to
answer questions, to participate in the dialog or discussion as
to why a program is or isn't working, so I think that the
answers that you gave are those responsible.
It is obvious that we want to have something that meets the
bipartisan test. It is possible. We want to have something that
continues the best parts of the program without getting into a
discussion that might degrade what it is that we are about to
do.
So I think it has been very positive. The tax question is
one that would take a lot of debate. The taxpayers have picked
up what the polluters used to pay, or that the potential
polluters used to pay. The possibility that that could be
removed kept us from coming, very often, to a conclusion with
positive programming or reprogramming, as the case may be.
So program A has been successful, B ought to be reviewed to
see if there are any improvements that we can make, and C, not
lay down any conditions that we can ask EPA or representatives
to really make judgments upon unless we discuss them here at
hearings and so forth, or even in closed discussions.
So I think, Mr. Chairman, it has been very positive, and
I'm pleased that our witnesses were able to be with us today.
Senator Chafee. Thank you.
I'll allow Senator Crapo one more round, to be fair.
Senator Crapo. Thank you, Mr. Chairman.
I can't get through even close to all my questions in one
more round, but I'll try to do what I can.
Senator Chafee. We have another panel, also.
Senator Lautenberg. I thought in your part of the country
roundups are quick and easy.
Senator Crapo. They're tough and dirty.
[Laughter.]
Senator Crapo. I think, though, that on the question that I
was getting at, that Ms. Schiffer gave an answer as to what was
my understanding, basically, of the Administration's position;
namely, that the Administration, I have understood, did not
support comprehensive reform of the Superfund statute and has
not for some time, except for some of the targeted reforms that
you've described here as narrow and tailored reforms that would
be supported.
My point there is that, even though it is correct that we
pass the laws here, I learned a long time ago that, as we try
to pass laws that are going to get signed into law, it is
helpful to work with the Administration and to find out what
the Administration is going to recommend the President sign.
I think that it is pretty important for us to understand
that process, as it has evolved in the Superfund.
In that context, I just have one other question on this
line, and that is, with regard to the issue of taxes, is it the
intention of the Administration to push for a reauthorization
of the taxes this year?
Mr. Fields. Well, the President has expressed his
preference for the taxes to be reinstated, both the corporate
environmental as well as the taxes on petroleum and chemical
feed stocks. However, we recognize that Congress has not
approved that request for the last 3 years.
Right now, the current tax fund trust fund balance will
expire or it will have $200 million left in it at the end of
fiscal year 2001, and so, obviously, that is going to be a
major issue in fiscal year 2002.
The current balance will carry us through this year and
next year.
Senator Crapo. So will there be a request this year or a
push this year?
Mr. Fields. Well, there is a request in the President's
budget. The President's budget that came up to Congress in
February did request that the taxes be reinstated. Yes, sir.
Senator Crapo. Would the reinstatement of taxes possibly be
attached as a condition to brownfields legislation?
Mr. Fields. We have not discussed that internally. That's
not something we have been pushing. You know, the President has
a request up here outstanding. We have been suggesting, and,
obviously, as Senator Lautenberg reminds us, Senators and
Members of the House of Representatives will have to decide
what the scope of that legislation will be. We will review
that, and we, obviously, will respond accordingly. We have not
yet decided how we tie tax reinstatement to a possible
agreement on brownfields. That's something we would look at in
the context of what legislation is introduced.
Senator Crapo. Well, let me try to get specific. I'm
changing subjects now, but I want to go, with my remaining
time, to just one other line of questioning that is more
specific to Idaho, and it relates to the issue of how well the
administrative reforms have worked, because I have to say that,
even though there has been a lot of talk here today about how
well the administrative reforms have worked, I don't think that
my constituents would agree with that.
The Administration of the Superfund statute in north Idaho
has caused, in my opinion, significant trauma to community
after community, to the point that people are universally
frustrated with the way the act is implemented and the progress
that is being made, or lack of progress and then, what seems to
be a continuous rehashing of the issues.
One of the issues that we are going through again now is
whether, at this point, after years of working under the
Superfund statute, there is going to be a new listing and a new
designation for the NPL list.
As you know, Administrator Fields, the EPA has agreed to a
6-month hiatus, in which time the State of Idaho has been given
an opportunity to try to bring about a settlement.
The question I have is very specific there. It is my
understanding that 6 months runs in June, if I am correct, and
we are already hearing that, if there is no settlement, that
the process will be kicked right back into gear in June, they
will be starting to review in April, and if the State does not
come up with something by June, then the EPA is going to go
right back into its process of potential listing. Is that
correct?
Mr. Fields. Yes. If you give me 1 minute, I'll quickly
respond to your questions.
I do want to point out that, you know, Idaho--there has
been substantial progress at many of the sites in Idaho. You've
got nine sites on the list in Idaho. Four are construction
complete, and the other five constructions are underway. I
think that does reflect that there is a lot of good work going
on at the Superfund sites in Idaho, and substantial progress
has been made at those sites.
Senator Crapo. I might add there that the cost--you
probably are aware of some of the studies that just came out of
the cost that has been paid for that progress, and so there is
a disagreement about how well it is working, but go ahead.
Mr. Fields. All right. And then, regarding the specific
site you are mentioning, which is a candidate for the NPL, the
sites around the whole area around the Coeur d'Alene basin,
we're currently working aggressively. EPA, the Department of
Justice, and the State are aggressively trying to reach an
agreement in principle with the mining companies and
responsible parties around a cleanup agreement in the Coeur
d'Alene basin. We have agreed to defer any listing of the
contamination on the National Priorities List until the
conclusion of that discussion, which is about another 3 months
away, 3-plus months away.
We hope that we are successful. We have done many cleanups
at sites across the country without invoking NPL listing. We
see the NPL as a tool, among other tools, for effectuating
cleanup.
We will see how this negotiation proceeds. We hope that an
agreement can be struck and that we can proceed in a
cooperative fashion with the mining companies to effectuate
cleanup, and then we have said that, based on that review,
after that negotiation is over, we then will take up the issue
of whether or not a proposed NPL listing is necessary to bring
the parties together and effectuate cleanup at that site.
The end of June is the deadline.
Senator Crapo. Thank you, Mr. Chairman, for your
indulgence. I would just say I hope that, if the deadline is
not met--and, as you know, these are hard deadlines to meet--
that the EPA would continue to show some forbearance and allow
the people of Idaho to help deal with this problem without
having a solution imposed such as the proposed listing would
cause.
Ms. Schiffer. If I may just add one item on that Coeur
d'Alene basin site, we have had success in a settlement there
with the Union Pacific Railroad recently, and I think it is
worth mentioning, because it really shows that the program can
work and have effective settlements. That company was a
railroad, so its contamination was all up and down a road. It
is sometimes a hard thing to deal with. In fact, the Union
Pacific--we worked together, we got a very effective settlement
where they are going to be responsible for that contamination,
and really make progress.
I think it is worth noting that, even in the midst of the
contentiousness of the Coeur d'Alene basin kinds of sites, we
can have a settlement like the Union Pacific settlement that
we've recently had.
Senator Chafee. Thank you, Ms. Schiffer. Thank you, Mr.
Fields, very much for your time this afternoon.
Mr. Fields. Thank you, Mr. Chairman.
Ms. Schiffer. Thank you.
Senator Chafee. And, Senator Crapo, I'm sure you know you
can submit any further questions in writing.
Senator Crapo. Thank you.
Senator Chafee. At this time I would like to invite the
second panel to come to the table. The second panel includes
local elected officials: J. Christian Bollwage, mayor of
Elizabeth, NJ, who will testify on behalf of the U.S.
Conference of Mayors; and East Palo Alto, CA, City Councilman
R.B. Jones, who will present testimony on behalf of the
National Association of Local Government Environment
Professionals.
Your written statements will be included in the hearing
record, and we would ask that you will take 5 minutes to
summarize your remarks.
Mayor Bollwage.
Senator Lautenberg. While Mr. Bollwage is taking his seat,
Mr. Chairman, I want to note that he missed a glowing
testimonial that I gave to him before he arrived in the room.
You know, around here we don't do it twice. He'll have to read
the record.
[Laughter.]
Mr. Bollwage. Well, thank you very much, Mr. Senator. I
appreciate it.
STATEMENT OF HON. J. CHRISTIAN BOLLWAGE, MAYOR OF ELIZABETH,
NJ, ON BEHALF OF THE U.S. CONFERENCE OF MAYORS
Mr. Bollwage. Mr. Chairman, my name is Chris Bollwage, the
mayor of the city of Elizabeth. Members of the committee, I am
pleased today to appear on behalf of the Conference of Mayors,
which represents more than a 1,050 cities of population of
30,000 or more. My oral statement on brownfields specifically
talks about our recent survey, which you may have a copy of.
First, Mr. Chairman, let me congratulate you on your
chairmanship. It is always great to see former mayors sitting
on your side of the dias. We do appreciate that.
I'd also like to recognize Senator Frank Lautenberg, who,
during his tenure, has done so much for my city in Elizabeth
and many others throughout our State.
Senator you have been a leader on brownfield issues in our
State, and we appreciate your leadership. On behalf of the
Nation's mayors, I would like to thank you for all of your
efforts.
Mr. Chairman, none of us anticipated how Superfund's
liability would further fuel the phenomenon that we now call
``brownfields.'' Superfund sent a very strong signal that
contamination of our land will not be tolerated, but it also
thoroughly frightened innocent parties, like developers and
others, who would like to reuse, or, as we say, like to
``recycle'' land.
To learn more about the brownfields problem, we have been
conducting surveys with the Nation's mayors, and we also wanted
to learn what mayors need to reclaim these sites.
Our survey shows that brownfields is a problem of
significant proportion. First, our survey shows that there is a
consistent view of obstacles to redevelopment. The No. 1
obstacle was the need for cleanup funds. The second, more-
common impediment was dealing with the issue of liability. And
third is the need for more environmental assessments to
determine this type and extent of contamination.
About 178 cities estimated that the reuse of brownfields
would generate about $902 million to $2.4 billion in annual tax
revenues. We will be creating more jobs--190 cities estimate
that they would create 587,000 jobs.
A very interesting finding of the survey was that 118
cities estimated they could support an additional 5.8 million
people.
When we think about sprawl, this data suggests that
brownfields redevelopment and incentives to encourage in-fill
development can help with this issue.
Mr. Chairman, you have our specific recommendations on
brownfields, and you also have a copy of the full testimony
that I am giving here orally.
I would like to spend just a few minutes talking about what
we have accomplished in our city, in Elizabeth, and to
underscore to the committee why it is important to take steps
to help communities recycle these sites.
In Elizabeth, I have seen what is possible by reusing these
sites. In October of last year, we officially celebrated the
opening of the Jersey Gardens Mall, the largest outlet mall on
the east coast. It is located on a 170-acre former municipal
landfill that was closed in 1972. In excess of 200 stores,
providing more than 3,000 current jobs, growing to 5,000 jobs,
it totals 1.7-million square feet, and it will generate $6.5
million annually to the revenue to the city of Elizabeth in the
redevelopers' agreement.
Additional stores will open this fall. As a result of this
project, we see additional private investment flowing to the
immediate area. We have announced a major in door sports
complex called ``Rex-Plex,'' which will open in June and have
soccer fields, indoor/outdoor soccer fields. We've been working
with Marriott for an announcement on two Marriott hotels, an
office building of about 400,000 square feet, and currently
Senator Lautenberg has been working with us on ferry service
permits to New York City.
We have also had other successes in our city. We have taken
a former plastics factory on three acres of land, with not only
city bonding money but green acres funding, have converted into
two new state-of-the-art Little League fields.
Next month we open up on another brownfield site two new
soccer fields, olympic size, for the numerous soccer population
that we have in our city.
We are fortunate that the city of Elizabeth is ideally
situated to leverage a substantial economic and population base
of northern New Jersey extending to Manhattan.
I'm not suggesting that this is the most characteristic of
what cities can accomplish in redeveloping brownfields;
however, it does underscore the need for Federal policy to
support communities to generate their own successes and, as you
now see on a relatively modest scale, across the entire
country.
The Nation's mayors believe that the time has come for
bipartisan action on brownfields, and, wherever possible,
selected Superfund reforms. In moving bipartisan legislation
forward, you can count on the support of the Nation's mayors in
this regard.
Just on one final note, Mr. Chairman, we are home to
Chemical Control, one of the top 25 Superfund sites in the
Nation. The Superfund law was responsible for the cleanup of
that site. It cost $50 million to clean up that site. Superfund
worked in cleaning up the site, but there is nothing on that
site today. Brownfields--not only can we clean it up, but we
can put something on that site that generates economic
development, jobs, tax ratables for our citizens.
So, on behalf of the U.S. Conference of Mayors, we
appreciate the opportunity to share the view of the Nation's
mayors on these very important issues.
Thank you, Mr. Chairman.
Senator Chafee. Thank you, Mayor.
The U.S. Conference of Mayors has been a dynamic force in
the advocacy for brownfields legislation. As the spokesperson
for the U.S. Conference of Mayors, you have been most eloquent.
Mr. Bollwage. Thank you, Mr. Chairman.
Senator Chafee. Councilman.
STATEMENT OF R.B. JONES, CITY COUNCILMAN, EAST PALO ALTO, CA,
ON BEHALF OF THE NATIONAL ASSOCIATION OF LOCAL GOVERNMENT
ENVIRONMENTAL PROFESSIONALS
Mr. Jones. Mr. Chairman and distinguished members of the
subcommittee, my name is R.B. Jones, and I am here as an
escapee from the mayor's position back to city council. I had
the opportunity to serve for roughly 4 years as mayor, and was
mayor when brownfields were first introduced to our city.
I am also extremely proud today to testify on behalf of the
National Association of Local Government Environmental
Professionals, or NALGEP.
You have before you, as well, a written testimony that
provides details on the range of Federal incentives needed to
promote brownfields revitalization. Let me just add that words
in this short time would not be able to fully express what
brownfields has meant to East Palo Alto, in particular.
With a community that consists of roughly 14 different
ethnic varieties, so to speak, and many people who come from
either foreign countries, nations, or from States in the south,
people coming from situations where there was little or no
government, people coming from situations where there was
little or no respect for government in terms of how government
served them, and brownfields has really been one of the keys as
to how folks who have not had these great opportunities can
actually sit at the table and participate in an environment
that speaks to how their future is impacted.
With the immigration laws and the anti-immigration
sentiment of California being in place, there is a dire need
for folks to feel a part of being at the table. And so, without
asking for green cards, without asking for who is from
Mississippi or who is from Texas, who is from Mexico, who is
from Latin America, and how you got to the table, people
actually get a chance to come to the table, unbiased, and sit
and discuss what this land, what 132 acres of property in East
Palo Alto will look like in the years to come, how all of us
will be affected by that.
So we are very, very proud of brownfields in terms of what
it can do for our community.
At some other date, as well, we would love to talk to you
about the front door concept that brownfields has created in
the city of East Palo Alto, and we are very proud of that
concept and very interested in talking about it.
But, in my verbal testimony, I plan to focus on the single
most valuable thing Congress can do for East Palo Alto and
local governments across the country working on brownfields,
and that is to provide increased funding for brownfield site
assessments and cleanup.
The cost of site assessments and remediation can provide a
significant initial barrier to brownfield reuse. It is
important that we underscore the word ``reuse'' there.
The city of East Palo Alto, for example, is a small
community of a little over 25,000 people, and we have not
enjoyed the economic prosperity of our neighboring communities
in Silicon Valley. We have the highest level of unemployment
and poverty and the lowest median income in San Mateo County,
and San Mateo County being the richest county in the United
States.
The city has struggled hard to significantly reduce its
crime rate, which was one of the highest in the Nation in the
early 1990's.
In addition, East Palo Alto has suffered the effects of
toxic contamination, abandoned chemical factories, and other
pollution that has turned much of our community into idle
brownfields.
In 1992, the city of East Palo Alto was dubbed the ``Murder
Capital of the USA.'' There were 46 murders in our community.
Last year, there were two murders. And two is too many of our
constituents to lose, but we are very proud of the efforts that
have been made to turn our city around and to make it a viable
place where all of us can live.
Nevertheless, the city is successfully moving forward to
revitalize our community and our brownfields. Our focus is on
the Ravenswood industrial area that includes 130 acres in an
area that historically has had mixed uses, including
agricultural, commercial, industrial, and some residential.
The property is affected by a multitude of toxic
substances, including arsenic, chromium, pesticides,
herbicides, chlorinated solvents, and petroleum contamination.
The city partnered with EPA region 9 and the San Francisco Bay
Regional Water Quality Control Board to assess its sites and
estimate the cleanup to be between $2 million and $5 million.
The city has developed a strategic plan and design to
redevelop the Ravenswood area into a mixed use development and
employment center, with up to 2-million square feet of
commercial and high-technology offices and light manufacturing.
New medium-
density housing is also planned nearby.
The city expects that the redevelopment of the Ravenswood
industrial area would create roughly 4,000 new jobs and
generate more than $1 million a year in taxes.
However, revitalizing this area would not be easy. Our
biggest challenge will be to obtain the $2 million to $5
million required to clean up the site. It is unlikely that a
private developer would take on this project with such
significant cleanup costs.
Currently, there are few available sources to fill this
gap. Consequently, East Palo Alto's last remaining developable
area remains under-utilized.
The Federal Government, particularly the EPA, has played an
important role in helping East Palo Alto get started in the
brownfields area. Specifically, the Federal Government has
provided critical funding and staff, technical assistance,
public education, and connections with other Federal, State,
and private agencies that can support our revitalization.
To close, there are some specifics that I would just like
to suggest Congress could help us, and that is: increasing
grants for the site assessment and investigation; provide new
grants for cleanup of the brownfields sites; increasing grants
to capitalize brownfield cleanup revolving loan funds; and
structuring the program to meet local needs, which we think is
very important; and increasing funding for our other Federal
agencies to support brownfields revitalization.
The most important thing Congress can do to put more
brownfield revitalization is to increase and broaden the
Federal funding for brownfields.
Thank you.
Senator Chafee. Thank you, sir. We'll submit the entire
statement for the record.
Mr. Jones. Yes.
Senator Chafee. The chairman of the committee is here,
Chairman Smith, and I will yield, if you'd like, at this time.
Senator Smith. Just go ahead, Mr. Chairman.
Senator Chafee. No, his time was up.
Senator Smith. You go ahead, and I'll join the questioning
in a moment.
Senator Chafee. Thank you, again, Mayor and Councilman.
As you said, the impediment at this time to the cleanups in
your community is the money, and in that you agree with the
Environmental Protection Agency testimony we heard prior to
your testimony and Ms. Schiffer's urging Congress to include
the funding for brownfields cleanup--made a very important
point on that. So we are now hearing from you, who have to
implement these cleanups, that that is an important aspect, as
so often it is.
Would you like to ask any questions, Senator Lautenberg?
Senator Lautenberg. Yes. Thank you very much, Mr. Chairman.
I, too, welcome our committee chairman here. Senator Smith
and I have worked on a lot of things, some we've agreed upon,
some we've disagreed upon, but we've always been able to
maintain a dialog, and that is a very important characteristic,
I think, for good committee chairmanship, and I believe that
will continue.
I'm sorry that I won't be able to be here to nag him in the
years ahead, but I'll try to leave a permanent impression.
I want to say to Mayor Bollwage, who represents one of
America's great older cities, not only in New Jersey but in the
country--the home of Singer Sewing Machine. I lived there for a
short while as a child and saw what the paradox was.
When Elizabeth was doing well, on a relative basis, it was
during the Depression years. It was during the lean years. And
once the industrial revolution as we knew it kind of passed by
and the trades and the businesses changed in character, it was
a very hard adaptation, because with that glorious industrial
past was left a string of contaminated sites that were there as
a result of our building our country, and the transition was a
tough one.
I thought that Mayor Bollwage's testimony was particularly
poignant. I have been to the mall that he describes there. To
see the people coming and working there and this whole
upgrading of attitude has meant so much in the city, and other
sites.
Mayor, if you remember, I took the tour of the soccer
fields and the other places that were being built, and I think
it is fitting that we make this kind of effort to expand the
brownfields program and to try and deal with the Superfund
sites, because that is a problem that every one of us faces,
some States more than others, like New Jersey, but I know that
New Hampshire and Rhode Island and Idaho also have signs of the
past within their boundaries that bring with them some serious
warnings, as well as opportunities.
It is so good to see what happens, and I've seen it in
other cities in New Jersey--Hackensack, NJ, had a fallow site
along the Passaic River--again, very familiar territory to me
because as a child I lived in a lot of places in New Jersey. My
father struggled to make a living. The rivers that we swam in
as children now you could walk on almost because of the heavy
pollution.
But when you see sites converted like the one in
Hackensack--a big, positive discount store came in, and people
were able to shop there and work there, and it was a world of
change, so we want to try to be of help.
Mayor, what do you think we could do, speaking as a
representative of the Conference of Mayors? And I looked at
this report, which is an excellent recap of what the problems
are, and the interest by so many people, so many cities across
the country. What might we do, as you see it, to further
expedite the process? It has worked well in your area and
surrounding communities. A Union I notice is on there, and
other places.
Mr. Bollwage. Senator, the one thing we need is a
bipartisan approach to legislation in dealing with brownfields.
The city of Elizabeth and other surrounding cities in New
Jersey have implemented brownfields legislation in the State.
We worked in a
bipartisan effort with Governor Whitman, as well as the State
Legislature, in creating legislation such as the franchise fee,
which generated the revenue for the city of Elizabeth to get
money from the mall as the property taxes were pledged to pay
back the bonds in the infrastructure.
Brownfields legislation here from the Congress will go a
long way in having cities assess the cost of cleanup. What is
it exactly needed in order for these cities to take these
properties and convert them to use?
Oftentimes, these properties have a negative value, where
the cost of the cleanup is more than the property is actually
worth.
We are currently working with New Jersey Transit on one
such property, a former bus garage that New Jersey Transit has
torn down. The property is not worth much because the cleanup
comes to about $700,000 to $800,000. We're figuring out a way
to bridge that cleanup, as we are doing our environmental test.
If we had brownfields legislation and we could access grant
money, that site would have been cleaned up already and there
would be some type of housing/retail development on that site
by now. But, because of the funding issue, that is the primary
issue that mayors are concerned with.
Senator Lautenberg. Are there lots of private investors
around who would be interested in sites? Do you find active
pursuit of these sites by those who say, ``Give us some help in
getting them started,'' and, ``Make sure that we don't walk
into a liability situation that we couldn't deal with''?
Mr. Bollwage. Brownfield legislation, Senator, is probably
the No. 1 issue to stop suburban sprawl and create the ability
for developers to reinvest in municipalities.
Brownfield legislation would be the issue that developers
would be looking for to not only recreate urban lands into much
more developable property, but developers want to develop in
urban areas. After all, the city of Elizabeth--as you know, the
demographics are the seaport, the light rail, the rail, the
airport. It is all there for a developer to make a big success
story.
And it is also sometimes cheaper for a developer to develop
on urban lands, if, in fact, they have the ability and the
political will of a community to recreate land that has lain
fallow for many years to create a tax ratable out of it.
Senator Lautenberg. Mr. Jones, you know, when all of us--
I'll speak for myself. When I hear about California, I think
that everything is just green and beautiful, a little air
pollution here and there, but, frankly, because of the newness
of the State we don't think in terms of polluted sites and
things like that. But, as I read and listen to what you have to
say, I hear you calling for help, particularly in the
brownfields area, because you think there is opportunity within
your city boundaries that could be maximized if we had the
right kind of program.
What do you think we ought to do to help you along there?
Mr. Jones. I certainly agree, Mr. Lautenberg, with the
whole notion of the money, but included in our proposal, as
well, and included in our support for brownfields is the
structural changes, much to what Mayor Bollwage talked about,
about the freedom to allow local municipalities to participate
in the process.
Matching funds to a community like ours is pretty much a
hardship that we can't afford. There's no new land being made
in California. We have the land and we have the 132 acres
there. It is prime for development. Developers are there, they
just are chomping at the bits wanting to get in there. We need
room for housing, as well. But there's a concern about the
cleanup. There's concern about the liability of it. There's a
concern as to--72 percent of our budget right now goes to
public safety. If we cannot maintain that high standard of
public safety, based on what perception of our community, then
developers won't come, so we can't afford to go light on one
end to make heavy on the other end.
So we need structural changes in brownfields so that we can
get those developers in there with a sense of not the heavy
liability in cleaning the properties up and make it productive.
Senator Lautenberg. Well, we appreciate hearing from you.
Mr. Bollwage. Thank you, Senator.
Senator Chafee. As you probably know, brownfields is one
section of the entire Superfund legislation, and there is
bipartisan support for most of the remedies for brownfields,
whether it is the liabilities associated with contiguous
ownership or prospective buyers. The question more is: can we
separate out this area in which there is broad bipartisan
support for improvements? That's how we'll proceed as to
whether we can separate brownfields out.
I know Chairman Smith has been a public advocate of doing
that this year.
Chairman Smith.
OPENING STATEMENT OF HON. BOB SMITH, U.S. SENATOR FROM THE
STATE OF NEW HAMPSHIRE
Senator Smith. Thank you very much, Mr. Chairman. I want to
thank you, first of all, for holding the hearing, and welcome
you as your first subcommittee hearing, I believe, for this
year.
I enjoyed an especially close relationship with your Dad,
as you know, as we all did on this committee, so we look
forward to working with you, as well.
Superfund has not become any easier over the last several
years. I've spent 10 years on it in the Senate and still
haven't been able to come up with an answer. It seems as if
there's a lot of feeling on both sides of this.
Senator Lautenberg and I have spent many an hour together
trying to work out things, but didn't seem to come to fruition.
I think essentially the difference right now is that the
Administration believes that comprehensive reauthorization is
not warranted because of the strides that they have made at the
EPA, but there are many in the business community, and I think
many on this committee, who would not agree with that. I think
we should codify some of these changes, and I think they should
be comprehensive codification.
The issue of brownfields is an issue that some of us have
some differences on. We're trying to work it out as to whether
or not a brownfield would be necessarily a part of Superfund.
I, personally, believe that we could, as the chairman said,
move brownfields separately, but that has to be something that
is worked out with the committee members before we could move
forward on that.
My role, of course, has changed since last year, now as the
chairman of the full committee, and I am trying to have an open
mind on the issue of brownfields, as well as the issue of
Superfund, in general.
I know that some of the Superfund program is working well,
but I also know that a lot of money has gone to lawyers and
administrative costs over the years that didn't go to cleanup,
which doesn't really help the issue that we're trying to do,
which is to clean up toxic waste.
In New Hampshire, we have a very important removal action
right now, as Commissioner Varney knows, who is here
somewhere--we'll see you in the next panel, Bob. But there is a
removal action there at the Surrette America Battery site in
Northfield, which the staff director visited last week. And I
do appreciate the cooperation of EPA on that project. They have
been very helpful in region one. Last week they allocated an
additional $750,000 to this removal action, and this is going
to help tremendously. It has the potential, as Commissioner
Varney knows, to be a Superfund site.
So there are good things occurring. There's no question
about that. But we can do a lot more.
So I am looking at two prongs--first, to continue to
explore any legislative solution, but the second is oversight.
I think that the story at Surrette is becoming a positive
story. That's good. The EPA should be able to withstand good,
comprehensive overview to find out just what it is they're
doing right, what it is they're doing wrong.
So let me just ask one question, Mr. Chairman, and a couple
of quick questions of the panel, and then we can move on.
Mr. Jones--well, actually I could direct the question to
both of you because you both mentioned several times in your
testimony that further liability clarification is needed to
encourage the private sector to step forward and revitalize
more sites. We're talking now about brownfields. I would agree
with that.
Let me ask you specifically, what type of liability
clarification would best encourage the private sector to do it?
Have either one of you come to a specific conclusion on that?
Mr. Bollwage. Mr. Chairman, Senator Smith, first of all, I
want to recognize your Jersey roots. You were born in Trenton,
so you're always welcome to come back and take a look at what
we're doing in New Jersey, Senator.
Senator Smith. I've been to your city a few times.
Mr. Bollwage. I appreciate that, Senator.
Some of the sites will not attract private investment until
the site is assessed and cleaned up and it's posted with a
sign, basically, that says, ``This site is ready to go.''
One of the things that we can do is that we can use public
money to make that happen. We can make the site assessment, we
can say to the private developer, ``This site is ready to go.
There's no further action.''
And it is important to know that development in America
today is basically not the same as it used to be. Businesses
are operating in much tighter timeframes. And if they see a
location and the location is available for development, I
believe that, if there were dollars that assessed the damages
and it were cleaned up quickly, the developer would then move
and develop that property.
Senator Smith. One thing that you say--I'll just speak to
you for a second, mayor, and then I'll come to you, Mayor
Jones.
You say the second, more-common impediment issue is dealing
with the issue of liability, followed by the need for more
environmental assessments to determine the type and the extent
of the contamination. Those are interesting phrases, but let's
go right down to the core here. What about State finality? Does
the State need the finality to be able to make a decision and
not have the Federal Government step back in and reopen the
case?
Mr. Bollwage. In the mall site that we developed that I
talked about, there were 20 major permits that were needed in
order for that site to be remediated. The Regional Plan
Association of New York, Connecticut, and New Jersey worked
with the city and the State in shepherding those 20 permits
through the process, and when those 20 permits were filed and
completed, the State said it was ready to redevelop that mall
site, and so therefore the State moved on the permits, the
permits were opened, filed, closed, construction began.
Senator Smith. So do you support State finality, the State
having the last say?
Mr. Bollwage. There needs to be some type of compromise on
the State issue, finality issue. There has to be a definition
of the word ``final.'' I mean, when is final ``final?'' As far
as I'm concerned, if the State says it is final, then the
developer should be able to move on it.
Senator Smith. OK. So if the State says it is final, but
that is not what is happening. As the law is now, the Feds can
move back in there. Of course, if there is some huge issue that
develops later in the site, then, of course, the Federal
Government may have to, EPA may have to. We understand that.
But what we're really talking about here now is giving the
States a finality that would be able to say to a developer,
``Look, you're OK. Go ahead. Move forward. We're set on this.
Nothing is going to come back at you.''
Without that, I don't think you're going to get to the
results that you are talking about here in your statement.
Mr. Bollwage. Senator, I can only talk on what worked for
our benefit in Elizabeth, and it was 20 permits that the State
said that the permits are in order, you can move toward
construction, and it was a landfill. I don't know how much
more--it's not a Superfund site, but it was a landfill. It had
its problems environmentally. The State signed off on the 20
permits and construction began, and said it was final, and we
then built the project with a private developer.
Somebody has to say it is final. Being a mayor, we look to
the State DEP for finality, and the State says it is final. We
then built the project.
Senator Smith. Mayor Jones, do you feel the same way?
Mr. Jones. In some of the areas, at least.
Let me just read to you our posture on the liability part
of it. In our write-up we say,
Congress can enhance these liability reforms by further
clarifying in legislation that Superfund liability does not
apply to non-responsible parties, such as innocent landowners,
prospective purchasers, and contiguous property owners.
Let me say to the second part of that, that East Palo Alto
is roughly 27 or 30 miles from San Francisco, and right on the
borderline in San Mateo County is a small city, Pacifica. They
have just found that, even though the State had cleaned up,
even though the land had been cleaned up to the State's
standards, there is very clear evidence that has been admitted
by everyone of high incidents of cancer, blindness, low-birth
weight, and the whole bit.
So yes, I believe that the Federal Government should always
be there.
Let me say, as well, Senator, that I'm originally from
Mississippi, and my first involvement with Government was with
the Southern Christian Leadership Conference, and in that
environment, coming from Mississippi, thank God the Federal
Government was there.
So, whereas I believe that States have a great
responsibility and I respect that authority, I personally have
an allegiance to the Federal Government being there, if
necessary and if needed.
Senator Smith. Let me just clarify that with one further
point here.
When you talk about prospective purchaser agreements--you
both have talked about those--innocent landowner protection,
and all that, I mean, that's fine, but you have to encourage
the seller--and, frankly, the buyer--but the seller, when he
offers his or her property, if they fear liability, if they
feel somebody is going to come back, then how can they sell it?
They are not--you've got other parties that are going to come
in. The purchaser is going to come in, the seller. If there is
still liability hanging out over their heads, or some
responsibility for cleanup, and EPA reserves its right to
reopen, you're never going to get finality. That's one of the
reasons why these sites are not being totally taken care of as
they should be.
That's the issue. Somebody has to make a final decision,
and without that final decision you are going to reduce the
opportunity for people to come in or to clean it up or have
somebody sell the property to clean it up, or whatever the case
may be.
Mr. Jones. Some of these sites have been owned by
individuals for a long, long time, and the case may be that it
is more costly to assess and clean up than what the property is
worth. The unfortunate part about that in a city like East Palo
Alto is that the folks there would just leave it there, leave
it alone and walk away from it, so it just exists in your
community.
We are in a housing crunch. We are trying to get rid of our
unemployment ratio. So we need the land to be developed, to be
user-friendly for that matter. And if there is no money coming
in from the buyer because the seller doesn't want to sell
because they can't make any money and can't raise the money,
even if they have been ordered to sell the property, we need
something to say to the buyer, ``Buy this land, back the money
out of escrow, work out whatever deal.''
If the land costs $200,000 and it costs $200,000 to assess
it and clean it up, we need a force to say, ``You work whatever
deal may be where you sell it for $1, the land gets cleaned up
to some standards by somebody who is credible--'' and that's
the EPA, probably--``and we can go on then and deal within the
site.''
But folks say to us that they are afraid that 10 years from
now it would be like a Ron Pallock site that exists in our
community where arsenic shows up, and everybody who has cancer
sues the city for granting the permits and sues the new buyer
for owning the land for 10 years.
Senator Smith. Thank you.
Thank you, Mayor Bollwage. He's got a 4 o'clock train.
Senator Chafee. Apparently he had to leave.
Senator Smith. Senator Crapo, did you get a shot at him?
You're all alone, Councilman.
Senator Crapo. No, I didn't have any questions, Mr.
Chairman.
Senator Chafee. Senator Lautenberg.
Senator Lautenberg. If Mayor Bollwage were here, I would
ask him if New Jersey didn't have a great environmental
Senator, but I can't ask him.
[Laughter.]
Senator Lautenberg. He had signaled me that he had a time
problem, and he did agree with the staff person that used to
work for me that any questions he would be happy to answer,
both as mayor and as the representative of the Conference of
Mayors.
Senator Chafee. We're both train advocates, and he's taking
the train back to Elizabeth.
Senator Lautenberg. I guess. See, if we had high-speed
train he could spend a little more time with us.
[Laughter.]
Senator Chafee. Thank you for coming all the way from the
west coast, Councilman Jones. We much appreciate your
testimony. Good luck in East Palo Alto.
Mr. Jones. Thank you very much.
Senator Chafee. I know you're working hard to return that
city to its glory.
Mr. Jones. Thank you very much.
Senator Chafee. And the third panel, I would invite Mr. Bob
Varney, commissioner of the New Hampshire Department of
Environmental Services, on behalf of the Environmental Council
of States; Mr. Terry Gray, assistant director for Air, Waste,
and Compliance for the Rhode Island Department of Environmental
Management, who has visited many of the sites in Rhode Island
with me over the past number of weeks; and Mr. Eugene Martin-
Leff, assistant attorney general of New York, on behalf of the
National Association of Attorneys General.
Welcome, gentleman. Please limit your statements to 5
minutes, and if there are any additional statements you'd like
to submit to the record, we would accept that.
Commissioner Varney, may we begin with your testimony?
STATEMENT OF BOB VARNEY, COMMISSIONER, NEW HAMPSHIRE DEPARTMENT
OF ENVIRONMENTAL SERVICES, ON BEHALF OF THE ENVIRONMENTAL
COUNCIL OF STATES
Mr. Varney. Thank you, Mr. Chairman and members of the
committee. My name is Bob Varney. I am commissioner of the New
Hampshire Department of Environmental Services.
I want to say what a pleasure it is to be here with Senator
Smith from New Hampshire. I greatly appreciate the efforts that
he has made in New Hampshire and across the country to improve
the Superfund program.
And I want to thank Senator Chafee for taking on the
challenge of this committee. When Senator Smith became chairman
of this committee, I frequently at meetings reminded people
that this was probably one of the most challenging and
difficult assignments in the U.S. Senate, and applaud your
willingness to take on the challenge.
I have experienced the Superfund program for almost 11
years as the State environmental commissioner under three
different Governors of both political parties. I also have
served as president of the Environmental Council of the States
having just recently finished my term as president and I
currently serve as past-president.
The Environmental Council of the States is the national
organization of State environmental agency heads.
As you all know, States are responsible for the vast
majority of hazardous waste cleanups across the country. In the
small State of New Hampshire, we have approximately 3,000
petroleum sites, and about 600 hazardous waste sites, including
18 NPL sites. I believe we have the dubious distinction of
having the most Superfund sites per capita of any State in the
country, and just recently Governor Shaheen sent a letter to
Carol Browner asking that another site in Nashua be put on the
NPL.
We have resolved over half of the hazardous waste sites and
petroleum-contaminated sites in our State, and I think that is
very important. Early on, when I came before this committee on
behalf of the National Governors Association, we were in a much
different situation. States were relatively new in taking over
the petroleum cleanup program across the country and were
delegated that program by EPA. It has worked very, very well.
In terms of hazardous waste sites, States are dealing with
and resolving more and more hazardous waste sites through
enforcement action, through voluntary cleanups, and through the
brownfields programs, and I think we have a lot to be proud of.
I think, as we look to the future in terms of reform, we
have to be very mindful of the fact that 97 to 99 percent of
the cleanups are handled by the State, and whatever we do at
that Federal level could have significant impacts on the State
cleanup programs.
In our State we've also seen a shift from arguments about
remedy selection and settlements and who is going to pay and
how much each party will pay to having most of our sites in the
remedial action phase.
As we look at the administrative improvements that EPA has
made--and we commend EPA for the administrative improvements
that they've made--I think we also have to recognize the
element of time and the fact that when we have parties in the
process of trying to settle and the process of trying to argue
about remedy selection, which has big dollars attached, there
is likely to be a lot of criticism about the program.
But as you move into the remedial action phase, it is
interesting how the volume gets turned down significantly in
terms of those criticisms.
The program truly has matured, but that's not the case in
all of the States. There are some States in the country that
still have significant settlement discussions, and a
significant number of sites that have not reached their
remedial action phase. The issue of Superfund and Superfund
reform is likely to be more contentious in those States.
We also want to stress the importance of funding and fully
funding the Federal Superfund program. It is very much needed
by States that don't have much capacity or limited resources
or, in some cases, even very little interest in handling
Federal Superfund sites, and there needs to be a presence
there.
But even sophisticated, well-funded, and experienced States
rely on Superfund to achieve their goals, either through
resources or the ``gorilla-in-the-closet'' kind of concern that
exists relating to liability and cost allocation.
The key issue, as we see it, in terms of Superfund is
looking at the issue of orphan sites, sites where there is no
readily apparent PRP with resources to achieve cleanup.
In a recent GAO report entitled, ``Hazardous Waste:
Unaddressed Risk at Many Potential Superfund Sites,'' 232 sites
on EPA's inventory of potentially contaminated sites that
either States or EPA believe should go on the NPL were
identified, again underscoring the need for a fully funded
Federal Superfund program, particularly focusing on those
orphaned sites that are high risk and need to be addressed and
where there are limited resources to address the problem.
Senator Chafee. Mr. Varney, thank you.
Mr. Varney. Thank you.
Senator Chafee. We'll orphan the rest of your testimony on
that paragraph.
Mr. Varney. Thank you.
Senator Chafee. In respect for time.
We'll go in order of who came the furthest. Now from Rhode
Island, Terry Gray.
STATEMENT OF TERRENCE GRAY, ASSISTANT DIRECTOR, AIR, WASTE, AND
COMPLIANCE, RHODE ISLAND DEPARTMENT OF ENVIRONMENTAL MANAGEMENT
Mr. Gray. Good afternoon, Mr. Chairman. Thank you very much
for the opportunity to come down and share some of the Rhode
Island perspectives with you and other members of the Committee
on Superfund, and also with the cleanup of contaminated sites
overall.
I am here again to share the Rhode Island perspective, but
I am also an active member of the Association of State and
Territorial Waste Management Officials. That association has a
national perspective on some of the things that they'd like to
see improved in the Superfund program, and I would like to
respectfully offer their written statement into the record for
this hearing.
In Rhode Island, our State efforts on cleanup have evolved
from sole reliance on the Federal Superfund and RCRA program in
1991 to a comprehensive cleanup program that we have today.
That cleanup program includes voluntary cleanup aspects,
enforcement programs, as well as a very aggressive brownfields
program.
Over that same time period, Superfund has also changed, as
you've heard from a number of witnesses today, from a
duplicative, inefficient, and often inflexible program to a
more-cooperative, responsible, responsive, and streamlined
program. Those improvements have been recognized and applauded
by many people in Rhode Island, as you've heard.
One clear point that I'd like to make in my testimony today
is there is much more to the cleanup of contaminated sites than
just Superfund and the National Priorities List. We have
clearly seen, in our experience over the past 10 years, that
Superfund, our State program, our voluntary cleanup program,
and our brownfields program collectively provide a broad range
of tools and flexibility to address the many types of sites
that we've seen in Rhode Island.
We are just beginning to see the next generation of sites,
as well. There are several new sites that are uncovered as a
result of more aggressive work in urban communities, several
smart growth initiatives that are occurring throughout the
country, and investigations in support of total maximum daily
load limits for our State waters.
In developing our State program elements, we have also
evaluated what other States have done, and we have seen some
true innovations, particularly with respect to licensing site
professionals and stimulating the growth of cleanup and getting
more sites cleaned up, overall.
We've also seen that the backbone of virtually all cleanup
programs, including Rhode Island, is the Superfund liability
scheme. Based on our experiences in all these cleanup programs,
I'd like to offer some of Rhode Island's recommendations that
you may take into account when considering Superfund
reauthorization or other statutory reforms.
First, we feel that the statute should recognize and
support all these cleanup programs that I've mentioned,
including State programs, voluntary cleanup programs, and,
obviously, the brownfields program.
Innovation at the State level should also be recognized and
supported. When looking at the State role, please try and avoid
the establishment of prescriptive Federal standards for what is
an acceptable State program, because there are many different
models out there that I think work very effectively.
I think the issue of finality of State programs should also
be addressed. We really need to avoid the potential double
jeopardy that I think is perceived by many developers and
performing parties that are out there cleaning up our sites.
I think we should exercise care and caution when changing
the liability system. We concur with the concept of liability
relief to some parties--clearly, the brownfields parties, such
as prospective purchasers and also neighboring property owners
and down-
gradient receptors. We also think there is room for liability
relief for municipalities, as well. But I think a full
evaluation of the impacts of these liability changes have to be
evaluated, including their potential impacts on State programs.
Finally, I think brownfields projects should be de-coupled
from the strict requirements of the national contingency plan.
This puts an unrealistic burden on municipalities and some of
the developers that are trying to bring these sites back to
reuse.
Funding assistance should also be made available to support
the remediation of brownfields sites for the future uses for
nonprofit or public purposes, such as open space, greenways,
bike paths, and perhaps even schools, as we have seen along the
Wanaskatucket River in Providence.
Once again, thank you for the opportunity to testify. I
would be happy to answer any questions.
Senator Chafee. Thank you, Mr. Gray, very much.
Mr. Martin-Leff, welcome, from New York.
STATEMENT OF EUGENE MARTIN-LEFF, ASSISTANT ATTORNEY GENERAL,
NEW YORK STATE ATTORNEYS GENERAL OFFICE, ON BEHALF OF THE
NATIONAL ASSOCIATION OF ATTORNEYS GENERAL
Mr. Martin-Leff. Thank you, Mr. Chairman.
I'm appearing today on behalf of Attorney General Eliot
Spitzer of New York and on behalf of the National Association
of Attorneys General.
I have been working in litigation under CERCLA since 1983
in the courtroom, and during the past year I represented
Attorney General Spitzer in Governor Pataki's State Superfund
and Brownfields Working Group, where we are addressing some of
the same issues that are being raised here today.
The National Association of Attorneys General has been
deeply involved in Superfund reauthorization for many years. In
1997, this group of attorneys general from the entire country,
both parties, were able to agree on a resolution touching on
many of the key issues, and that resolution has been
distributed to the subcommittee today.
In the resolution, the association stressed the critical
importance of the Superfund program in ensuring protection of
public health and the environment.
I would like to comment first today on the importance of
clear liability standards. The ability to recover costs under
CERCLA is crucial to our cleanup program in New York. About 10
percent of the State registry of inactive disposal sites are
National Priority List sites, federally funded.
Even though these sites are typically more expensive than
others, Federal money constitutes only about 13 percent of all
the cleanup funding in New York. On the other hand, private
money through settlement primarily constitutes 66 percent.
State funding accounts for about 20 percent.
So the ability to obtain settlements from private parties
is what is driving the cleanup program in New York State, and
it is the ability to use these CERCLA liability provisions that
enables us to achieve this voluntary agreement to settle these
cleanup cases.
Potentially responsible parties know where they stand under
current liability principles. This connection between
enforcement and the generation of cleanup funds is vital.
Congress has done more than make money available in the
Superfund program. What it has done is to leverage the Federal
money into far-greater matching private dollars by creating and
preserving liability for cost recovery.
On the other hand, every change that is made in liability
standards carries with it a potential loss of predictability,
and there could be significant cleanup funding consequences.
CERCLA enforcement has another crucial role in New York and
other States. In our State, there is no right under State
statutory law to cleanup cost recovery without first going
through an administrative hearing. Our administrative process,
with a full evidentiary hearing, is rarely used, so we and
other States depend on our express right to sue in Federal
court under CERCLA.
Attorney General Spitzer is participating actively in the
public debate on brownfields within New York State, and in that
context everyone agrees that certain reforms are needed to
facilitate brownfields revitalization. Future use of
contaminated sites certainly must be considered, and
institutional controls must supplement remedies such as
excavation. However, the devil, as they say, is in the details.
Cleanup levels must not be set simplistically based on the
current use of a site or on a developer's projected use. As
required currently by EPA, future use must be carefully
determined by examining current use, projected use, and not
only zoning laws and formal municipal plans, but also the
proximity of a site to residential areas, developmental trends
in the area, local community views, environmental justice
concerns, and other relevant information.
Similarly, institutional controls must not be seen as a
panacea. Some of these controls are not as reliable as others.
It must be carefully examined whether the particular control is
likely to be enforced in the future.
EPA and State environmental agencies should consider the
long-term effectiveness of the institutional controls and the
cleanup, along with the cost and other relevant factors, and
choose the remedy that best meets all the appropriate cleanup
criteria.
Senator Chafee. Mr. Martin-Leff, thank you very much, sir.
The time has expired.
Mr. Martin-Leff. Thank you.
Senator Chafee. We have a vote called, and we have a brief
time to ask questions before I have to conclude the hearing.
Senator Lautenberg.
Senator Lautenberg. Thanks very much, Mr. Chairman. We'll
try to move along here.
I would ask for Mr. Gray or Mr. Varney--we welcome you
here--wouldn't you agree that even if we decide to constrain
EPA's ability to respond to sites where States want to take the
lead, that it would be appropriate to tie this restraint on EPA
to the State program, meeting with some basic criteria?
Mr. Gray. I think the devil is in the details on that
issue, Senator, and I think there are certain minimum standards
that people would expect in a State program; however, those
standards should be set in a manner that clearly does not tie
the State's hands or dampen innovations or any type of new
approach that a State would want to have.
Senator Lautenberg. But suppose--and let's not look at our
own States for the moment, but suppose a State has inadequate
standard for the safety and well-being of the people in the
area. Should EPA be there? Should there be a Federal standard
that has to be met that says--by the way, I must say that, to
my knowledge--and I stand ready to be corrected--there has
never been a reopening or a reentry of the EPA after a site has
been dealt with at the State and cleaned up.
So, you know, shouldn't there be that safety net out there?
Mr. Gray. I think the safety net will always exist with
respect to emergency actions. If there is an emergency
situation, either the State or EPA would take action on those
type of things.
Although I don't have any information about the EPA
aggressively over-filing on issues, there is still a perception
out there that I have experienced in the regulated community
that there is a fear of this duplication of authorities.
EPA region one, in particular, has been very aggressive
with comfort letters, and we have also signed a memorandum of
understanding on our voluntary cleanup program, but there is
still that fear in the regulated community about when is
finality truly final.
Senator Lautenberg. Because, Mr. Gray, in your testimony
you do say, ``We believe that the continuing threat of listing
a Superfund program, coupled with our own enforcement actions,
provide the impetus for cooperation.'' So being aware of the
fact that there is a chance that the question could be raised,
an action could be taken, gets the parties, I think, to sit
down and negotiate in good faith and understand what the
parameters are.
Mr. Chairman, in order to be fair to everybody, I will
submit questions.
Senator Lautenberg. I have a question that Senator Boxer
asked us to submit to Ms. Schiffer from the Department of
Justice, and I would ask unanimous consent that we accept that
question and ask for a prompt response from Ms. Schiffer, and
would reserve the right to submit questions to our friends that
are at the table here, and I thank them for their excellent
testimony.
Senator Chafee. Thank you, Senator Lautenberg.
Mr. Martin-Leff, if I read your testimony accurately, you
were sounding a cautionary note on relaxing any liability
standards, and in previous testimony we heard from EPA that, on
the brownfields legislation, it is generally accepted that some
areas of liability could be relaxed, particularly innocent
landowners, contiguous property owners, and prospective buyers.
Could you comment on whether I read your testimony
accurately? And would you agree with EPA's direction?
Mr. Martin-Leff. You certainly did, Mr. Chairman. The
particular modifications that you mentioned, however, are,
indeed, modest. Certainly, prospective purchasers who are not
responsible for disposing of waste at the site don't face
liability at all under the current rules, so giving them
protection is entirely consistent with the thrust of our
cautionary note.
Senator Chafee. OK. Thank you, gentlemen, very much.
Senator Smith.
Senator Smith. Thank you, Mr. Chairman.
Let me welcome my friend and colleague from New Hampshire,
Bob Varney. We have worked together for about 10 or 12 years, I
guess, on these sites, or longer than that, on Superfund sites
in New Hampshire.
I am delighted to have you here, and welcome the other
witnesses, as well.
We are running low on time here because we have a recorded
vote and only a few minutes left.
I would just like to say, Mr. Gray and Mr. Varney, both of
you have given pretty strong statements on State finality, and
you use the term in your statements. I might just commend you
for that, because I don't see how we can move forward without
some degree of finality. I mean, you see these cases where you
have the--was it the South Dakota or North Dakota? I have it
here somewhere. In any case----
Mr. Varney. South Dakota.
Senator Smith. South Dakota. Yes. In any case, you have a
situation where EPA is not giving finality. They are still
reserving the right to come back in. I think that makes it very
difficult for any conclusion to these sites.
So I think you've made your positions pretty clear, and I
commend you for that. I might be interested in knowing what
NAAG's position is on that, Mr. Martin-Leff, because you are
the legal guys, and it would seem to me that if you want to get
these things resolved you have to have somebody with some
finality here.
We all recognize that there is a Federal Government here in
the event that there is an emergency, but to say that the
Federal Government can come back in and hold somebody liable
where you've made decisions on cleanup, you're going to--maybe
that's why the lawyers like it. You're going to stay in court.
But it just seems to me that you've got to--I'd like to see
your organization come out in strong support of finality,
because I think that is how we get this stuff done.
You are essentially in the same position as a
representative of the State as an attorney general.
There's my challenge for you for the day.
Mr. Martin-Leff. The Association of Attorneys General has,
indeed, taken a position on this point, and the phrase that we
have used is ``give appropriate legal finality to qualified
State voluntary cleanup programs.''
If I may comment on what that finality means, it is not
absolute. When we settle lawsuits, obviously defendants are
looking for finality in any case, and certainly prospective
purchasers are looking for finality in brownfield sites.
We never settle a case without a reopener provision, so
finality is never treated as absolute, yet companies have
enough security that they have put their exposure behind them
unless something unusual happens.
Although the Association has not specifically----
Senator Smith. Well, why hold them accountable for the
unusual that happens? That's the point. You could expedite this
process tremendously. I mean, why would anybody want to go into
a situation like that, not knowing 10 years from now, 20 years
from now, I could be responsible for millions more.
We're never going to get there. We've got all these sites
laying out there--brownfields and Superfund sites, brownfields
especially, that could be developed like that or cleaned up, as
we have done. Many have done it in spite of this lack of
finality, but it has been tough.
We are in a situation where we just literally have to run
out of here to go vote, so I don't want to delay. I might have
a couple of follow-up questions. And I apologize to the other
witnesses for not having a chance to ask a question.
Senator Chafee. Yes. Thank you for coming all the way down
here to Washington today and helping us as we try to make
improvements in this legislation.
Ladies and gentlemen, thank you, also.
[Whereupon, at 4:10 p.m., the subcommittee was adjourned,
to reconvene at the call of the chair.]
[Additional statements submitted for the record follow:]
STATEMENT OF TIMOTHY FIELDS, JR., ASSISTANT ADMINISTRATOR FOR SOLID
WASTE AND EMERGENCY RESPONSE, ENVIRONMENTAL PROTECTION AGENCY
INTRODUCTION
Good afternoon Mr. Chairman, and Members of the Subcommittee. I am
pleased to have this opportunity to appear before you to discuss the
Agency's record of accomplishments over the past 7 years in
fundamentally improving the Superfund program, and Superfund's
necessary role in cleaning up our nation's most contaminated
properties. Further, I will discuss the important role we play in
helping states, local governments, the private sector, and communities
address the problem of brownfields.
First, I believe we must recognize Superfund's important mission.
Superfund is dedicated to protecting public health and the environment
for citizens, no matter where they live in the country, through
targeted cleanups of our nation's hazardous waste sites, including
those caused by the Federal Government. These sites pose a very real
problem. Studies by the Agency for Toxic Substances and Disease
Registry (ATSDR) show a variety of health effects that are associated
with Superfund sites, including birth defects, reductions in birth
weight, changes in pulmonary function, changes in neurobehavorial
function, infertility, and changes in blood cells that are associated
with chronic lymphocytic leukemia. EPA works closely with ATSDR to
evaluate the impacts of contaminated sites on public health. EPA also
works with other Federal agencies to assess the significant adverse
impacts Superfund sites have had on natural resources and the
environment.
Superfund Progress
The Superfund program is making significant progress in cleaning up
hazardous waste sites on the National Priorities List (NPL). The Agency
has increased Superfund productivity--from cleaning up 65 sites per
year to cleaning up at least 85 sites per year in each of the past 3
years. As of September 30, 1999, 92 percent of the sites on the NPL are
either undergoing cleanup construction (remedial or removal) or are
completed:
680 Superfund sites have reached construction completion
442 Superfund sites have cleanup construction underway
More than 1000 NPL sites have final cleanup plans approved
An additional 204 sites have had or are undergoing a
removal cleanup action.
By the end of the 106th Congress, EPA will have completed cleanup
construction at approximately 60 percent of all non-Federal sites
currently on the NPL.
In addition, more than 6,000 removal actions have been taken at
hazardous waste sites to stabilize dangerous situations and immediately
reduce the threat to public health and the environment. Close to 32,000
sites have been removed from the Superfund inventory of potentially
hazardous waste sites (CERCLIS) to help promote the economic
redevelopment of these properties.
Through three rounds of Administrative Reforms, EPA has made
Superfund a fairer, more effective, and more efficient program. EPA has
implemented reforms in seven major program categories: cleanup,
enforcement, risk assessment, public participation and environmental
justice, economic redevelopment, innovative technology, and State and
Tribal empowerment. EPA is fully committed to continuing to implement
these reforms and integrate them into base program operations.
Increasing the Pace of Site Cleanups
The Superfund program is making significant progress in
accelerating the pace of cleanup, while ensuring protection of public
health and the environment. The accelerated pace of completing cleanups
is demonstrable. More than three times as many Superfund sites have had
construction completed in the past 7 years than in all of the prior 12
years of the program combined. In the past 3 years, FY 1997-FY 1999,
EPA completed construction at 260 sites--far more than during the first
12 years of the program (155 sites). EPA is on track to achieve the
President's goal of completing cleanup construction at 970 Superfund
sites by the end of fiscal year 2002.
Private Party Funding of Cleanups
EPA's ``Enforcement First'' strategy has resulted in responsible
parties performing or paying for more than 70 percent of long-term
cleanups since 1991, thereby conserving the Superfund Trust Fund for
sites for which there are no viable or liable responsible parties. This
approach has saved taxpayers more than $16 billion to date--more than
$13 billion in response settlements, and nearly $2.5 billion in cost
recovery settlements.
Protecting Human Health and the Environment
The Superfund program's accomplishments are significant in reducing
both human health and ecological risks posed by dangerous chemicals in
the air, soil, and water. The Superfund program has cleaned over 232
million cubic yards of hazardous soil, solid waste, and sediment and
over 349 billion gallons of hazardous liquid-based waste, groundwater,
and surface water. In addition, the program has supplied over 431,000
people at NPL and non-NPL sites with alternative water supplies in
order to protect them from contaminated groundwater and surface water.
Over 22,900 people at NPL and non-NPL sites have been relocated in
instances where contamination posed the most severe immediate threats.
ADMINISTRATIVE REFORMS
Stakeholders inform us that EPA's Superfund Reforms have already
addressed the primary areas of the program that they believe needed
improvement. EPA remains committed to fully implementing the
Administrative Reforms and refining or improving them where necessary.
Below are Superfund performance highlights through fiscal year 1999.
Remedy Review Board
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 43
site cleanup decisions, resulting in estimated cost savings of
approximately $70 million.
Updating Remedy Decisions
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. In
fact, the Updating Remedy Decisions reform is one of EPA's most
successful reforms, based on its frequent use and the amount of money
saved. After 4 years of activity, more than $1.4 billion in future cost
reductions are estimated as a result of the Agency's review and update
of 300 remedies. It is important to stress that the future cost
reductions described above can be achieved without sacrificing the
protection of public health and the current pace of the program.
Remedy Selection
Under the current statutory framework, providing for a preference
for treatment of waste and permanent solutions to the maximum extent
practicable, the Superfund program is focusing on treatment of toxic
hot spots and requiring treatment in fewer instances when selecting
remedies. 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; and the use of a phased
approach to defining objectives and methods for ground water cleanups.
As a result of these factors, EPA has reduced the cost of cleanup by
approximately 20 percent.
Promoting Fairness Through Settlements
EPA has addressed concerns of stakeholders regarding the fairness
of the liability system by discouraging private party lawsuits against
small volume waste contributors that have limited responsibility for
pollution at a site. EPA has protected over 21,000 small volume
contributors (about two-thirds of these in the last 4 years) from
expensive private contribution suits through the negotiation of more
than 430 de minimis settlements. EPA continues 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 de micromis party $0 (i.e., no-cost) settlements that would
provide protection from lawsuits by other potentially responsible
parties (PRPs).
Orphan Share Compensation and Special Accounts
Since fiscal year 1996, EPA has offered orphan share compensation
for past costs and future oversight costs or approximately $175 million
at 98 sites to responsible parties willing to negotiate long-term
cleanup settlements. EPA will continue the process at every eligible
site. Through 1999, EPA has collected and placed $486 million in 133
interest bearing special accounts for site specific future work. In
addition, over $85 million in interest has accrued in these accounts.
This reform ensures that monies recovered in certain settlements are
directed to work at a particular site. At a number of sites, this money
can make a great difference in making settlements work. In fiscal year
1998, EPA set aside and then spent more than $40 million of Superfund
response money in new settlements for mixed work or mixed funding.
OTHER SUPERFUND PROGRAM ACCOMPLISHMENTS
States
EPA continues to work with States and Indian tribes as key partners
in the cleanup of Superfund hazardous waste sites. During the last 2
years, fiscal year 1998 and fiscal year 1999. EPA provided close to
$225 million to States sharing in the management of response activities
at sites. EPA is increasing 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. With the May 1998 release of the
``Plan to Enhance the Role of States and Tribes in the Superfund
Program,'' the Superfund program is expanding opportunities for
increased State and Tribal involvement in the program. Seventeen pilot
projects with States and Tribes have been initiated through this plan.
In addition, over the last 5 to 6 years, States, Tribes, and EPA
have developed ways under existing statutory authorities of dividing
contaminated site work in a manner that fits the needs of the sites and
the interests and abilities of each regulatory agency--reducing overlap
and duplication in favor of more complementary, mutually supportive
arrangements. The Administration believes that this partnership is
working to achieve a dramatic number of cleanups across the country.
Today's State, Federal and Tribal programs comprehensively address the
scope of the hazardous waste contamination problem.
Community Involvement
The Superfund program is committed to an open decisionmaking
process that fully involves citizens in site cleanup by providing the
community with timely information and by improving the community's
understanding of the potential health risks at a site. Superfund
accomplishes this involvement through outreach efforts, such as public
meetings and site-specific fact sheets. EPA has enhanced community
involvement through the successful implementation of reforms such as:
the EPA Regional Ombudsmen, who continue to serve as a direct point of
contact for stakeholders to address their concerns at Superfund sites;
the Internet pages, which continue to provide information to our varied
stakeholders on issues related to both cleanup and enforcement; and the
Technical Assistance Grants (TAGs), Community Advisory Groups (CAGs),
Restoration Advisory Boards (RABs) and Site-specific Advisory Boards
(SSABs).
The TAG program provides eligible community groups with financial
assistance to procure technical consultants to assist them in
understanding the contamination problems and their potential solutions.
This understanding helps them participate in decisions made at sites.
EPA has awarded 220 TAGs (valued at over $16 million) to various groups
since the program's inception in 1988. The Agency plans to publish
revisions to the TAG regulation by the summer of 2000 to simplify the
TAG program further.
The CAG program enables representatives of diverse community
interests to present and discuss their needs and concerns related to a
Superfund site with Federal, State, Tribal and local government
officials. The number of sites with CAGs increased by over 50 percent
before the CAG program was officially taken out of the pilot stage.
CAGs have been created at 51 non-Federal facility sites.
Community Involvement at Federal Facilities
The Superfund Federal facilities response program also recognizes
that various stakeholder groups need the capacity to participate
effectively in the cleanup process. The program has entered into
partnerships and awarded cooperative agreement grants to State, Tribal,
and local associations, and to community-based organizations. The
grants focus on training for affected communities, participation of
citizens on advisory boards, access to information, and implementation
of the Federal Facility Environmental Restoration Dialogue Committee
(FFERDC) principles. These grants offer the opportunity to leverage
valuable resources, build trust, and reach a wider audience.
The Superfund Federal facilities response program is a strong
proponent of involving communities in the restoration decisionmaking
process and recognizes that input from Restoration Advisory Boards
(RAB) and Site-Specific Advisory Boards (SSAB) has been essential to
making response decisions and, in some cases, reducing costs.
Increasing community involvement, Restoration Advisory Board/Site-
Specific Advisory Board support (RAB/SSAB), and partnering with States,
Tribes and other stakeholders are high priority activities for EPA.
There are over 300 RABs and 12 SSABs throughout the country.
REVITALIZING AMERICA'S LAND
Brownfields
Through its brownfields program, EPA helps communities clean up and
develop less contaminated brownfields sites. Brownfields are abandoned,
idled, or under-used industrial and commercial properties where
expansion or redevelopment is complicated by real or perceived
contamination. The Brownfields Initiative plays a key role in the
Administration's goal of building strong and healthy communities for
the 21st century. The Initiative represents a comprehensive approach to
empowering States, local governments, communities, and other
stakeholders interested in environmental cleanup and economic
redevelopment to work together to prevent, assess, safely clean up, and
reuse brownfields. The Administration believes strongly that
environmental protection and economic progress are inextricably linked.
Rather than separate the challenges facing our communities, the
Brownfields Initiative seeks to bring all parties to the table--and to
provide a framework that enables them to seek common ground on the
range of challenges: environmental, economic, legal and financial. The
EPA brownfields pilot programs form the basis for new and more
effective partnerships. In many cases, local 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, and community activists.
The Brownfields Assessment Pilots have formed a major component of
the Brownfields Initiative since its announcement a little more than 5
years ago. The Agency has awarded 307 Brownfields Site Assessment
Demonstration Pilots, funded at up to $200,000 each, to States, Tribes,
and communities. In fiscal year 2000, the Agency will fund as many as
50 additional assessment pilots of at up to $200,000 each and 50
existing Brownfields Site Assessment Demonstration Pilots for up to
$150,000 each, in order to enable continuation and expansion of their
brownfields efforts. For fiscal year 2001, the Administration has
requested $8 million to provide funding and technical support for 40
assessment pilots at up to $200,000 each. Selected through a
competitive process, these pilots help communities to demonstrate the
economic and environmental benefits of reclaiming brownfields
properties, to explore ways of leveraging financial resources, and to
model strategies for the organization of public and private sector
support. Small towns and large cities both have been recipients of the
grants. Combined with the Agency's property assessment efforts, these
pilots have resulted in the assessment of 1687 brownfield properties,
cleanup of 116 properties, redevelopment of 151 properties, and a
determination that 590 properties did not need additional cleanup. To
date, over 5,800 jobs have been generated as a result of the program.
Pilot communities have reported a leveraged economic impact of over
$1.8 billion.
As EPA works to implement a comprehensive brownfields strategy, the
Agency has developed a ``second-stage'' type of brownfields pilot
program. Those pilots, known as the Brownfields Cleanup Revolving Loan
Fund (BCRLF) Pilots are designed to enable eligible States, Tribes, and
political subdivisions to capitalize revolving loan funds for use in
the cleanup and sustainable reuse of brownfields. EPA's goal for these
pilots is to develop revolving loan fund models that can be used by
communities to promote coordinated public and private partnerships for
the cleanup and reuse of brownfields. Eligible applicants for BCRLF
pilots are entities previously awarded brownfield assessment pilots. In
addition, coalitions formed among these entities and political
subdivisions with jurisdiction over sites that have been the subject of
a targeted brownfield pilot are eligible for BCRLF awards.
To date, 68 BCRLF pilots have been awarded. These pilots represent
88 communities, and include pilot awards to individual eligible
entities and to coalitions. Three BCRLF loans have been made. The
Stamford, CT, pilot has issued two loans. The first loan, for $250,000,
will be used to clean up property that is part of a larger waterfront
redevelopment project. This loan is expected to leverage $50 million of
private redevelopment funds and generate 200 construction jobs and 12
full-time permanent jobs. The Las Vegas, NV, BCRLF pilot has made a
$50,000 loan to clean up the property of a former National Guard armory
site. This cleanup has already been completed. EPA is in the process of
reviewing fiscal year 2000 BCRLF pilot applications representing more
than 60 communities. Among other requirements, pilot applicants are
being asked to demonstrate an ability to manage a revolving loan fund
and environmental cleanups. The Agency anticipates announcements in May
of new pilot awards of up to $500,000 each and has requested funding to
support BCRLFs in fiscal year 2001 as well.
The Brownfields National Partnership continues to support
brownfields reuse through work with a variety of stakeholders. It
represents a multi-faceted partnership among Federal agencies to
demonstrate the benefits of coordinated and collaborative activity on
brownfields. To date, the partners estimate spending more than $385
million for brownfields work, with another $141 million in loan
guarantees. The centerpiece of the National Partnership was designation
of 16 Brownfields Showcase Communities in 1998. These Showcase
Communities are distributed across the country and vary in size,
resources, and community type. The Federal partners plan to designate
10 new Showcase Communities in fiscal year 2001.
To help local citizens take advantage of the new jobs created by
assessment and cleanup of brownfields, EPA began its Brownfields Job
Training and Development Demonstration Pilot program in 1998. To date,
EPA has awarded 21 pilots to applicants located within or near
brownfield communities. Colleges, universities, nonprofit training
centers, and community job training organizations, as well as States,
Tribes, and communities, were eligible to apply for these pilots. In
both fiscal year 2000 and fiscal year 2001, EPA plans to fund 10
additional job training pilots at up to $200,000 each. In addition, EPA
will continue to provide $3 million to the National Institute for
Environmental Health Sciences to support worker training at brownfields
sites.
Superfund Redevelopment Initiative
The Brownfields Initiative foreshadowed an increased interest in
the reuse of Superfund sites. Now that the Agency has analyzed and
documented reuse that already is occurring at certain Superfund sites,
the Superfund Redevelopment Initiative (SRI) has been formed to
document these successes and to explore additional opportunities at
other sites engaged in the selection of Superfund remedies and designs.
Through a program of pilots, policies, and promotion, EPA and its
partners are working to ``recycle'' sites into productive use that once
were thought to be unusable, without sacrificing Superfund cleanup
principles. EPA has selected 10 pilot sites already and, by the end of
fiscal year 2000, plans to complete a competitive process to choose 40
additional pilot sites. Eligible local governments receive direct
financial assistance of up to $100,000 to undertake reuse assessments
and undertake public outreach. EPA will offer facilitation service to
communities to support reuse efforts and has established a peer
matching program to enable local governments to share their experiences
about successful Superfund reuse projects.
Successful Superfund site reuse is being demonstrated at the
Industriplex site, in Woburn, Massachusetts. Through a private/public
partnership, this site will become a regional transportation center
with over 200,000 square feet of retail space and potentially over
750,000 square feet of hotel and office space. An open land and
wetlands preserve will also be created as a part of the ``recycling''
of this site. Another example of reuse at Superfund sites is the
Anaconda Smelter NPL site, in Anaconda, Montana, which has become a
world-class Jack Nicklaus golf course. At other Superfund sites, major
national corporations, including Netscape, Target stores, Home Depot
stores, and McDonalds, have established businesses. Sites have been
redeveloped into residences, libraries, athletic fields, community
parks, wetlands, and habitat preserves. Over 150 sites are in actual or
planned reuse. At these sites, more than 13,000 acres are now in
ecological or recreational reuse. Approximately 11,000 jobs,
representing $225 million in annual income, are located onsites that
have been recycled for commercial use.
Removing Barriers to Reuse
At some sites, the potential threat of CERCLA liability may in some
circumstances be a barrier to the reuse of the property. EPA is
continuing its efforts to negotiate prospective purchaser agreements
and issue comfort/status letters in order to clarify CERCLA liability
at sites and facilitate reuse of contaminated properties. EPA has
entered into more than 120 Prospective Purchaser Agreements (PPAs) to
facilitate beneficial reuse and has also issued over 500 comfort/status
letters in order to clarify Federal Superfund interest in sites.
In the summer and fall of 1998, EPA undertook a survey effort to
gather information on the impacts of the PPA process. Survey data (for
PPAs completed through June 1998) indicate that redevelopment projects
cover over 1500 acres, or 80 percent of the property secured through
PPAs. EPA regional personnel estimate that nearly 1700 short-term jobs
(e.g., construction) and over 1700 permanent jobs have resulted from
redevelopment projects associated with PPAs. An estimated $2.6 million
in local tax revenue for communities nationwide have resulted from
these projects. In addition, EPA regional staff estimate that PPAs have
spurred redevelopment of hundreds of thousands of acres of property.
Federal Facility Redevelopment
Through EPA's Base Realignment and Closure (BRAC) program, over 850
base closure documents have been reviewed at 108 major closing military
bases. These BRAC documents articulate the environmental suitability of
the property for lease or transfer.
Wurtsmith Air Force Base, located on more than 5,000 acres in
northeast Michigan, stood ready for more than 70 years to support
strategic bombing operations worldwide. When the decision was made in
1993 to close Wurtsmith Air Force Base, a Base Closure Team (BCT)
consisting of representatives from EPA, the Air Force, and the Michigan
Department of Environmental Quality, was formed to clean up
environmental contamination at the site. The BCT used an innovative
cleanup technology to cut the cost of cleanup by a third and reduce the
planned cleanup time by 40 percent. To enhance economic redevelopment,
the BCT worked with the Northeast Michigan Community Service Agency to
use base structures for approximately 150 low-income families as a
replacement for substandard housing in six counties. The BCT earned
national recognition for this unique reuse plan. As a result of EPA's
involvement in the BRAC program, cost savings in excess of $275 million
have been documented.
SUPERFUND REAUTHORIZATION
As the result of the progress made in cleaning up Superfund sites
in recent years, and the program improvements resulting from EPA's
Administrative Reforms, there is not a need for comprehensive
legislation. Comprehensive legislative proposals seriously could
undermine the current progress of the program and weaken current law by
creating barriers to cleanup, carving out overbroad liability
exemptions, and undermining the Federal safety net. Comprehensive
legislation could actually delay cleanups by creating uncertainty and
litigation.
The Administration would support targeted liability relief for
qualified parties that builds upon the current success of the Superfund
program. We believe that targeted legislation to clarify liability
provisions in the statute enjoys broad bipartisan support and would be
useful in speeding the cleanup of brownfields, including;
prospective purchasers of contaminated property;
innocent landowners; and
contiguous property owners.
This legislation should also provide funding for brownfield
assessment and cleanup through grants and loans. Further, the
legislation should provide support for effective State Voluntary
Cleanup Programs, however, the Federal safety net must be preserved to
address circumstances which may present an imminent and substantial
endangerment. The Administration also supports targeted legislation
that addresses the liability of small municipal waste generators and
transporters.
In addition, legislation to support the President's Budget is also
needed to reinstate the Superfund taxes, and to provide EPA with access
to mandatory spending. The Superfund tax authority expired December 31,
1995. The President's fiscal year (FY) 2001 Budget requests
reinstatement of all Superfund taxes (including excise taxes on
petroleum and chemicals, and a corporate environmental tax). The Trust
Fund balance (unappropriated balance) was roughly $1.5 billion at the
end of fiscal year 1999. The Trust Fund balance will be approximately
$200 million at the end of fiscal year 2001.
In the absence of the taxes, we estimate a windfall of
approximately $4 million per day for those parties that would normally
pay the tax. To date, the Trust Fund has lost approximately $5 billion
as a result of the failure of Congress to reinstate the taxes. This $5
billion windfall has been passed on to those that would normally be
funding cleanups, and the need for appropriations from general revenue
in order to fund cleanups mean that the burden of these costs is
shifted to the tax-paying public.
FUTURE SITE CLEANUP CHALLENGES
EPA has made a great deal of progress, but the job is not done.
Environmental contamination continues to be a concern at a large number
of properties across the United States. Brownfields, which are
abandoned and contaminated properties once used for industrial and
commercial purposes, generally pose a low risk to human health and the
environment and best are addressed through local, State, or Tribal
authorities. EPA's job at brownfields sites principally is to provide
technical and financial assistance to these authorities in order to
build the capacity of their brownfields programs. A much smaller number
of higher-risk sites, however, pose a more serious threat to public
health and the environment and would qualify under EPA's Hazard Ranking
System (HRS) for placement on the NPL for cleanup. A mix of approaches
will need to be employed in the future to address these problems,
including tools that were not available 20 years ago when Congress
enacted CERCLA. Although alternatives involving Federal, State, and
other authorities exist for managing the cleanup of these sites, in
some cases the best alternative will be listing these sites on the NPL.
EPA, State, and local authorities must work together with private
parties and community interests to ensure that the most appropriate
approach is taken in each case to address any property with real or
suspected environmental contamination. EPA long has recognized that the
assessment and cleanup of properties with potential or actual
environmental contamination is a shared responsibility. What matters
most is that these sites are addressed as efficiently and as
effectively as possible.
EPA will face three central challenges in the future as it
continues its work to address our nation's site contamination problems.
A primary focus of the Superfund program is to continue the cleanup of
NPL sites, as well as to continue to address contamination problems
through removal actions at sites across the country. Second, through
grants and technical assistance, EPA will continue to serve as a
catalyst to promote brownfields cleanup and redevelopment. Third, new
sites posing serious threats to human health and the environment will
be identified, and EPA has a shared responsibility with the States and
other authorities to work with potentially responsible parties (PRPs)
and the community through a variety of means to get these sites cleaned
up.
Current Sites on the NPL
Superfund's immediate priority is the cleanup of sites on the
current NPL. The Agency will continue to emphasize the completion of
construction at NPL sites, and, as in the last several years, EPA will
maintain its current construction completion goal of 85 sites for
fiscal year 2000. The program is on target to achieve the President's
goal of 900 construction completions by the end of fiscal year 2002. At
the same time, we will continue to employ the Superfund Administrative
Reforms to ensure fairness, effectiveness, and efficiency in the way
cleanups are conducted. We will work closely with PRPs to leverage
resources whenever possible to get the job done. By working with
communities to ensure the selection of appropriate remedies at sites,
EPA will strive to foster productive reuse of Superfund properties that
are cleaned up.
In addition to the high priority EPA places on construction
completion at NPL sites, the Agency will continue its efforts to ensure
that remedies in place remain protective over the long term. It is
important to understand that the job of cleanup does not end when a
site achieves construction completion, and that Federal oversight is
necessary to ensure the cleanup's long-term protectiveness. In the case
of groundwater contamination, for example, treatment technologies in
place may require 10 years or more to achieve cleanup goals, and
groundwater must be monitored thereafter. CERCLA requires that EPA
conduct a 5-year review at each Superfund site where wastes remain in
place to make sure that the remedy remains effective and that the
community is protected. This statutory requirement and other
responsibilities associated with the Agency's role in ensuring the
protectiveness of cleanups over the long term, such as oversight of
operation and maintenance activities, underscore the need for
continuing Agency resources for these purposes.
Brownfields
A second EPA priority is to continue to promote brownfield
assessments and cleanups. Brownfields, found in almost every community,
represent by far the largest number of properties affected by concerns
related to environmental contamination. In 1995, the General Accounting
Office (GAO) estimated that approximately 450,000 brownfields exist in
this country. These sites typically do not pose the type of risk
addressed by Superfund NPL cleanups.
Through pilots, and in partnership with a wide range of
stakeholders, EPA continues to provide technical assistance and seed
money to local, State, and Tribal entities engaged in the
revitalization of brownfields properties in order to build the capacity
of brownfields programs. EPA's role is to empower these government
authorities, community groups, and others to achieve the assessment,
safe cleanup, and successful reuse of brownfields. To date, EPA has
entered into Memoranda of Agreement (MOAs) with 14 States to facilitate
the cleanup of contaminated sites that generally pose lower risks than
sites EPA would consider listing on the NPL. In fiscal year 2000, EPA
is providing States and Tribes with $10 million to support the
development and enhancement of effective State Voluntary Cleanup
Programs (VCPs).
Sites Brought to the Attention of Superfund
Third, EPA will ensure that sites not presently being addressed and
that present serious threats to human health and the environment are
cleaned up. Through identification by States, private citizens, and
others, EPA has catalogued almost 43,000 sites nationally in its
CERCLIS data base. EPA has performed preliminary assessments at 41,000
of these CERCLIS sites and more detailed investigations at 20,000. The
Agency has archived close to 32,000 of the 43,000 sites for which no
further action under Superfund is necessary. EPA either is in the
process of investigating the remaining sites or considering their
listing on the NPL. In 1998, the GAO estimated that, 232 sites were
likely candidates to be placed on the NPL in the future out of a
universe of nearly 1,800 CERCLIS sites awaiting a listing decision. It
is important to be aware that these figures do not include the
approximately 500 new sites added to the CERCLIS inventory each year,
most of which have been pre-screened. Since the GAO analysis, we know
that only about a quarter of the sites EPA has proposed for listing
were among the 232 sites identified in the GAO report in 1998. Others
include more recently identified sites or sites for which Governors
have specifically requested a proposed NPL listing. The Agency has
averaged 28 listings per year for the past 7 years.
The decision how to address the cleanup of sites brought to EPA's
attention through CERCLIS depends on a range of technical, policy and
resource considerations, as well as other site-specific factors. Many
of these sites can be addressed under State VCPs and State Superfund
programs. In other cases, PRPs may clean up sites of potential Federal
interest either before or after proposal to the NPL, and EPA will
continue to use its enforcement authorities to oversee the cleanup. In
still other cases, EPA may determine that NPL listing is the most
appropriate way to clean up a site, such as sites which present
complicated intergovernmental or stakeholder issues or sites where a
State requests a listing. The Agency continues to support a cooperative
approach with the States on NPL listing and will continue to request a
Governor's concurrence prior to any proposed or final NPL listing
decision. Listing on the NPL would be necessary for more sites were it
not for the availability of these alternative approaches to site
cleanup.
Conclusion
With the success of EPA's Administrative Reforms, the Superfund
program now is fairer, faster, and more efficient. The significant
progress achieved during the Clinton administration in cleaning up
hazardous waste sites has made comprehensive Superfund reform
unnecessary. However, the Administration believes that an agreement can
be reached with Congress on bipartisan targeted brownfields legislation
this year. We look forward to building upon the success of our
Administrative reforms and in partnership with State and local
governments, communities, and the private sector, to ensure the
protection of human health and the environment through the cleanup of
our Nation's hazardous waste sites.
______
RESPONSES BY TIMOTHY FIELDS, JR., TO ADDITIONAL QUESTIONS FROM
SENATOR BOXER
REMEDIATION SCHEDULE
Question 1. There appears to be no incentive for the Navy to meet
its timeliness for the Hunters Point Shipyard cleanup, since every new
Federal Facilities Agreement (FFA) schedule shows the same CERCLA
milestones occurring farther out in time. What options are available to
EPA under CERCLA to enforce these schedules? Specifically, what steps
will EPA take to ensure that the Navy completes remediation of the
Shipyard in timely manner?
Response. EPA is committed to ensuring that the Navy maintains the
project schedules as outlined in the FFA in order to complete
remediation and transfer of the Hunters Point Shipyard in a timely
manner. EPA has diligently enforced provisions in the FFA to ensure
that any extension requests submitted by the Navy are necessary and
justifiable under the FFA. Per the FFA, schedules shall be extended
upon receipt of a timely request for extension and when good cause
exists for the requested extension. If the Navy fails to provide good
cause for the extension, then EPA may deny the request and the Navy may
invoke the dispute resolution procedures of the FFA. Further, EPA may
assess a stipulated penalty against the Navy if it fails to comply with
any terms of the FFA.
REMEDIATION TO THE REDEVELOPMENT REUSE PLAN
Question 2. What is the EPA's policy regarding remediation of
closed military bases to the approved local Reuse Plan? Where else in
the country has the EPA supported such efforts? Will EPA support a
cleanup at Hunters Point Shipyard that allows for the full
implementation of the Reuse Plan?
Response. EPA works closely with its state and military service
counterparts to expedite cleanup and promote reuse of closed and
closing military bases. As a member of the Base Closure Team (BCT), EPA
provides technical assistance on human health and environmental issues
related to cleanup and reuse plans. This assistance is provided to the
Navy and state counterparts, as well as the Restoration Advisory Board,
local government, the Local Reuse Authority and the community at large.
Since the military services are the lead cleanup agencies, it is
ultimately their responsibility to come to agreement with local reuse
authorities on reuse plans. Federal legislation has established a
process to reach these decisions. There are many examples throughout
the country of EPA's support of, and cooperation on, reuse plans. Three
site-specific examples are mentioned below. These examples illustrate
both EPA's and the services' commitment to meeting reuse needs of the
community.
At Fort Devens, MA, the Base Closure Team (BCT) was
successful in integrating many of the investigations of the site,
eliminating an estimated 4 years of environmental study and saving
approximately $5 million. The BCT also worked closely with the Local
Reuse Authority and surrounding communities during the investigation
and cleanup to address local concerns and ensure that cleanup was
consistent with future uses of the property. By the time Fort Devens
closed in 1996, the former Army installation had begun its
transformation into a site for public and private use.
Bergstrom Air Force Base, TX, was placed on a fast-track
cleanup schedule so it could house the Austin-Bergstrom International
Airport by 1999, less than 5 years after cleanup and construction
activities began. A team of city and state agencies, EPA and the Air
Force Base Conversion Agency expedited site investigation and cleanup
plans to meet the airport opening's deadline. In particular, the BCT
agreed to reduce review times for documents, incorporated flexibility
into the cleanup process and kept lines of communication open to ensure
that the cleanup met community needs. Relocating Austin's airport to
Bergstrom saved the city an estimated $200 million it would have spent
to build a new airport, and eased noise problems at the old site.
The Base Closure Team at Naval Air Station Cecil Field,
FL, cut 5 years from the cleanup schedule and avoided more than $17
million in costs. The BCT streamlined the assessment of more than 270
sites by targeting sampling and selected the most cost-effective
cleanup techniques that met environmental requirements. The team also
developed an approach for reviewing data as they were collected in the
field and collaboratively choosing their next step. As a result, work
plans were approved in hours, instead of days, and field crews could
move quickly to the next phase of investigation. The BCT's cooperation
and pursuit of innovative solutions resulted in tremendous time and
cost savings, and expedited the creation of new jobs, transportation
and recreation opportunities for the Jacksonville community.
EPA supports cleanup at Hunters Point Shipyard that allows for the
full implementation of the local reuse plan. Decisions for remediation
at Hunters Point Shipyard should be based on the most reasonably
anticipated reuse for specific parcels of the Shipyard, as specified in
the approved City of San Francisco reuse plan and in accordance with
the process described in the National Contingency Plan (40 CFR 300).
EPA will continue to support a CERCLA cleanup at Hunters Point Shipyard
that is compatible with the reuse scenarios currently outlined in the
reuse plan.
IMPOSITION OF LAND USE CONTROLS
Question 3. When making the decision whether to accept such
restrictions at the Shipyard, how is Community Acceptance, the ninth
criteria in the National Contingency Plan (NCP), taken into
consideration?
Response. Community acceptance is one of the nine criteria
considered during the evaluation of feasibility study (FS)
alternatives, as specified in the National Contingency Plan. Community
acceptance is considered a modifying criteria. That is, it is assessed
primarily following public comment on the remedial investigation (RI)
and FS report and the Proposed Plan, because information on community
acceptance may be limited prior to the public comment period.
It is EPA's position that the Bayview Hunters Point community
should be continually informed about and involved in the cleanup
process at Hunters Point Shipyard. To achieve this, representatives of
the Bayview Hunters Point Community and the City of San Francisco have
been invited to participate in project meetings and to review project
documents throughout the RI/FS process. Further, EPA has funded a
Technical Assistance Grant (TAG) for the Hunters Point Shipyard
Superfund site. The TAG enabled a Bayview Hunters Point community group
to hire an independent technical advisor to help the local community
members understand and comment onsite-related information, and thus
better participate in cleanup decisions. The TAG technical advisor
reviews and comments on Hunters Point Shipyard project documents and
regularly participates in project team meetings.
In addition, the Navy has established a Restoration Advisory Board
(RAB) for the site. The RAB is an advisory group that the Navy consults
for input on the investigation and cleanup of Hunters Point Shipyard.
The RAB is composed of representatives of residents, businesses and
community groups of the Bayview Hunters Point neighborhood which
surrounds the shipyard. Representative of the City of San Francisco are
also members of the RAB. RAB meetings are held monthly in the Bayview
Hunters Point neighborhood. At the RAB meetings, the Navy provides
updates on the status of the cleanup and responds to requests for
information from RAB members. EPA attends and actively participates in
the monthly RAB meetings, to ensure that community concerns are
adequately understood and addressed.
Question 4. In EPA's analysis of such restrictions, does it
consider whether the up-front cost savings to the Navy of such
restrictions outweighs the long-term cost to the City of maintaining
them in perpetuity? Furthermore, does EPA consider what effect such
controls would have on the City's ability to implement its Reuse Plan?
Response. During the feasibility study (FS) phase of the project,
cleanup alternatives will be developed to address contamination at
Hunters Point Shipyard. These FS alternatives are subjected to a nine
criteria analysis, as required by the Superfund statute. These nine
criteria include an evaluation of overall protection of human health
and the environment, reduction of toxicity, mobility and volume, long
term effectiveness, short term effectiveness, cost and community
acceptance. The nine criteria analysis is conducted to ensure that the
FS alternatives are protective, cost effective and that they address
the concerns of the community, including those of the City of San
Francisco.
Although it is still early in the RI/FS process for Parcels C, D, E
and F at Hunters Point Shipyard, EPA intends to ensure that the Navy
considers both capital and operation and maintenance costs of FS
alternatives that both include and do not include institutional
controls so that a comparative analysis of the impact of institutional
controls on protectiveness, cost and other criteria can be evaluated,
particularly in light of the reasonably anticipated future reuse. In
addition, EPA supports response actions that will facilitate
implementation of the Reuse Plan for the site.
CONSIDERATION OF ENVIRONMENTAL JUSTICE
Question 5. Does EPA believe that the Shipyard cleanup has met the
goals of Executive Order 12898 (Federal Actions to Address
Environmental Justice in Minority Populations and Low-Income
Populations) in terms of both the selected cleanup remedies as well as
prioritization for Federal cleanup funds?
Response. If the Navy agrees to select and implement cleanup
remedies for Hunters Point Shipyard in accordance with the City of San
Francisco's Reuse Plan, which was developed with input from the Bayview
Hunters Point community, EPA believes the overall goals of Executive
Order 12898 largely will be addressed.
__________
STATEMENT OF LOIS J. SCHIFFER, ASSISTANT ATTORNEY GENERAL, ENVIRONMENT
AND NATURAL RESOURCE DIVISION, DEPARTMENT OF JUSTICE
INTRODUCTION
Good afternoon Mr. Chairman, and Members of the Subcommittee. I am
pleased to have this opportunity to talk to you this afternoon about
the current status of the Comprehensive Environmental Response,
Compensation, and Liability Act (CERCLA), or more commonly known as
Superfund. As the Assistant Attorney General for the Environment and
Natural Resources Division, I am responsible, together with EPA, for
Federal enforcement of this country's environmental laws, including
Superfund.
You have just heard from Tim Fields about our great progress in
making the Superfund program fairer, faster and more efficient. I would
like to focus on the enforcement side of the program. The
``enforcement'' side of the Superfund program refers to EPA's and the
Department of Justice's actions to assure that the parties responsible
for creating Superfund sites (know as potentially responsible parties,
or ``PRPs''), clean up these sites. During the 20-year history of
Superfund, the enforcement program has evolved from one that focused on
litigation to a program in which most PRPs enter into settlements or
voluntarily comply with administrative orders, rather than litigating
with the government. In order to understand the current status of
enforcement efforts under the program it is useful to understand this
evolution. The Superfund program you will hear about today is not the
program that existed throughout the 1980's and even in the early
1990's.
The Superfund program was enacted in 1980 in response to a public
outcry over environmental contamination and human health hazards
discovered at such notorious hazardous waste disposal sites as Love
Canal and Valley of the Drums. Decades of careless dumping and improper
disposal led to a proliferation of dangerous hazardous waste sites
across the country. These sites were contaminating soil and
groundwater, fouling our drinking water sources, and threatening the
health of our communities.
CERCLA was enacted to provide the Federal Government with the
authority and funding to clean these sites up. Congress also decided
that the parties that created these environmental hazards should pay
for the cleanup. This ``polluter pays'' principle is implemented
through the liability and enforcement provisions of the statute.
In the early years after CERCLA's enactment in 1980, the Federal
Government sought to enforce the liability provisions of the statute
through lawsuits brought in Federal court seeking injunctive relief
under section 106 of the statute. As with any new statute, many legal
issues had to be resolved, and litigation proceeded slowly. Moreover,
courts were called upon to resolve complicated technical issues
regarding what would be an appropriate remedy. Given their inexperience
in this area and the lack of precedent, the courts were understandably
slow in resolving these issues. Thus, the 1980's were marked by
extensive litigation and a relatively slow pace of cleanups.
In 1989, in a desire to accelerate the pace of cleanups, EPA and
the Department reviewed their approach to enforcing Superfund liability
and decided that litigating liability issues first was not the fastest
way to get many sites addressed. As a consequence EPA and the
Department developed the ``Enforcement First'' policy under which we
operate today. Under this revised approach, the Federal Government
first looks to responsible parties--either under a settlement
agreement, or, where settlement cannot be reached, through the issuance
of an administrative order--to clean up a site, rather than undertaking
the cleanup itself and then suing the responsible parties to recover
the costs. This approach allows Federal dollars to be focused more
quickly and efficiently onsites where there are not viable responsible
parties, and more effectively combines public and private resources to
get cleanups started.
In addition to this ``Enforcement First'' policy, EPA and the
Department have adopted and implemented a series of administrative
reforms over the past 6 years that address stakeholder concerns about
the fairness of the liability system. We have recognized the need to
address some of the past concerns raised about Superfund and have taken
significant steps to reduce litigation, to promote earlier settlements,
and to optimize fairness concerns in the application of Superfund's
liability scheme. By streamlining the process by which we resolve our
claims at Superfund sites, we are accelerating the cleanups themselves
and increasing the pace at which contaminated properties can be moved
back into viable economic use--the critical first step toward many
brownfields development projects.
De Minimis and De Micromis Settlements
One of the most important of these reforms involves the
Administration's efforts to identify and resolve the liability of small
volume contributors, leading to what we call de minimis and de micromis
settlements. EPA guidance defines these terms, but basically, a de
micromis party is one whose contribution of waste at a site is truly
small, and whose costs in hiring a lawyer, and negotiating a
settlement, would dwarf any amount the party could reasonably be
expected to contribute to cleanup costs. By contrast, a de minimis
party is one whose contribution of waste, while more significant than a
de micromis party's, is relatively minor, considering both volume and
toxicity of the waste, in comparison to that of a ``major'' party at
the site, and from whom we would seek a cash settlement, rather than
performance of work. Some of our de minimis settlements, at sites with
a large number of parties, have yielded over $1 million in proceeds.
These proceeds inure to the benefit of the major contributors doing the
cleanup work.
I am particularly pleased to tell you about the successes we have
realized as a result of our de micromis policy. If a party is a truly
tiny contributor, our policy is to deter other parties from suing de
micromis parties and, if they do, then settling with those parties for
little or no payment.
For example, at the Petrochem/Ekotek Site in Utah, we knew that the
parties we had sued had threatened to sue hundreds of de micromis
parties if they did not accept their settlement. To prevent this, EPA
took out advertisements in Salt Lake City area newspapers and on the
radio urging de micromis parties to refuse that offer. The United
States also sought, and received, a hearing before the District Court
Judge, and argued that the settlement demand was inappropriate. As a
result, the defendants agreed to withdraw their demand against the de
micromis parties.
In addition, we have taken steps to discourage the joinder of de
micromis parties in the first instance. For example, a settlement
involving the Bypass 601 Superfund Site, a former battery recycling
facility in North Carolina, gave contribution protection to some 2400
parties who contributed less than 319 pounds of lead-bearing materials,
but imposed no payment obligation upon them. Rather, the decree
requires that the major contributors, who are the owner/operator
defendants and 450 large-volume generator defendants, pay EPA's past
costs of $4 million, implement a remedy estimated to cost between $40.5
and $100 million, and agree not to assert any claims at all against
persons meeting de micromis criteria, whether or not those persons are
parties to the decree.
We think that our policy protecting de micromis parties is being
taken seriously by the regulated community, and that has deterred
efforts to add de micromis parties at Superfund sites. Moreover, just
this past summer in the Keystone case in Pennsylvania, over the
objection of several of the main owner/operator and generator
defendants, Federal District Court Chief Judge Sylvia Rambo approved
200 proposed de micromis settlements, finding that they were fair,
reasonable and in accordance with CERCLA's objective.
With respect to de minimis parties, we have placed a priority on
achieving quick, efficient resolutions of the liability of these small
volume contributors to protect these contributors from burdensome
contribution litigation. Through model settlement decrees and
guidances, we have been successful at getting these contributors out of
the system quickly. As of a year ago, we and EPA had achieved over 430
settlements with over 21,000 small-volume contributors, protecting
these parties from expensive private party litigation. Nearly two-
thirds of these de minimis settlements were reached in the last 4
years.
Orphan Share Policy
The Department often exercises its enforcement discretion to
compromise claims in order to achieve comprehensive settlements with
responsible parties, taking into account numerous equitable
considerations. Through this enforcement discretion we have moved
Federal dollars into promoting cleanups. We also cooperate with EPA in
implementing the orphan share policy, another reform that has increased
the fairness of Superfund settlements. At many Superfund sites, parties
that individually or collectively were responsible for a share of the
waste disposed at a site may no longer exist or are bankrupt. In order
to promote fairness and achieve settlements, EPA and the Department of
Justice developed the ``orphan share'' policy, under which the United
States can compensate settling parties for a portion of the ``orphan
share.'' This share will be recognized primarily through a compromise
of past costs or a reduction of future oversight costs. EPA issued its
Interim Guidance on Orphan Share Compensation in June 1996 and since
then the Department has moved aggressively to put this concept into
practice. Over the last 4 years, the United States has offered orphan
share compensation of more than $175 million at 98 sites to responsible
parties willing to negotiate long-term cleanup settlements.
Municipal Settlement Policy
The municipal settlement policy reflects the fact that municipal
waste typically is not as toxic as industrial waste, and that it is the
presence of hazardous industrial wastes disposed in municipal landfills
that generally drives costly remedies. It also addresses the unique
position of municipal owners and operators of co-disposal landfills.
The municipal policy provides a fair and efficient basis for settling
with municipalities and other generators and transporters of municipal
solid waste (MSW) that are potentially liable under Superfund. The
policy establishes a formula for calculating a municipality's share of
response costs at a site based on the typical costs for cleaning up the
waste found in a municipal solid waste landfill (as compared to
hazardous wastes). It also provides a presumptive settlement percentage
of 20 percent for municipal owners and operators of co-disposal sites
where there are other viable PRPs to share the cost of cleanup. This
new policy streamlines the settlement process and protects
municipalities, and generators and transporters of municipal solid
waste, from expensive transactional costs. Our use of the policy
methodology as a basis for settlement was recently endorsed by the U.S.
District Court for the Southern District of Ohio as being reasonable,
fair, and consistent with CERCLA in approving a consent decree relating
to the Fultz Landfill near Byesville, Ohio. The United States is in the
process of finalizing several other settlements on the basis of the
municipal settlement policy. Moreover, we have learned that the policy
has been successful in promoting several private party settlements by
providing a fair methodology by which to determine the share of
municipal solid waste parties.
Other Administrative Reforms
Other administrative reforms that have also led to faster, fairer,
and more efficient settlements include the use of mixed work/mixed
funding agreements, settlements that take into consideration a party's
``ability-to-pay,'' and the use of interest-bearing special accounts.
Under the last of these, the United States will agree to hold monies
recovered in settlement in special accounts for later Superfund cleanup
at the same sites where the settlement occurred. Through 1999, the
United States has collected over $486 million and placed it in 133
special accounts, which have generated over $85 million in interest.
These accounts ensure greater fairness in the settlement process by
taking monies recovered from parties that simply ``cash out'' their
liability and setting them aside for later use by parties that are
performing the cleanup work. This reform makes more monies available
for actual cleanup, which can be an important factor in reaching a
successful settlement.
EPA and the Department of Justice are also doing a much better job
of making sure that all non-de minimis responsible parties involved at
a site are identified and pursued by the government. Complaints were
made in the early days of the Superfund program that EPA chose to
pursue only a handful of ``deep pockets'' at a site, leaving these
parties with the responsibility to find and pursue in contribution
actions other parties responsible at a site. It is the government's
policy to undertake a thorough PRP search at every site and to make
sure that as many of those parties as possible participate in
settlement at the site so as to spread the burden of site cleanup among
all parties.
Another important way the Department ensures fairness in the
enforcement process--and which reinforces the importance of
settlement--is by actively pursuing those parties that choose not to
settle. Indeed, in a recent decision, U.S. v. Occidental Chem. Corp.,
200 F.2d 143 (3rd Cir. 1999), the Third Circuit upheld the Federal
Government's authority to enforce administrative orders issued to non-
settling parties that direct them to participate in site work being
done by other parties. This decision has strengthened our ability to
ensure greater fairness at Superfund sites. For example, at the Lipari
Superfund site in Gloucester County, New Jersey, Owens-Illinois, Inc.
chose not to join a settlement the United States reached with numerous
parties and instead pursued years of litigation. When it finally choose
to settle in 1998, Owens was required to pay $13.8 million in
settlement for cleanup costs. By refusing to cooperate, Owens-Illinois
incurred substantially higher costs than it would have had it initially
agreed to take responsibility for its actions.
Alternative Dispute Resolution
Another way that the Department has sought to make the Superfund
enforcement process less time-consuming and costly is through the use
of alternative dispute resolution, or ADR. The Department of Justice is
committed to the use of ADR to assist in appropriate and efficient
resolution of cases and issues. ADR can be a useful tool in focusing
efforts on protecting public health and the environment, rather than on
protracted litigation. We have found ADR to be particularly helpful in
complex multi-party CERCLA cost-recovery actions, which require
enormous time and resources and demand immediate steps to address
environmental contamination.
ADR has led to many success stories in CERCLA cases, including
cases which involved much more than simple cost recovery issues. An
example is the Landfill & Resource Recovery Superfund Site in Rhode
Island. The parties at the site were many and varied the United States,
the State of Rhode Island, four owner/operators of the Site, 12
generators and transporters of hazardous substances disposed of at the
Site, and two ``ability to pay'' parties. And the issues were complex,
involving claims under section 107 of CERCLA for reimbursement of past
and future response costs, implementation of response actions, and
civil penalties for failure to comply with a Unilateral Administrative
Order (``UAO'') issued under section 106 of the Act. Mediation enabled
us to negotiate a settlement among these parties that resolved all
outstanding issues much more quickly than might otherwise have
occurred, saved the parties from costly transaction expenses, and
reimbursed the government for nearly all expected Site costs.
The parties began negotiations under the First Circuit's Court of
Appeals Mediation Program (CAMP) and ultimately reached a settlement
through the assistance of U.S. District Court Judge Mazzone. The
consent decree resolved the United States' complaint, a State court
action related to the Site, and an appeal in the First Circuit
challenging an earlier de minimis settlement. This settlement
determined a reasonable settlement payment for the ``ability to pay''
parties, and obligated the remaining settling parties to perform
operation and maintenance of the remedial action and to pay past and
future oversight costs, as well as a civil penalty of $400,000 for
noncompliance with the UAO. It also resolved natural resource damage
claims of the Department of the Interior and provided $525,000 to
purchase wetlands or related property within the Blackstone River
Valley National Heritage Corridor. When combined with previous
settlement recoveries for this Site, and the performance of the
remedial action by the settlors, this mediated settlement will result
in a recovery of 97 percent of expected Site costs.
Just this month we achieved a superb settlement involving the
Auburn Road Landfill Superfund Site in Londonderry, NH, through a
voluntary mediation. United States and the State of New Hampshire v.
Exxon Corporation, et al. (D.N.H.). On March 10, 2000, a consent decree
was entered that resolves the government's claims against four
defendants and twenty-seven third-party defendants. Under the proposed
decree, the settlors have agreed to perform the remedy and to reimburse
the United States for its past ($5.84 million) and future oversight
costs. The remedy involved operation and maintenance of the landfill
cap, monitoring of ground water, surface water and sediments, and the
performance of any active remediation that EPA may select in the
future.
In addition to resolving the United States' claims, the settling
defendants have agree to reimburse the State for a portion of its past
response costs and to reimburse the Town of Londonderry over $1.7
million in partial reimbursement of the Town's response costs for
constructing the landfill cap. Also, the owner of the Site has agreed
to convey to the Town of Londonderry over 100 acres of property at and
around the Site for beneficial reuse. Finally, the defendants will
collectively pay $125,000 in penalties. These great results were
achieved more quickly and at lower costs to the parties through the
mediation process than would have been possible through litigation.
U.S. v. Allied Signal et al. (D.N.J.) and its companion
contribution action Rollins Environmental v. United States (D.N.J.)
provides another good example of the use of ADR in complex, multi-party
Superfund litigation to resolve cost recovery and contribution
litigation. The Site in question, the BROS Superfund Site in Logan
Township, New Jersey, long considered one of the most technically
challenging sites under the Superfund program, was used as a waste oil
collection facility and chemical waste storage site for three decades.
When it closed in the late 1970's, millions of gallons of waste oil and
other dangerous pollutants were left at the Site, much of it in a
thirteen-acre lagoon--a ``toxic soup'' of waste material. Spills and
leaks from the facility had also contaminated the Site's groundwater
and adjacent wetlands. Mediation resulted in settlement among 80
private parties and several State and Federal agencies.
That settlement, conservatively valued at $221.5 million and one of
the largest ever under CERCLA, covers about 70 percent of the cleanup
costs and requires the private companies to complete the remaining
cleanup of the Site's groundwater and wetlands. The settlement is the
result of more than 2 years of complex negotiations between the Federal
Government, the State, and settling parties. It reflects Superfund
reform policies that allow EPA to share in the cleanup costs when some
of the responsible private parties are defunct or financially
insolvent. Our commitment to ADR led to settlement in record time for a
case of this magnitude.
As demonstrated by these examples, ADR enables parties to create an
environment to explore solutions that may not be obtainable through the
judicial process. The potential for creativity and concomitant
flexibility is invaluable in resolving the difficult problems sometimes
posed in CERCLA cases.
Federal Facilities
In addition to enforcing Superfund, the Department is also
responsible for representing other Federal departments and agencies at
Superfund sites. Federal facilities are also making significant
progress in cleaning up contaminated Federal property under CERCLA.
Federal property must satisfy the same cleanup process and standards as
private property under CERCLA, including the application of State laws
as applicable or relevant and appropriate requirements, participation
by EPA, states, and the public in the cleanup process, and the ability
of states and citizens to judicially enforce inter-agency agreements
under section 120.
Results of Administrative Reforms
What has been the result of all of these administrative reforms?
They allow us to reach settlement more quickly on terms that are
considered more fair to responsible parties. This in turn allows us to
proceed more quickly to cleaning up sites--the fundamental purpose of
the Superfund--so as to ensure protection of human health and the
environment. And faster cleanups mean that these contaminated
properties are available for economic development sooner.
Over 91 percent of sites on the National Priorities List either
have been cleaned up or have cleanup construction under way. Moreover,
the pace of cleanups has accelerated sharply in the last decade.
Whereas only 61 sites were cleaned up during the first 10 years of the
program, some 680 sites now have cleanup construction complete. And we
are getting sites cleaned up faster. In the last 4 years, we've
finished cleaning up more sites than in the previous fourteen. Through
enforcing the Superfund law, the Justice Department has played a
critical role in obtaining these cleanups. The ``Enforcement First''
policy has led to a dramatic shift in the performance of Superfund
cleanups by private responsible parties. Today 70 percent of all NPL
site cleanups are being conducted by private parties. By contrast, 67
percent were conducted by the Federal Government in the early years of
the program. In 1999, we obtained a record $387.3 million in reimbursed
Federal response costs. These numbers demonstrate that the Superfund
program is working in a cost-effective manner to clean up sites. The
Department remains committed to implementing fully the administrative
reforms that have made these results possible and to refining and
improving these reforms, where necessary.
SUPERFUND AND BROWNFIELDS ECONOMIC REDEVELOPMENT
In addition to promoting cleanups through enforcement activities
and associated negotiations, the Department also plays a significant
role in assisting EPA in promoting brownfields redevelopment. The
Department does this in a number of ways. It does this first and
foremost by ensuring cleanup of Superfund sites, many of which are
redeveloped following cleanup and returned to productive use. The
Department also promotes brownfields redevelopment through its
enforcement of other environmental statutes and its use of creative
settlement mechanisms, such as supplemental environmental projects, to
transform blighted properties. A good example of the effective use of
supplemental projects in enforcement is United States v. City of
Chicago, IL (ND Ill, 1999), in which the Department of Justice
negotiated a consent decree resolving EPA's Clean Air Act claims
against the city of Chicago from its operation of a now-closed
municipal incinerator. The decree requires the City to pay a $200,000
civil penalty and complete four projects at a cost of $700,000. The
first two projects require the City to spend $450,000 to remove and
dispose of contaminated soils at two abandoned industrial sites near
the incinerator, thus facilitating the future redevelopment of the two
sites. The third project requires the City to spend $100,000 to
construct a lead-safe house. The lead-safe house will serve as a
temporary residence for low-income Chicagoans while lead-abatement work
is being undertaken in their homes. The fourth project requires the
City to spend $150,000 on a lead-abatement project in northwest
Chicago.
Prospective Purchaser Agreements (``PPAs'')
The Department further supports brownfields redevelopment by
entering into administrative settlements termed ``Prospective Purchaser
Agreements,'' or ``PPAs.'' PPAs can provide prospective purchasers with
certainty regarding Superfund liability that might be assumed in buying
property. At sites where there is already Federal involvement, a PPA
can provide a buyer with protection from Superfund liability for
existing contamination caused by previous property owners. PPAs, of
course, do not provide protection for prospective purchasers if they
create new contamination or make existing site conditions worse.
Further, in return for the government's promise not to sue them,
prospective purchasers usually pay for--or perform--some of the
response actions at a site. In deciding whether to enter into a PPA, we
take into account benefits that the community might receive through
redevelopment and job creation. By providing reassurance to buyers of
contaminated lands regarding their liability, PPAs have significantly
contributed to redevelopment.
It is the responsibility of the Department, exercising the Attorney
General's authority to compromise claims in litigation, to enter into
PPAs and, as the Assistant Attorney General for the Environment and
Natural Resources Division, I am the person who ultimately signs PPAs
on behalf of the Department.
To ensure consistency and to streamline the process of issuing
PPAs, we have worked with EPA to develop a model PPA setting forth
standard language and provisions to be included in such agreements.
This model was issued with EPA's revised guidance on PPAs in July 1995
(60 Fed. Reg. 34,792). Since 1989, when we issued the first PPA, the
Department has approved 152 PPAs. More than 125 of these have been
approved in the last 5 years alone, and even more are in progress. When
EPA conducted a survey last year, the Agency found that redevelopment
projects related to PPAs cover over 1200 acres, have resulted in over
1500 short-term jobs, and have created over 1700 permanent jobs. And
those figures do not reflect the redevelopment that is occurring on
adjacent properties around the country.
One PPA success story that happened just this summer was in the
foothills of the Blue Ridge Mountains in Virginia, about sixty miles
west of Washington, D.C. As part of a consent decree to resolve a case
that had been litigated for years, FMC Corporation agreed to take over
cleanup of the rest of the 440-acre Avtex Fibers Superfund site
(including removing aboveground and underground storage tanks,
hazardous substances, and demolition debris) consistent with
redevelopment plans by the Town of Front Royal and Warren County. One
of the new uses of the site will be as soccer fields, which will be the
first project sponsored by the U.S. Soccer Foundation on a Superfund
site. The PPA that helped to make this consent decree possible will
also help to put dollars into a cleanup in the community, rather than
into litigation of a case in a courtroom. U.S. v. FMC Corp., No. 5:99-
CV-0054 (W.D. VA)
Another recent successful PPA involved the Murray Smelter Site in
Murray, Utah. The site is located right across the street from City
Hall and was the location of one of the nation's largest lead and
arsenic smelters. After the smelter closed in the 1940's, the Site was
taken over by light industry and warehouses. Parts of the facility
served as a dumping ground for cement slabs. Under our settlement,
ASARCO, the company that owned and operated the smelters, will perform
all the remedial action work. In the consent decree for this
settlement, we also entered into a PPA with a developer that provides
an option to purchase the property. The development will include a
hospital, a large movie theater complex, and associated retail
establishments. This type of redevelopment is likely to help revitalize
the City by increasing employment and the city's tax base.
There are numerous other great examples of how PPAs have turned
around brownfields sites. For example, at the Publicker Superfund site
located on the Delaware River in Philadelphia, the United States
entered into a PPA with Holt Cargo Systems, Inc. and several related
entities interested in purchasing and redeveloping this site without
incurring Superfund liability for past disposal activities. The
original owner/operators used this site to manufacture dry ice,
whiskey, industrial alcohol, and other chemicals for many years. After
Publicker ceased manufacturing operations, the site fell into decay and
was used for storage of hazardous chemicals. EPA listed the site on the
NPL and completed the necessary cleanup at a cost of $20 million. Under
the PPA with Holt and others, Holt paid $2.07 million to the United
States and $230,000 to the Commonwealth of Pennsylvania in partial
reimbursement of the cleanup costs. In determining the amount of this
payment, the United States took into consideration the amount it could
expect to recover from liens on the property. The property was
particularly desirable for the expansion of Holt's shipping business,
because it is located on the riverfront in Philadelphia, with ready
access to train and truck transportation. As a direct result of the
PPA, this urban wasteland has become an economically productive port
facility used for transportation and distribution of produce and
freight.
PPAs have also been entered into for smaller properties. At the
Middlefield-Ellis-Whisman (``MEW'') Superfund site, located in Mountain
View, California, the United States has entered into separate PPAs with
several different entities for different parcels of this prior
manufacturing site. The existing Superfund site is being cleaned up
pursuant to administrative orders issued to the site owners and
operators. In two recent PPAs related to this site, one covering a 10-
acre parcel of the site, and one covering 1.17 acres, the United States
agreed to release purchasers of these parcels from Superfund liability
for past contamination. In exchange, the purchasers will each pay
$75,000, and have committed to make land available for the soil and
groundwater treatment remedy (in the first agreement), and committed to
provide access to ensure that existing cleanup activities are
undertaken (in the second agreement). The $75,000 payments will
compensate EPA for administrative costs and provide monies to a
regional cleanup effort. These PPAs will allow the purchasers to build
office buildings on these parcels that will return blighted properties
to productive use and create more than 100 jobs for the local
community.
The Administration has also taken a number of steps
administratively to work with states regarding the treatment of sites
they are handling under their programs. For example, an EPA guidance
specifies that when certain sites are being cleaned up under State
authority, the Agency will defer listing them on the National
Priorities List. (Guidance on Deferral of NPL Listing Determinations
While States Oversee Response Actions (May 3, 1995).) Further, EPA has
signed memoranda of understanding with 12 states (and is negotiating
with eight more states) governing voluntary cleanups done under those
states' laws. EPA has stated that generally it will not anticipate
doing removal or remedial actions at the typically low-risk sites
covered by those MOUs. Under these policies, EPA enforcement is
preserved in the event of an imminent and substantial endangerment to
human health and the environment. My understanding is that states with
MOUs have been quite satisfied about the level of assurance regarding
anticipated EPA action. These MOUs have also served the valuable
function of keeping State and Federal officials better informed
regarding each other's site cleanup plans.
LEGISLATION
Legislation to reauthorize the Federal Superfund program has been
proposed in Congress for several years, but has not been enacted. In
the meantime, through administrative reforms, we have successfully
moved the program forward and gotten sites cleaned up. The
administrative reforms EPA and DOJ have implemented have addressed many
of the concerns about the program and have led to overall improvement
in the program. Given the present State of the program, comprehensive
reform legislation on Superfund is no longer needed, and in fact is
highly likely to return the program to litigation, to delay further
cleanup, and to undermine the progress we have achieved.
There remains a public perception that legislative change could
facilitate and expedite brownfields redevelopment. Brownfields are
parcels of land, most often located in urban areas, that contain
abandoned or under-used contaminated commercial or industrial
facilities, the expansion or redevelopment of which is complicated by
the presence of hazardous substances. Cleaning up these parcels and
returning them to productive use provides numerous benefits to the
community: it improves the health of surrounding communities, as well
as the appearance and economic well-being of these communities, because
such projects bring new vitality and jobs to the areas developed.
Brownfields development also protects undeveloped property and green
space from the pressures of development.
Because of its importance to the environmental and economic well-
being of cities, we have taken a number of steps to encourage
brownfields redevelopment. Targeted Federal legislation may encourage
such redevelopment even further. To that end, we urge Congress to
continue funding the Administration's successful brownfields program so
that more grants and loans can be made available to local communities
all across the country. We also support legislation that has all of the
following targeted and specific elements. These are:
Liability relief for qualified prospective purchasers of
contaminated property, innocent landowners, and contiguous property
owners.
Ensuring that State cleanup programs are well qualified--
the program must provide notice and adequate opportunity for public
involvement in cleanup decisions, must contain standards that protect
human health and the environment and ensure completion of the cleanups,
and must have adequate resources to implement and enforce its program.
Guaranteeing that Federal authority to respond to
circumstances that may present an imminent and substantial endangerment
to human health or the environment is preserved.
Thank you for the opportunity to speak to this committee.
______
RESPONSES OF LOIS J. SCHIFFER TO ADDITIONAL QUESTIONS FROM SENATOR
SMITH
Questions 1a and 1b. Several years ago, EPA proposed and then
withdrew a Voluntary Cleanup Guidance effort for the states. The issue
that caused the negotiation of this guidance to break down was how to
address finality for state decisions. Does the Agency plan any further
efforts to revive such a guidance? If so, how does the Agency intend to
address the issue of state finality?
Response. EPA reports that on November 26, 1997, it withdrew its
draft voluntary cleanup guidance and has been relying on its November
14, 1996 memorandum as the framework for negotiating Memoranda of
Agreement (MOA's) with States regarding their voluntary cleanup
programs. This memorandum, ``Interim Approaches for Regional Relations
With State Voluntary Cleanup Programs,'' identifies criteria that the
state program must meet for EPA to enter into the MOA. The purpose of
the MOA is to clarify the division of labor at sites, as between EPA
and the States, and to avoid unnecessary duplication of efforts. In the
MOA, EPA states that it generally does not anticipate taking removal or
remedial action at sites involved in an approved state cleanup program,
unless it determines that there may be an imminent and substantial
endangerment to public health, welfare, or the environment. EPA has
included similar language in the 14 MOAs it has negotiated to date with
states, which I understand are working well. We are unaware that EPA
has any plans to issue any new or revised guidance.
Questions 2a and 2b. As part of the omnibus appropriations bill
signed into law late last year, an effort was made by the National
Association of Home Builders (NAHB) and EPA to include a Superfund
liability exemption for developers of contaminated properties and
certified state brownfields programs. This bill was never introduced,
hastily drafted, full of errors, and circumvented the usual
congressional process. Explain the benefit to society of a piece of
legislation that serves the purposes of a narrow industry group and was
negotiated outside of the committee framework. Do you still support the
language that you negotiated with the NAHB?
Response. I was not involved in the negotiations with NAHB. The
Administration is interested in achieving responsible brownfields
legislation to help communities clean up and revitalize their
neighborhoods. We support communities, not special interest groups.
Promoting the cleanup of contaminated brownfields sites will enable
these properties to be redeveloped into useful, productive parcels that
improve the appearance of the sites, the health of surrounding
communities, and the economic well-being of the community. The
Administration remains committed to achieving responsible brownfields
legislation. It supports targeted reform legislation to advance
brownfields redevelopment such as the approaches taken in S. 18
(introduced by Senator Lautenberg and others during the 105th
Congress), and in H.R. 1750 (introduced by Congressmen Dingell, Towns
and others during the 106th Congress), and the draft legislation that
has been called the NAHB bill (and that is limited to non-NPL caliber
sites.)
Question 2c. Environmentalists have criticized the Administration
for brokering deals without extensive public comment and discussion. In
the instance of the NAHB/EPA brownfields deal, minority and low-income
areas would have been particularly affected. Does the Administration
support making a deal at the costs of cutting out public participation?
Response. Public participation is important and should be provided
for both in the development of responsible brownfields legislation and
in the implementation of any state brownfields program.
Question 3. Under EPA Guidance on Deferral of NPL Listing
Determinations While States Oversee Response Actions and the 12
Memorandum of Understandings signed with States (eight more are being
negotiated) governing voluntary cleanups done under those states' laws,
does EPA take into consideration the actions performed by state
voluntary cleanup programs prior to using enforcement authority in the
event of an imminent and substantial endangerment?
Response. Based on our experience, the situations where EPA may be
required to take action at a site cleaned up under a well qualified
state cleanup program under an MOA will be rare. Nonetheless,
preserving the ability of the Federal Government to respond in those
cases is essential to enable us to protect public health and the
environment. As a practical matter, we would take into consideration
the actions performed under state voluntary cleanup programs prior to
using enforcement authority in the event of the threat of an imminent
and substantial endangerment. Legislative changes are not needed to do
this, and we have concerns that any new written standard could lead to
increased litigation over the meaning of the standard.
______
RESPONSES OF LOIS J. SCHIFFER TO ADDITIONAL QUESTIONS FROM
SENATOR LAUTENBERG
Question 1. Ms. Schiffer, I understand that the Federal Government
has not stepped in at cases where State cleanup programs have handled
cleanup of Brownfield sites. Is this correct? If they don't step in
anyway, why is it important to maintain the ability for the Federal
Government to do so?
Response. Your understanding is for the most part correct.
Generally the Federal Government has not stepped in at brownfields
sites being addressed under state cleanup programs. We support
brownfields cleanups under qualified state programs, since the Federal
Government alone does not have the resources to address every
contaminated site across the country. Experience shows that the Federal
Government is particularly well suited to address sites that pose the
most egregious health threats or the likelihood of protracted
litigation with numerous parties. However, we encourage states to
address other sites, so that together we can get as many sites cleaned
up as possible. And if a site is properly cleaned up under a state
program to a standard that meets uses the surrounding community
supports, we are not going to intervene and require a party to do more
than the state required.
Although the number of times we have ``stepped in'' has been rare,
for the following reasons it is important for the Federal Government to
preserve its ability to do so to protect the public and the environment
from situations that present an imminent and substantial endangerment.
Maintaining Federal liability and enforcement is important to
encouraging state cleanups, including brownfields cleanups done under
state programs. It is widely recognized that the Comprehensive
Environmental Response, Compensation, and Liability Act (CERCLA, or
Superfund) creates a major incentive for cleanups. CERCLA imposes clear
legal responsibility for those that create or contribute to a
contamination problem to clean it up. And the threat of CERCLA
responsibility can encourage private parties to clean up their waste
voluntarily, even under a voluntary state program. Indeed, in a
December 1998 GAO report, state officials stated that a strong Federal
program imposing rigorous cleanup requirements and liability standards
was critical to the success of the state programs. (HAZARDOUS WASTE
SITES: State Cleanup Practices 5 (GAO/ACED 99-39, Dec. 1998).)
In addition, the imminent and substantial endangerment standard,
which is the same in Superfund and many other environmental laws, has
been interpreted by the courts. Changes to it may well lead to
litigation over the meaning of any new standard, bringing lawyers back
into a system that has been relatively successful at getting them out,
and potentially delaying cleanups while litigation occurs. Indeed, we
are already seeing that changes made to Superfund by the recycling
amendments passed in November 1999 are leading to increased litigation
at a number of sites.
Although experience demonstrates that the United States should
rarely need to exercise its authority to respond at state cleanup
sites, maintaining adequate Federal authority is critical to protect
health and environment at sites where it becomes necessary. One example
where this became necessary is the Grand Street Site in Hoboken, New
Jersey.
From about 1910 to 1988, several companies engaged in manufacturing
at this Hoboken warehouse, including the manufacture of mercury vapor
lamps and other lighting materials. A subsequent owner filed an
application for cessation of operation under New Jersey's Environmental
Cleanup and Responsibility Act (ECRA) and, based on the information in
the application, New Jersey approved a ``negative declaration,'' which
indicated that the property was sufficiently clean for redevelopment.
The property was then sold and redeveloped into residential lofts.
During
renovations the new owners found large quantities of liquid mercury, a
highly toxic material, within the walls of the building. The Agency for
Toxic Substances and Disease Registry (ATSDR) was asked to evaluate the
health impacts of the property and determined, after urine testing,
that elevated mercury in residents, some of them children, constituted
an imminent health hazard. Thereafter, the Hoboken Health Department
declared the premises unfit for habitation and evacuated the residents.
New Jersey rescinded its original approval under ECRA and in January
1996 asked EPA to step in. The site was listed on the National Priority
List (NPL) in September, 1997.
EPA conducted an initial removal action to temporarily relocate
residents and to further investigate the extent of mercury
contamination in the buildings and surrounding soils. In 1997, EPA
issued a remedy decision for the site that calls for permanent
relocation of the residents, demolition of the buildings, excavation
and offsite disposal of contaminated soils, and long-term groundwater
monitoring. All property interests in the site were acquired by the
Federal Government to facilitate permanent relocation of the residents.
Pursuant to a unilateral administrative order, PRPs will undertake
demolition and site remediation efforts. By its efforts EPA has
protected building residents and the surrounding community from the
health hazards associated with mercury contamination.
This example demonstrates that even in states with mature programs,
something can go wrong or slip through the cracks. EPA's authority to
respond in these instances should not be dependent upon a state's
request for intervention. The reason for the Federal safety net is to
ensure that public health and the environment are protected.
Question 2. I understand that the EPA and DOJ have been working
with redevelopers on ``Prospective Purchaser Agreements'' at
Brownfieldsites. Can you tell us how many of these agreements the EPA
and DOJ have reached, and how they help facilitate cleanup and reuse of
these sites? Would codification of a bona fide prospective purchaser
(``BFPP'') exemption further promote cleanup and reuse? To what extent
would a BFPP exemption, if passed, address the issue of ``finality''?
Response. To date we have completed 152 Prospective Purchaser
Agreements (PPAs), and there are more in the works. By entering into
these agreements, we provide prospective purchasers at sites of Federal
interest with explicit relief from liability for pre-existing
conditions on the site for which they had no responsibility. Buyers
tell us that PPAs encourage them to purchase contaminated brownfields
sites and redevelop them into useful, productive parcels that improve
the appearance of the areas, the health of surrounding communities, and
the economic well-being of the community.
An excellent example is the PPA we entered into for the Mechanic
Street Realty Corp. (MSRC) Superfund Site in New Jersey. This site is a
vacant four-acre former industrial complex located in a mixed
residential, commercial and industrial area in Perth Amboy. Nearly 300
drums and various sized containers and several tanks were found at the
site. Many of them contained hazardous substances and showed evidence
of past spills and releases. EPA also found signs of trespass at the
site. The parties responsible parties for the pollution are now
defunct.
The City of Perth Amboy decided to acquire the property for
redevelopment. Once DOJ approved their PPA, under the terms of the
Agreement, the City has agreed to complete the removal activities at
the Site and demolish the buildings at an estimated cost of $400,000.
Thereafter, the City plans to transfer the property to the County for
$1 as the proposed location for the new vocational school. If those
plans don't work, the City will seek to sell to a private developer at
market value and provide the United States with 50 percent of the sale
or lease proceeds. As a result of this PPA, the site will be cleaned up
and returned to productive community use.
The Administration has supported a bona fide prospective purchaser
(``BFPP'') exemption to further promote cleanup and reuse. Some have
argued that prospective purchasers are afraid to purchase brownfield
properties due to a fear of assuming liability for pre-existing
conditions for which the purchaser had no responsibility. While I do
not agree that there is a valid basis for such fear, an exemption for
qualifying parties would eliminate this excuse for those that can
undertake brownfields redevelopment.
Question 3. Ms. Schiffer, I have heard some argue in favor of
limiting Federal authority and liability at Brownfields sites. Yet, my
bill and others have included provisions which would protect innocent
parties--prospective purchasers of contaminated sites, innocent
purchasers who bought property but had no reason to know it was
contaminated, and owners of property contiguous to the contamination.
This would seem to cover the innocent parties pretty well--can you
explain what other parties would have their liability eliminated if the
Federal law did not apply?
Response. The three categories you have identified--prospective
purchasers of contaminated sites, innocent purchasers who bought
property but had no reason to know it was contaminated, and owners of
property contiguous to the contamination--cover the range of parties at
a Superfund site that the Administration has supported exempting from
Superfund liability through legislation. Of course, any such liability
relief must also ensure that the government can recoup the value it
gives to property through its cleanup action and should preserve
incentives for voluntary cleanup.
Parties that must remain liable under Superfund are those that are
responsible for the contamination at a given site--this is the
``polluter pays'' principle. These include the past and present owners
and operators of the site, parties who arranged for the disposal of
hazardous substances, and transporters who delivered such substances to
a site.
Question 4. You testified that there were certain criteria that
would be essential for Brownfields legislation. Can you please
elaborate.
Response. Responsible Federal brownfields legislation should
contain at least the following elements:
(1) Legislation must make clear that any deference to state program
cleanups does not apply to NPL listed, proposed to be listed, or NPL-
caliber sites, all of which remain of Federal interest. State
brownfields programs are intended to address only sites at which there
is not a Federal interest.
(2) Legislation should contain appropriate liability relief for
qualified prospective purchasers of contaminated property, innocent
landowners, and contiguous property owners.
(3) Legislation must require that any state program to which
deference is given must be well-qualified. A well-qualified state
program must meet at least the following requirements: it must provide
notice and adequate opportunity for public involvement in the process,
including determinations of future land use as a basis for cleanup
decisions, decisions of cleanup remedies, and determinations of cleanup
completion; standards that protect human health and the environment;
and adequate resources to implement and enforce the state program and
ensure completion of the cleanups.
(4) Legislation must preserve the Federal Government's authority to
respond to circumstances that may present an imminent and substantial
endangerment to human health or the environment, and must require that
PRPs pay the costs of such remedies.
(5) Studies consistently show that the biggest obstacle to
brownfields cleanups is lack of funding. Legislation must provide
adequate funding for grants and loans to local communities across the
country to address brownfields.
Question 5. I have heard that parties complain that fear of Federal
liability deters them from purchasing, cleaning up, and redeveloping
brownfields, though I must note that in my home state of New Jersey, I
have seen tremendous brownfields projects take place, even with the
current potential for Federal liability. In any event, do you think
liability relief is the solution, and if so, under what circumstances?
Is this the only solution?
Response. I have repeatedly said that the so-called ``fear'' of
Federal liability that some believe stymies redevelopment is misplaced,
since there have been very few situations in which the Federal
Government has stepped in at a brownfields site property cleaned up
under a state program--and those rare examples that do exist are
precisely the situations where a Federal role is necessary.
Nevertheless, the Administration continues to support changes that
would take away any excuses and would facilitate and expedite
brownfields redevelopment. Cleaning up brownfields parcels and
returning them to productive use improves the public health and the
economic well-being of surrounding communities. Brownfields development
also protects undeveloped property and green space from the pressures
of development. Because of its importance to the environmental and
economic well-being of cities, we have taken a number of steps to
encourage brownfields redevelopment. Targeted Federal legislation may
encourage such redevelopment even further.
Legislation is not the only way to encourage redevelopment,
however. As we heard at the hearing on March 21, many local communities
believe the primary impediment to redevelopment is the lack of adequate
resources for site assessments and remediation. Indeed, in the United
States Conference of Mayors' recent National Report on Brownfields
Redevelopment (February 2000), the mayors stated that ``For the third
year, the `lack of funds to cleanup these sites' was the most
frequently identified impediment, cited by 90 percent of the
respondents.''\1\ We therefore strongly encourage Congress to provide
adequate funding to support brownfields redevelopment in communities
around the country. The Administration has also been successful in
encouraging brownfields redevelopment through administrative and
enforcement efforts, such as EPA's issuance of comfort letters and the
Department of Justice's approval of PPAs.
---------------------------------------------------------------------------
\1\ See Recycling America's Land: A National Report on Brownfield
Redevelopment--Volume III (February 2000), Executive Summary, p. 9.
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Finally, I understand that over the last several years, insurance
for brownfields development has become much more readily available.
Such policies enable parties to a brownfields transaction to ensure
against unknown remediation risks associated with the site, thereby
providing sufficient security and ``finality'' to the parties involved
to proceed comfortably with redevelopment. As one recent publication
stated, ``[T]hese policies can and often do bring the transactional
peace of mind needed to close a deal.'' Environmental Insurance:
Benefits, Types of Policies Available and Purchasing Issues. I would
also draw your attention to Current Insurance Products for Insuring
Against Environmental Risks, ALI-ABA Course of Study, Anne M. Waeger,
October 14, 1999 (``In recent years, the market for coverage of
environmental risks has drastically increased, particularly as a result
of Brownfields initiatives being enacted in many states.'')
Question 6. Ms. Schiffer, we have already passed several pieces of
Superfund amendments into law, such as the recycling liability
provisions passed last year as part of the Omnibus budget bill. Is it
too early to learn any lessons from the recent passage of the recycling
amendments?
Response. The Superfund Recycling Equity Act was passed on November
19 and signed into law by the President on November 29, 1999. We hope
that these recycling amendments will have the desired effect of
encouraging the legitimate recycling of materials in the United States.
One thing the new amendments are reminding us, however, is that any
changes to the provisions of Superfund, even when supported by a broad
consensus, leads to more litigation and reintroduces lawyers into the
process. We are already involved in several cases in which the courts
are being asked to determine the scope of the recycling amendments and
their application to the facts of individual cases. In some cases,
these questions have upset ongoing settlement discussions, and could
potentially slow the pace at which cleanups proceed. We should keep
this in mind as we consider any further changes to the statute.
______
RESPONSES OF LOIS J. SCHIFFER TO ADDITIONAL QUESTIONS FROM SENATOR
BOXER
Questions 1 and 2. The Port of Redwood City, located on the
southern end of San Francisco Bay, is engaged in cleaning up a
hazardous waste site at which numerous Federal and private entities
contributed hazardous wastes. Nearly all of the private entities have
paid their share of the clean-up costs. Although the record is clear
that 20 Federal agencies contributed waste to the site, the Department
of Justice has apparently refused to settle the Federal Government's
cleanup liability with the Port.
I first became involved in this matter last year. At that time, I
asked that the Department expedite its treatment of this issue. I now
understand from the Port, however, that the Department continues to
delay paying the Federal Government's share of clean-up costs.
Please provide the following information concerning this claim:
Status of the claim. Does the Department have a legal justification for
avoiding liability in this case; if so, what is that justification or
theory?
Response. While the Department of Justice's policy on pending
matters and the confidentiality of the settlement negotiations prevents
me from commenting in detail on the Port of Redwood City cleanup case
or the settlement negotiations, I can provide the following public
information on the status of this case.
This case concerns cost allocation for the cleanup of hazardous
substances at the Liquid Bulk Terminal Site, also known as the Former
Pilot Petroleum/Gibson Environmental Facility, in Redwood City,
California. The Port of Redwood City is the current and past owner of
the Site. From 1989 to 1995, the Port leased the Site to Gibson
Environmental, Inc. In 1995, Gibson abandoned its leasehold and
commenced bankruptcy proceedings. Later in 1995, the California
Department of Toxic Substances Control notified the Port that, as
property owner of the Site, the Port was required to assume
responsibility for the Gibson Facility under state law, and to prepare
and submit a closure plan.
Subsequent investigation revealed toxic pollutants and
contamination at the Site, apparently resulting from the operations at
the Gibson Facility. The Port has commenced cleanup of the Site and
filed a lawsuit in Federal court seeking reimbursement of costs from a
number of parties including the United States. With respect to the
litigation, on March 7, 2000, the court issued a written order
dismissing 7 of the 13 counts against the United States, including the
count seeking joint and several liability under CERCLA. The Port
stipulated to dismissing the CERCLA Sec. 107 claim along with some of
the state tort claims. Litigation and discovery on the remaining counts
is ongoing.
Although the Department of Justice on behalf of the Federal
defendants has been in settlement negotiations with the Port since 1997
(prior to the filing of the complaint), we have not as yet been able to
reach a fair settlement. Since the Department's last correspondence
with you on this matter in 1998, the Federal defendants have exchanged
information with the Port, both formally through discovery and
informally, to assess the potential liability of the United States.
Using this information, we have engaged the Port in negotiations in an
attempt to settle this case. We have adopted a position that is fair,
comparable to the position taken by other similarly situated parties
who have already settled with the Port, and consistent with the
position we have taken in other similar cases. Although our
negotiations have not been successful, we remain open to further
settlement discussions with the Port as we continue to litigate this
matter.
Questions 3 and 4. How much time (hours) has been spent by
Department attorneys on this case? Please estimate how much time and
money the Department will spend if this case goes to court?
Response. Our records indicate that to date 726 attorney hours have
been spent on the Port of Redwood City case since its inception in
1997. A significant number of hours were spent responding to over 2,000
discovery requests by the Port last year. Although we continue to
believe settlement appropriate in this case, all parties will incur
additional expenses if this litigation continues.
Question 5. Is it standard Department policy to defend rather than
settle claims against the Federal Government for Superfund liability?
Has the Department estimated the legal costs associated with any such
policy?
Response. The Department continues to believe that the most
appropriate resolution of valid claims against the Federal Government
is fair and reasonable settlements. At the same time, a ``give-away''
settlement does not protect the American taxpayers. We remain open to
further settlement discussions with the Port of Redwood City as we
continue to litigate this matter.
__________
STATEMENT OF J. CHRISTIAN BOLLWAGE, MAYOR, ELIZABETH, NJ, ON BEHALF OF
THE U.S. CONFERENCE OF MAYORS
I am J. Christian Bollwage, Mayor of Elizabeth, New Jersey. I am
pleased to appear today on behalf The United States Conference of
Mayors, a national organization that represents more than 1,050 U.S.
cities with a population of 30,000 or more.
Within the Conference of Mayors, I now serve as a Member of the
organization's Advisory Board, and I am a co-chair of the Brownfields
Task Force.
The Conference has been involved extensively in the legislative
debate on brownfields redevelopment and related efforts to enact much
needed reforms to the ``Superfund'' law.
Mr. Chairman, the Conference's statement today addresses a number
of issues before this Subcommittee today. Specifically, I would like to
focus my remarks on what is needed to support city efforts to redevelop
brownfields, recognizing the interplay between the Superfund law and
these less contaminated, non-NPL sites.
SUPERFUND REFORM
For some time, the Conference of Mayors has been engaged in the
debate on the nation's Superfund law. And, when mayors talk about the
need for reform of this law, we have sometimes failed to register our
strong support for the statute and how it has stopped the reckless and
thoughtless disposal of harmful chemicals to the environment. When
enacted, Superfund also meant that the time had come to take
responsibility for past actions by forcing responsible parties to clean
up contaminated properties.
When cities try to offer a consistent view of the workings of
Superfund as it pertains to the cleanup of Superfund sites, it poses
challenges for our members. Consider the numbers. In this hearing, we
are talking about a Superfund that is involved directly with cleaning
up sites at a rate now of about 85 per year. According to the Census,
we have more than 20,000 municipalities throughout the country, with
sites located in larger cities, in smaller ones, in incorporated areas
of counties and in unincorporated areas. Sites are located in highly
urbanized areas, developing and ex-urban areas, in ex-urban small towns
and in remote rural locations. The facts of each situation differ, the
environmental threats, cleanup considerations, and so on.
Experience with these sites and others has generated a substantial
record, prompting the U.S. Environmental Protection Agency to pursue a
number of administrative reforms to the program. And, the Conference
has been supportive of these efforts and related policies, urging that
these reforms be codified to give the agency specific support and
legislative backing for these program changes.
Our support for this Committee's legislative efforts and those in
the House reflect our support for efforts to update the statute and
provide more certainty to the Agency in administering the statute,
reflecting the nearly 20 years of experience in the field. And, mayors
believe that brownfields, specifically, is one significant area which
needs legislative attention, and I speak to some of these issues later
in my statement.
Mr. Chairman, I would note that the life cycle of a Superfund site,
from listing to construction completion, exceeds the tenure of most
mayors. As a result, we have focused our efforts on particular areas
where numbers of our members are affected and there is some common
experience. For example, we know there are a number of Superfund sites
where a city or the county owns the site, most commonly a municipal
landfill, or where municipal waste has been co-disposed at the site.
Mr. Chairman and Senator Lautenberg, I know you are very familiar these
circumstances and the challenges these sites present to affected
communities.
Shortly after Superfund fund was enacted, a number of cities felt
the immediate effects of the Act's new standards, given their ownership
of landfills or in actions related to the disposal of municipal and
other wastes. When Superfund was first moving through Congress, there
were many here in Congress and in Executive agencies who believed that
the new liability provisions would, in fact, enjoin cities and others
at the local and State level to contribute their so-called ``deep
pockets'' to augment Superfund resources. In this way, Federal
resources would be reserved for the most contaminated properties where
responsible parties were long gone and/or otherwise unreachable.
This Committee's record is replete with discussions and testimony
on the municipal solid waste issues. And, we are familiar with, and
appreciative of, this Committee's efforts to deal with these sites in
your reform efforts.
Last year when then Macon Mayor Jim Marshall testified before you,
he made a very important point about the effects of the law and its
assignment of cleanup costs at these sites to local taxpayers. He said
that the law effectively asks a new group of local taxpayers to pay the
costs for earlier actions by an old set of taxpayers. Absorbing these
costs, he argues and mayors agree, is very problematic and unfair to
today's taxpayers.
And, of course, there is the broader reality of these sites, which
are owned and operated by localities in performing a traditional local
government functions, the disposal of solid waste. Superfund
effectively makes these communities responsibility for past practices
and uses of materials and substances, all of which are largely outside
of the control of the level of government now responsible for the clean
up of these sites. The flow of commerce, and particularly the chemical
constituents of commerce, have been and continue to be outside the
purview of local authorities, both constitutionally and often
practically.
Here we have pressed for municipal liability caps to help
communities contribute to these costs, urging that Superfund dollars be
used to cleanup these sites. In the case of MSW sites, Superfund's core
principle--``you own it, you are responsible''--is unfair and should be
reformed. Cities that have taken title to brownfield properties, for a
variety of reasons, also feel this standard is unfair and should be
reformed.
BROWNFIELDS
Subsequent to Superfund's passage, local officials and others never
fully understood how these liability strictures would later fuel the
phenomenon we now called brownfields. So that while, on one hand,
Superfund was sending the strongest signal possible that contamination
of land, buildings and the like will not be tolerated, we were also
signaling to those parties trying to recycle our nation's land to
proceed at their own risk.
Our survey work at the Conference shows that brownfields throughout
the Nation is a problem of significant proportion. And, we believe that
our collective efforts among Federal, state, regional and local
governments and their agencies are far too modest given the scale of
this national problem. Let me talk about the problem, as the Conference
recently set forth last month in its Third National Report on
Brownfields Redevelopment. I have also provided you with my written
testimony copies of this Report, along with a four-page summary on its
release.
First, let me summarize some of the key findings
232 cities responded to our survey, with 210 cities
estimating that they had more than 21,000 brownfield sites; these sites
consumed more than 81,000 acres of land.
Brownfields are also not just a ``big'' city problem with
more than six out of ten respondents from cities with less than 100,000
people.
We found the obstacles to redevelopment are the same for the third
consecutive year
The No. 1 obstacle was the need for cleanup funds to bring
these properties back into productive use, with 90 percent of the
respondents indicating that cleanup funds were needed.
The second more common impediment issue was dealing with
the issue of liability, followed by the need for more environmental
assessments to determine the type and extent of the contamination.
And, we also quantified the benefits of redeveloping these sites,
underscoring why mayors have been so vocal in advocating support for
new Federal policies to assist communities
Let's talk money first. Three-fourths of the survey
respondents (about 178) estimated that if their brownfields were
redeveloped, they would realize between $902 million to $2.4 billion in
annual tax revenues.
The second most frequently identified benefit was creating
more jobs, with 190 cities estimated that over 587,000 jobs could be
created if their brownfield sites were redeveloped.
We have also been working to make the case that renewed attention
to brownfields is one of the most viable options in the short term in
addressing issues related to sprawl, including loss of farmland and
open space. It is obvious that the redevelopment of these sites can
make a real contribution to this growing national problem, by recycling
existing urban land before developing pristine land resources as our
first choice.
Related to this issue, we asked the survey respondents to quantify
how many people their communities could absorb without adding
appreciably to their existing infrastructure.
118 estimated they could support an additional 5.8 million
people, a capacity that is nearly equivalent to the population of Los
Angeles and Chicago.
To put this number in context, we took some of the analysis from
the American Farmland Trust----
AFT estimates that 15 percent (about 15 million acres) of
all the land that was developed in the U.S. was developed between 1992
and 1997; during the same period, the nation's population grew by 12.6
million.
These 5.8 million people, which our survey says could be
absorbed by these 118 cities, is nearly one-half (46 percent) of the
nation's population growth during the same 5-year period (1992 to
1997).
We need to ask ourselves what portion of the 15 million acres that
were developed could have been saved if we had national policies in
place that would recycle brownfields back into productive use, and
other policies to help encourage more people to choose to live in
existing communities.
POLICIES ON BROWNFIELDS SPECIFICALLY
Mr. Chairman, as a former mayor, I know that you are very familiar
with the challenges of brownfields in communities all across the
country. We encourage you to take steps in this Committee to work with
others to craft bipartisan policies to advance our efforts, by acting
on brownfield and selected Superfund reforms.
We also want to acknowledge the many efforts by the Administration,
particularly U.S. EPA Administrator Carol Browner, who has supported
many policy reforms and initiatives on brownfields, given constraints
of existing law.
EPA's programs and policies have certainly helped, and again let us
underscore that we are very appreciative of these efforts. But as a
nation, the mayors believe that we are not making progress at a rate
that is quick enough or substantial enough given other considerations.
Let me talk specifically about some of the issues related to
brownfields redevelopment that would be most helpful.
First, cities need additional resources to accelerate the pace of
assessment and clean-up of these sites. Our survey clearly
substantiates this need.
As the Committee looks for ways to assist communities, we would ask
that you consider some of the following key recommendations.
ON FUNDING
Provide communities with the option to apply for both
grants and loan capitalization funds and make these resources directly
available to communities to assist their efforts to accelerate site
remediation.
Provide an authorization of ``such sums as necessary'' to
allow future Congress' the flexibility to increase commitments to local
cleanup efforts. Superfund, as you know, is not a statute that is
routinely reauthorized.
Provide grant funds to help communities undertake
assessment of these sites, investments which will accelerate
information on the extent of contamination at these sites and provide
the basis for subsequent clean up efforts.
Provide an option for those communities that have
previously received brownfields loan capitalization funds, which were
funded from Superfund Trust Fund revenues, to use these funds under any
new rules prescribed for grant and loans fund provided under new
legislation.
Finally, the mayors believe that these resources to support local
brownfield assessment and cleanups should be provided from both general
revenues and Trust Fund revenues. We would also note, however, that the
excise taxes, which the Conference supports renewing, do apply to
chemicals that are often present at many of the sites we call
brownfields.
LIABILITY REFORMS
Provide prospective purchaser liability protections,
extending these protections to private and public parties.
Provide targeted liability protection to municipalities
and other innocent private parties, who have acquired these properties
under certain circumstances and conditions. A number of cities, for
example, have acquired brownfields in a number of ways, usually in
performing local government functions and in complying with State and
local laws.
FUTURE LAND USES/INSTITUTIONAL CONTROLS
Provide policy support that allows State and local efforts
to clean up sites, using standards that reflect future uses of the
site.
Provide support for local and State efforts to put
institutional controls in place to ensure future use of these sites
conform to the cleanup standards used at the site.
STATE VOLUNTARY CLEANUP PROGRAMS
Provide additional funding support to strengthen State
voluntary cleanup programs, using these funds to ensure that these
State programs continue to build capacity to address brownfields sites,
not just emphasizing the more contaminated NPL-caliber properties.
Provide for a pilot project whereby localities that so
chose, can be delegated authority under Federal law to undertake their
own voluntary clean up programs, subject to subsequent State delegation
of this authority.
Provide mechanisms that will assure that parties who
participate in State cleanup programs for the clean up of contaminated
properties can fully anticipate the level of State authority to make
final remediation and other decisions at the site.
Mr. Chairman, these are some elements that would help communities
and their State partners to accelerate the cleanup and redevelopment of
these sites.
I would like to make a few points regarding some of the issues that
I have just set forth. First, some in Congress continue to express
concerns about providing additional resources to communities for
brownfield assessment and cleanup. We know that many communities simply
don't have the resources to tackle the magnitude of the problem they
face.
But, there is also another point that we often make about these
properties. When these sites were active and producing economic
activity (i.e. jobs, tax receipts, etc.), all levels of government
shared in this output. In fact, at the local level, communities on
average realized between 10 and 20 cents on every public dollar that
was generated. More than 80 cents of every dollar was shipped to State
capitols and the U.S. Treasury in the form of income taxes and so on.
It is hard for local areas, which realized the smallest share of the
public dollars generated by these private activities, particularly
those communities with relatively weak tax bases, to absorb all of the
public costs associated with restoring these properties to productive
reuse.
Another key point is the level of effort we have committed,
collectively, to this effort is far less than what we should be doing
as a society. Even with the very committed support and leadership at
U.S. EPA, it remains a very daunting task to accomplish reforms
administratively.
In preparing for this hearing, we reviewed the record of EPA's
efforts to issue comfort letters and Prospective Purchaser Agreements.
Through Fiscal Year 1998, the agency had entered in to 85 Prospective
Purchaser Agreements and had issued over 250 comfort/status letters.
This represents a very small fraction of sites in America. Specific
legislation deals with some of the issues I have discussed would
produce the same outcome as thousands of these letters and PPAs.
I would also urge the Committee to consider language in any
legislative reforms which takes a broader view of the brownfields
issue, allowing communities some flexibility to address vacant
buildings along with land. A new study, which was recently reported in
USA Today, underscores the need for additional attention to the issue
of abandoned buildings.
ELIZABETH'S SUCCESS WITH BROWNFIELDS
In my own City, I have seen what is possible by reusing these
sites. In October, we officially celebrated the opening of the Jersey
Gardens Mall, located on the site of a 170-acre municipal landfill that
had been closed since 1972.
At this site, we have opened the largest outlet mall on the East
Coast, with more than 200 stores, providing more than 3,000 jobs. This
site alone will generate about $6.5 million annually in revenue for the
City. With additional stores opening this Fall, we expect to see
employment at the site exceed 4,000 jobs.
As a result of this project, we see additional private investment
flowing to the immediate area, including a major indoor sports complex,
hotels, office buildings and ferry service to New York City. And, we
have had other successes in our City, although not on the scale of what
the Jersey Gardens Mall has yielded.
We are fortunate that the city of Elizabeth is ideally situated to
leverage the substantial economic and population base of Northern New
Jersey, extending in to Manhattan. And, I am not suggesting that this
is most characteristic of what cities can accomplish in redeveloping
brownfields. However, it does underscore the need for Federal policy
support to help communities generate their own successes, as you now
see on a relatively modest scale all across the country.
CLOSING COMMENTS
The nation's mayors believe that the time has come for bipartisan
action on brownfields and, where possible, selected Superfund reforms.
In moving bipartisan legislation forward, you can count on the support
of the nation's mayors in this regard.
On behalf of The U.S. Conference of Mayors, we appreciate this
opportunity to share the view of the nation's mayors on these important
issues.
______
RESPONSES OF J. CHRISTIAN BOLLWAGE TO ADDITIONAL QUESTIONS FROM SENATOR
SMITH
Question 1a. Your testimony states that 15 million acres could have
potentially been saved from development if we had national policies in
place that would recycle brownfields back into productive use. From the
local government perspective, based on your experience, why are
companies choosing to locate their new factories on ``greenfields,''
perpetuating the current problem of sprawl and loss of downtown areas,
instead of buying ``brownfields?''
Response. There are many factors why companies choose to relocate
their new factories on greenfields instead of brownfields and in
understanding these factors you must examine the atmosphere that
business operates. The first factor in any business decision is the
bottom line; it is usually cheaper to relocate and/or build a new
factory on greenfields verses brownfields. And, we know that public
investment and subsidies are often skewed toward new facilities over
the rehabilitation and upgrading of existing public facilities. Second,
business is conducted in the here and now; companies may not have the
luxury of time to wait for the cleanup and for the appropriate
government process of review--bureaucracies take time. Third, farmland
has become increasingly available. Fourth, it can be more complicated
to do business in existing cities and communities, which are relatively
more complicated environments for new development. Finally, if time,
money and availability isn't a factor the potential of a long-term
liability may drive the business to greenfields.
Therefore, financial incentives must be put into place to attract
business to brownfields, long-term liability issues must be addressed
adequately to lower the risk, and the advantages of relocating to a
brownfield must be made known (i.e. labor surplus area, proximity to
transportation and market access).
Question 1b. Is it because they are afraid of getting caught up in
the Superfund liability web?
Response. Yes, Superfund liability is definitely a factor but it is
not the whole picture. There are many factors that a businessperson
looks at before making a decision of this magnitude; unfortunately,
liability concerns at the outset gives a developer real cause to look
elsewhere.
Question 2a. Based on the United States Conference of Mayors (USCM)
February 2000 report, Third National Report on Brownfields
Redevelopment, the second most common obstacle cited by cities
responding to your survey were issues of liability. If states were to
have finality in decisions regarding cleanups under voluntary programs,
would the issue of liability be addressed?
Response. In most of our work with mayors, liability concerns turn
on two issues. First, for innocent parties, there needs to be specific
liability relief provided in the statute to make sure these parties
know where they stand in acquiring sites for redevelopment. More
broadly, all parties, particularly those who have caused contamination
at sites, need to know that if they conduct a cleanup under a State
voluntary program that they have satisfied their liability at the site.
Otherwise, why would some parties who caused any contamination come
forward and seek to clean up these properties? The New Jersey
Brownfield Act of 1998 is an excellent model for the covenant not to
sue. The language of the legislation should be flexible enough to allow
a site by site determination regarding the type of contamination and
therefore determining the condition of no further action.
Question 2b. Thirty-four percent of the survey respondents said
that the question of how active their State was in working with them on
issues of brownfields was inapplicable. Does this mean that the states
where those survey respondents are located have no voluntary cleanup
programs?
Response. Although the survey does not provide respondents with the
opportunity to describe why they marked ``inapplicable'' on the
questionnaire, the Conference of Mayors staff has advised me that,
based on discussions with many of these cities, there are two likely
explanations. First, some cities indicated that the State did not have
a program specifically in place for addressing brownfields. Second,
some of the cities did not have any direct experience in working with
the state's voluntary cleanup program and could not make an assessment
of the program.
Question 3a. In your 1997 testimony to the Senate Committee on
Environment and Public Works, you set forth the position of the
Conference of Mayors on the issue of finality. Namely, ``that many
States have well developed voluntary cleanup programs that lead to No
Further Remediation letters. The USCM believes that if a site has
successfully gone through a qualified State program, then there should
be no additional Federal liability attached to that site for
contaminants of concern. There may be a reopener clause, but it should
be limited to cases where (1) there is an imminent threat to human
health or environment.'' Does the Conference of Mayors continue to
support this provision?
Response. Yes.
Question 3b. What does the Conference of Mayors consider to be a
``qualified'' State program?
Response. As a threshold issue, the Conference believes that the
State rules and regulations regarding procedures on the performance of
environmental investigation, which meet or exceed Federal regulations
on environmental investigation should be deemed a ``qualified'' State
program. The Conference has not adopted a position calling for a
Federal definition or Federal standards for ``qualified'' State
programs. In fact, mayors have resisted such an approach in that it
might result in a new and lengthy Federal process of EPA approval of
State voluntary programs, slowing forward progress in getting
brownfield sites cleaned up and redeveloped.
Question 3c. How and by whom would the determination be made that a
State response was ``not adequate'' such that the reopener clause would
apply?
Response. The U.S. EPA should reserve the right to go back to
review a case if there is a significant change in magnitude. Magnitude
meaning a change in environmental health or safety standards that would
or could directly effect health and safety.
Question 4. What would be the result of providing State finality in
decisions on cleanup of brownfield properties?
Response. It would be an added incentive for developers to build or
companies to relocate on brownfields.
______
RESPONSES OF J. CHRISTIAN BOLLWAGE TO ADDITIONAL QUESTIONS FROM SENATOR
LAUTENBERG
Question 1. Mayor Bollwage, you have been a real leader in the
issue of Brownfields and reuse of properties, on behalf of The U.S.
Conference of Mayors. I understand that in addition to the successful
commercial mall in your city, you have also used former brownfields
sites for non-commercial uses, including a little league field and a
soccer field.
Are there any unique problems associated with these kinds of
reuses?
Response. Elizabeth has been very fortunate in the redevelopment of
brownfields for recreational and open space uses. The sites that were
redeveloped for these purposes were at the time unwanted and/or
abandoned properties. The challenge for the city of Elizabeth, and for
many others urban areas, is the limited land resources that are
available for redevelopment as parks and open spaces. There are also
additional costs, beyond those for simply redevelopment of the site as
park/open space, for the continuing maintenance and operations at the
site.
Therefore, the most prominent problem for cities is available
funding to cover the costs of preliminary assessments, site
investigation, remediation and continued maintenance. Brownfields, in
certain instances, provide opportunities for cities to increase park
and open spaces, if funding is available.
Question 2. Do you have specific suggestions as to how could we
encourage the reuse of brownfield properties as open space or
recreational areas?
Response. Because the redevelopment of recreational and open space
is not developer driven, the responsibility falls largely upon the
municipality, with some support from other public bodies. For the city
to redevelop and maintain a recreational facility and preserve open
space, as I have explained above, can be a very expensive option.
Therefore, the best encouragement for cities to redevelop
brownfields is to hear how other cities procured the funds to acquire
sites, clean up and redevelop these lands for open space and
recreational purposes. Also, having a clear source of funding not
fragmented funding through various agencies would greatly reduce the
resistance to redevelopment of brownfields.
Nationally, the mayors have been very supportive of pending
legislation, like the Conservation and Reinvestment Act (CARA), which
will increase the availability of Federal funds for the acquisition of
lands for open space/park/recreational uses, including funding for the
development and rehabilitation of these public assets.
__________
STATEMENT OF R.B. JONES, CITY COUNCILMAN, NATIONAL ASSOCIATION OF LOCAL
GOVERNMENT ENVIRONMENTAL PROFESSIONALS (NALGEP)
INTRODUCTION
Mr. Chairman and distinguished members of the Subcommittee, my name
is R.B. Jones, and I am a City Council Member representing the city of
East Palo Alto, California. I also served as the Mayor of my City for
the previous 4 years. I am pleased to be here today to testify on
behalf of the National Association of Local Government Environmental
Professionals, or ``NALGEP.'' NALGEP appreciates the opportunity to
present this testimony on the views of local government officials from
across the Nation on the need for additional Federal incentives to
promote the cleanup, redevelopment and productive reuse of brownfields
sites in local communities.
NALGEP represents local government officials responsible for
ensuring environmental compliance, and developing and implementing
environmental policies and programs. NALGEP's membership consists of
more than 130 local government entities located throughout the United
States. Our members include many of the leading brownfields communities
in the country such as Providence, Trenton, Portland, Chicago, Los
Angeles, Salt Lake City, Dallas, and Cuyahoga County (Ohio), to name a
few.
In 1995, NALGEP initiated a brownfields project to determine local
government views on national brownfields initiatives such as the EPA
Brownfields Action Agenda. The NALGEP Brownfields Project culminated in
a report, entitled Building a Brownfields Partnership from the Ground
Up: Local Government Views on the Value and Promise of National
Brownfields Initiatives, which was issued in February, 1997.
During the past few years, NALGEP has continued its work on
brownfields through coordinating work groups of local officials to
address the following issues: (1) Brownfields Cleanup Revolving Loan
Funds; (2) use of HUD Community Development Block Grants for
Brownfields; (3) building partnerships between business and local
government officials to reduce sprawl and promote smart growth; and (4)
implementing the Administration's Brownfields Showcase Community
initiative. As a result of these efforts, NALGEP is well qualified to
provide the Committee with a representative view of how local
governments, and their environmental and development professionals,
believe the Nation must move ahead to create long-term success in the
revitalization of brownfields properties.
NALGEP's testimony today will focus on the following areas: (1) the
urgent need for increased Federal funding to support the cleanup and
redevelopment of brownfields sites across the country; (2) the need for
further liability clarification to encourage the private sector to step
forward and revitalize more sites; (3) the need to facilitate the
participation of other Federal agencies (e.g., Army Corps of Engineers,
Department of Transportation, HUD) in supporting local brownfields
initiatives; and (4) the urgent need to provide Superfund liability
relief for local governments that owned municipal landfills or sent
non-toxic municipal solid waste or sewage sludge to landfills.
The cleanup and revitalization of brownfields represents one of the
most exciting, and most challenging, environmental and economic
initiatives in the nation. Brownfields are abandoned, idled, or under-
used industrial and commercial properties where expansion or
redevelopment is hindered by real or perceived contamination. The
brownfields challenge faces virtually every community; experts estimate
that there may be as many as 500,000 brownfields sites throughout the
country.
The brownfields issue illustrates the connection among
environmental, economic and community goals that can be simultaneously
fostered through a combination of national leadership, State
incentives, and the innovation of local and private sector leaders.
Cleaning up and redeveloping brownfields provides many environmental,
economic and community benefits including:
expediting the cleanup of thousands of contaminated sites;
renewing local economies by stimulating redevelopment,
creating jobs, expanding the local tax base, and enhancing the vitality
of communities; and
limiting sprawl and its associated environmental problems
such as air pollution, traffic and the development of rapidly
disappearing open spaces.
EAST PALO ALTO'S BROWNFIELDS INITIATIVES
The city of East Palo Alto is a small community of 25,000 people
that has never enjoyed the economic prosperity of its neighboring
communities in Silicon Valley. The City has the highest levels of
unemployment and poverty and lowest median income in San Mateo County.
In addition, the City has struggled to significantly reduce its crime
rate, which was one of the highest in the Nation in the early 1990's.
However, the City is successfully moving forward to revitalize our
community. East Palo Alto was selected by the Administration as one of
16 Brownfields Showcase Communities nationwide, announced by Vice
President Gore in spring 1998. As part of the Showcase initiative, we
are working with Federal and State agencies to promote sustainable
environmental cleanup and economic development.
Our focus is the Ravenswood Industrial Area (``RIA'') and the
adjacent Four Corners redevelopment area. The Ravenswood Industrial
Area, a large, contiguous region of approximately 130 developable acres
in a historically mixed agricultural, commercial, industrial and
residential area, was designated as a U.S. EPA Brownfields Assessment
Pilot in 1996. The property is affected by a multitude of toxic
substances, including arsenic, chromium and other heavy metals,
pesticides and herbicides, chlorinated solvents and petroleum
contamination. The City partnered with U.S. EPA Region 9 and the San
Francisco Bay Regional Water Quality Control Board to assess the site
and estimates remediation costs at $2-5 million.
The City has developed a strategic plan and design to redevelop
this area into a mixed-use development and employment center, with up
to 2 million square feet of commercial and high-technology offices and
light manufacturing. New, medium-density housing is also planned
nearby. The City will seek to promote the location of environmentally
sensitive businesses, the use of green building practices, and
development that enhances and protects the beauty of adjacent resources
such as San Francisco Bay, wetlands, and open space areas. The Four
Corners portion is slated for the establishment of a new town center
including government buildings, civic space and commercial
establishments. The overall design will enhance the com-
munity and its livability. The City expects that redevelopment of the
entire Ravenswood Industrial Area will create 4,000 new jobs and
generate more than $1 million per year in new tax revenues.
The redevelopment of Ravenswood will also benefit the broader
region. Silicon Valley is enjoying the hottest market in 14 years, but
is rapidly running out of office space and developable land. This
leaves the Ravenswood Industrial Area poised to take advantage of a
tight real estate market and finally enjoy the prosperity of the
booming regional economy.
However, revitalizing this area will not be easy. Our biggest
challenge will be to obtain the $2-5 million required to clean up the
site. It is unlikely that a private developer would take on this
project with such significant cleanup costs. Currently, there are few
available sources to fill this gap. Consequently, East Palo Alto's last
remaining developable area remains underutilized.
In addition, we will need to secure funds to upgrade the
infrastructure in the area including expanding and improving the major
entrance road to Ravenswood, enhancing our flood control and
prevention, and upgrading our utilities. East Palo Alto's challenges
clearly demonstrate the need for innovative partnerships and increased
Federal funding if we are to fully reap the many benefits from
redeveloping brownfields like the Ravenswood area.
The Federal Government, particularly the U.S. EPA, has played an
important role in helping East Palo Alto develop and advance our
brownfields redevelopment efforts. Specifically it has:
Provided critical funding and a staff person to enable us
to institutionalize a local program and to help investigate and clean
up specific sites;
Provided technical assistance and other resources that
have helped us learn from other communities and take on the many
challenging obstacles to brownfields revitalization;
Connected us with other Federal agencies that have
resources and technical expertise; and
Most importantly, provided the critical leadership needed
to educate the many stakeholders and the general public that
redeveloping brownfields can be done and that it can provide
significant economic and environmental benefits for communities across
the nation.
BROWNFIELDS LEGISLATIVE NEEDS
I. Ensuring Adequate Resources for Brownfields Revitalization
As East Palo Alto's efforts to redevelop the Ravenswood area
clearly demonstrate, local governments need additional Federal funding
for site assessment, remediation and economic redevelopment to ensure
long-term success in revitalizing our brownfields. The costs of site
assessment and remediation can create a significant barrier to the
redevelopment of brownfields sites. In particular, the costs of site
assessment can pose an initial obstacle that drives development away
from brownfields sites. With this initial obstacle removed, localities
are much better able to put sites into a development track. In
addition, the allocation of public resources for site assessment can
provide a signal to the development community that the public sector is
serious about resolving liability issues at a site and putting it back
into productive reuse. Likewise, resources for cleanup are the missing
link for many brownfield sites a link that keeps brownfields from being
redeveloped into productive areas in many communities like East Palo
Alto.
The use of public funds for the assessment and cleanup of
brownfields sites is a smart investment. Public funding can be
leveraged into substantial private sector resources. Investments in
brownfields yield the economic fruit of increased jobs, expanded tax
bases for cities, and urban revitalization. And the investment of
public resources in brownfields areas will help defer the environmental
and economic costs that can result from unwise, sprawling development
outside of our urban centers.
The following types of Federal funding would go a long way toward
helping local communities continue to make progress in revitalizing our
brownfields sites:
Grants for Site Assessments and Investigation.--EPA's
Brownfields Assessment Pilot grants have been extremely effective in
helping localities to establish local brownfields programs, inventory
sites in their communities, investigate the potential contamination at
specific sites, and educate key stakeholders and the general public
about overcoming the obstacles to brownfields redevelopment. Additional
funding for site assessments and investigation is needed to help more
communities establish local brownfields programs and begin the process
of revitalizing these sites in their communities.
Grants for Cleanup of Brownfields Sites.--There is a
strong need for Federal grants to support the cleanup of brownfields
sites across the country. The U.S. Conference of Mayors' recent report
on the status of brownfields sites in 223 cities nationwide indicates
that the lack of cleanup funds is the major obstacle to reusing these
properties. For many brownfields sites, a modest grant targeted for
cleanup can make the critical difference in determining whether a site
is redeveloped, creating new jobs and tax revenues, or whether the site
remains polluted, dangerous and abandoned.
Grants to Capitalize Brownfields Cleanup Revolving Loan
Funds.--In addition to grants, Federal funding to help localities and
states to establish revolving loan funds (RLFs) for brownfields cleanup
is another effective mechanism to leverage public and private resources
for redevelopment. EPA deserves credit for championing brownfields RLFs
as a mechanism for helping communities fill a critical gap in cleanup
funding.
Unfortunately, the effectiveness of the EPA's current brownfields
cleanup RLF program is severely undermined by the lack of new Federal
brownfields legislation. Under current law, localities are required to
jump through and over numerous National Contingency Plan (NCP)
bureaucratic hoops and hurdles to establish their local RLFs. Moreover,
the NCP prevents the use of RLF funds on petroleum contaminated sites
and on buildings contaminated with asbestos or lead common elements of
brownfield sites. East Palo Alto has received $500,000 from EPA to
capitalize a local RLF. However , the current NCP requirements will
make it difficult and costly for the City to effectively use these
funds. These NCP requirements were originally established for Superfund
NPL sites, not for brownfields sites. Congress can easily fix this
problem by making it clear that local brownfields RLFs are not required
to meet the NCP requirements established for Superfund sites.
II. Liability Clarification at Brownfields Sites
On the issue of Federal Superfund liability associated with
brownfields sites, NALGEP has found that the Environmental Protection
Agency's overall leadership and its package of liability clarification
policies have helped establish a climate conducive to brownfields
renewal, and have contributed to the cleanup of specific sites
throughout the nation. Congress can enhance these liability reforms by
further clarifying in legislation that Superfund liability does not
apply to certain ``non-responsible'' parties such as innocent
landowners, prospective purchasers and contiguous property owners.
It is clear that these EPA policies, and brownfields redevelopment
in general, are most effective in states with effective voluntary
cleanup programs. NALGEP has also found that states are playing a
critical lead role in promoting the revitalization of brownfields. More
than forty states have established voluntary or independent cleanup
programs that have been a primary factor in successful brownfields
cleanup. The Federal Government should further encourage states to take
the lead at brownfields sites. States are more familiar with the
circumstances and needs at individual sites. Moreover, it is clear that
U.S. EPA lacks the resources or ability to provide the assistance
necessary to remediate and redevelop the hundreds of thousands of
brownfields sites in our communities.
The effectiveness of State leadership in brownfields is
demonstrated by those states that have taken primary responsibility for
brownfields liability clarification pursuant to Superfund ``Memoranda
of Agreement'' (MOAs) with U.S. EPA. These MOAs defer liability
clarification authority to those states. In order to further facilitate
brownfields cleanups across the country, NALGEP finds that the Federal
Government should create clear standards under which States that meet
minimum criteria can assume the primary role for resolving liability
and issuing no further action decisions for brownfield sites.
Authority for qualified states to play the primary role in
liability clarification is critical to the effective redevelopment of
local brownfields sites. A State lead will increase local flexibility
and provide confidence to developers, lenders, prospective purchasers
and other parties that brownfields sites can be revitalized without the
specter of Superfund liability or the involvement of Federal
enforcement personnel. Parties developing brownfields want to know that
the State can provide the last word on liability, and that there will
be only one ``policeman,'' barring exceptional circumstances (i.e.,
where there is an imminent and substantial threat to public health or
the environment).
At the same time, local officials are also concerned about
delegating too much cleanup authority too fast to states that have not
clearly demonstrated the ability to play a primary role. States vary
widely in the technical expertise, resources, staffing, statutory
authority and commitment necessary to ensure that brownfields cleanups
are adequately protective of public health and the environment. If
brownfields sites are improperly assessed, remediated or put into
reuse, it is most likely that the local government will bear the
largest impact from any public health emergency or contamination of the
environment. NALGEP believes that the U.S. EPA has a role to play in
ensuring that liability authority over brownfields sites should only be
delegated to states that demonstrate an ability and commitment to
ensure protection of public health and the environment in the
brownfields redevelopment process. Moreover, EPA should be able to
assert its Superfund authority at particular sites in exceptional
circumstances (i.e., where there is an imminent and substantial threat
to public health or the environment) where the State response is
inadequate; or where the State requests EPA assistance.
III. Facilitating the Participation of Other Federal Agencies in
Brownfields Revitalization
The cleanup and redevelopment of a brownfields site is often a
challenging task that requires coordinated efforts among different
government agencies at the local, State and national levels, public-
private partnerships, the leveraging of financial resources from
diverse sources, and the participation of many different stakeholders.
Many different Federal agencies can play a valuable role in providing
funding, technical expertise, regulatory flexibility, and incentives to
facilitate brownfields revitalization. For example, HUD, the Economic
Development Administration, the Department of Transportation, and the
Army Corps of Engineers have all contributed important resources to
expedite local brownfields projects. The U.S. EPA and the
Administration have provided strong leadership through the Brownfields
Showcase Community initiative that is demonstrating how the Federal
Government can coordinate and leverage resources from many different
Federal agencies to help localities solve their brownfields problems.
Congress can help strengthen the national brownfields partnership
by further clarifying that the various Federal partners play a critical
role in redeveloping brownfields and by encouraging the agencies to
work cooperatively to meet local needs. For example, Congress should be
commended for legislation passed in 1998 to clarify that HUD Community
Development Block Grant funds can be used for all aspects of
brownfields projects including site assessments, cleanup and
redevelopment. This simple step has cleared the way for communities
across the country to use these funds in a flexible fashion to meet
their specific local needs. In addition, Congress has provided $25
million in each of the past 2 years for HUD's Brownfields Economic
Development Initiative.
Similarly, Congress should consider clarifying that it is
appropriate and desirable for the Army Corps of Engineers to use its
resources and substantial technical expertise for local brownfields
projects. East Palo Alto needs the Corps of Engineers' help to succeed
in its Ravenswood revitalization initiative. The Ravenswood area has
experienced severe flooding from the adjacent San Francisco Bay, making
flood damage prevention a top priority. In addition, East Palo Alto
needs assistance in the construction of drainage, sewage and other
environmental infrastructure. Moreover, the Corps could assist East
Palo Alto to protect and restore the ecosystem of the area, which
includes wetlands and other significant natural areas, as well as the
challenges of brownfields contamination. East Palo Alto has worked
closely with the Corps to assess environmental contamination and
waterfront development issues, and we seek to continue this close
cooperation.
I understand that the Corps of Engineers intends to propose new
authorities in the Water Resources Development Act (WRDA) 2000
legislation for brownfields cleanup and environmental infrastructure,
in order to protect the water quality and promote the revitalization of
communities across the nation. I want you to know that East Palo Alto
believes this is an excellent proposal that will make a big difference
for our city and many other communities.
Congress also should work with EPA and the Administration to
determine how other agencies can help facilitate more brownfields
revitalization. By taking these steps, Congress can give communities
additional tools, resources, and flexibility to overcome the many
obstacles to brownfields redevelopment.
IV. Providing Superfund Liability Relief for Local Governments
Local governments have a very serious problem. We have been saddled
with years of delay, and millions of dollars of liability and legal
costs under the Superfund law simply because we owned or operated
municipal landfills or sent municipal solid waste or sewage sludge to
landfills that also received industrial and hazardous wastes. Local
governments have faced costly and unwarranted contribution suits from
industrial Superfund polluters seeking to impose an unfair share of
costs on parties that contributed no toxic wastes to these so-called
``co-disposal landfill'' sites. We estimate that as many as 750 local
governments at 250 sites nationwide are affected by the co-disposal
landfill issue. The costs that our citizens bear as a result are unfair
and unnecessary.
Local governments are in a unique situation at these co-disposal
sites. First, municipal solid waste and sewage sludge collection and
disposal is a governmental duty. It is a public responsibility to our
communities that we cannot ignore, and we make no profit from it.
Second, the toxicity of municipal solid waste and sewage sludge has
been shown to be significantly lower than conventional hazardous wastes
and, as such, represents only a small portion of the cleanup costs at
co-disposal landfills. Yet industrial Superfund polluters continue to
attempt to make localities pay millions of dollars in liability costs
unfair--costs that place an unreasonable burden on local taxpayers
across the country.
In February 1998, the EPA finalized an administrative settlement
policy to limit liability under Superfund for generators and
transporters of municipal solid waste and sewage sludge, and for
municipal owners and operators of co-disposal landfills. However, as
fair and appropriate as the administrative policy is, it appears that
legislative action to resolve the municipal Superfund liability issue
is necessary and justified. First, the EPA policy is only a policy,
non-binding on the Agency and subject to change or challenge. Second,
this policy has already been the subject of litigation, and the real
threat of further litigation involving local governments remains. A
change in the Superfund law to address this issue is necessary to
reduce the costly litigation and delay that municipalities continue to
face at co-disposal sites. Third, we believe that legislative enactment
of municipal Superfund liability provisions will give localities the
certainty and confidence to make use of this settlement mechanism much
as the codification of lender liability Superfund provisions has
provided certainty for the banking industry.
CONCLUSION
In conclusion, local governments are excited to work with the
Federal Government to promote the revitalization of brownfields,
through a combination of increased Federal investment in community
revitalization, further liability clarification, and other mechanisms
to strengthen the national partnership to cleanup and redevelop our
communities. NALGEP thanks the Subcommittee for this opportunity to
testify, and we would be pleased to provide further input as the
process moves forward.
__________
STATEMENT OF ROBERT W. VARNEY, COMMISSIONER, NEW HAMPSHIRE DEPARTMENT
OF ENVIRONMENTAL SERVICES, ON BEHALF OF THE ENVIRONMENTAL COUNCIL OF
STATES
Good morning, Mr. Chairman and Members of the Committee; I am
Robert W. Varney, Commissioner of the New Hampshire Department of
Environmental Services. I am here today to represent views of the
Environmental Council of States (ECOS) as a current member and past
president.
ECOS, which formed in December 1993, is a non-partisan, non-profit
organization comprised of environmental agency commissioners and
directors responsible for the states and territories. The ECOS mission
is to improve the environment of the United States by providing for the
exchange of ideas, views and experiences among the states; fostering
cooperation and coordination in environmental management; and
articulating states' positions to Congress and EPA on environmental
issues.
As you know, states are responsible for the vast majority of
hazardous waste cleanups across the United States. In New Hampshire,
for example, we are dealing with about 600 hazardous waste sites and
3,000 petroleum sites. Of the 600 hazardous waste sites, 18 are Federal
NPL sites, one of which is the former Pease Air Force Base with
multiple contaminated sites. Thus, the State is solely responsible for
the investigation and/or cleanup of 97 percent of the hazardous waste
sites within New Hampshire's borders. Other states have a similar, if
not higher, percentage. This is an important point when considering
reform of the Federal Superfund Program.
In addition, a high percentage of the NPL sites across the Nation
have entered the cleanup phase of the Superfund program. For example,
of the 18 NPL sites in New Hampshire, 15 sites or 83 percent are in the
remedial action phase. New Hampshire is assuming the major oversight
lead for these sites through the State groundwater management permit
process. Through this process, a groundwater management zone
encompassing the contaminant plume is developed as an institutional
control, prohibiting groundwater use. The groundwater and surface
waters within the zone are then monitored over a period of years to
ensure that the remedy is effective and that cleanup goals have been
achieved. There are many states across the country which are fully
capable of managing all hazardous waste cleanup programs within their
borders. EPA and Congress should take steps to delegate Superfund to
any states which have these capabilities and are willing to assume
responsibilities for the program. However, we are not saying that there
is no need for a Federal Superfund program. Some states do not have the
capacity, resources, or interest in handling Federal Superfund sites.
Even sophisticated, well-funded, and experienced states rely on the
Federal Superfund program to achieve their goals. If the Federal
program is not funded to address the upcoming orphaned high risk sites
that will appear on the NPL, then these sites are going to languish,
threatening our citizens and the environment and stymieing reuse. It
would be a mistake to think that these high risk sites will be cleaned
up without a fully funded Federal program. States simply do not have
the financial resources to complete cleanups at high risk, orphaned NPL
sites.
In the past 11 years as the environmental commissioner for New
Hampshire, I have seen a prescriptive Superfund program, which created
duplication of effort between the Federal and State governments, evolve
into a more rational, cost-effective Superfund program, which fosters
mutually supportive roles for the Federal and State governments.
Although ECOS commends EPA for making a number of administrative
improvements which have helped to streamline the implementation of the
Superfund program, some states feel there is considerable overlap and
duplication of effort. Duplication of effort is an inefficient use of
government resources and may lead to confusion about roles,
responsibility and accountability.
For example, 4 years ago in New Hampshire, State project managers
were working with site owners and their consultants to investigate the
same contaminated properties where EPA and its contractor were
conducting site investigations at the same time. Through EPA's
administrative improvements in the pre-remedial program and a Federal
voluntary cleanup program grant to New Hampshire to strengthen the
State site cleanup program, this duplication of effort has been
eliminated. New Hampshire and EPA New England have agreed that New
Hampshire can now use Federal pre-remedial money to investigate
abandoned/dormant sites and contaminated water supplies to identify
potentially responsible parties (PRPs). Once PRPs are identified, New
Hampshire can then work with them to remediate the site; without having
to list the site on the NPL, if possible. Out of New Hampshire's
approximately 275 unresolved hazardous waste sites, the approximately
40 sites that are abandoned/dormant or involve contaminated water
supplies and that were not being addressed because of a lack of State
funding, are now being addressed. EPA should be encouraged to extend
this initiative to all states who want to participate in this program.
This initiative illustrates the important point that the NPL is no
longer reserved for just the nation's ``worst of the worst'' sites. NPL
listing has become the final resort for those high risk sites that are
truly orphaned and are in need of Federal funding for remediation.
According to a recent General Accounting Office (GAO) report entitled,
``Hazardous Waste: Unaddressed Risks at Many Potential Superfund
Sites'', there are 232 sites on EPA's inventory of potentially
contaminated sites that either states or EPA believe should go on the
NPL. This underscores the need for a continuing, fully funded Federal
Superfund program.
Many states have expressed the need for a waiver of CERCLA
liability when the State has cleaned up a site under an approved State
plan. As a case in point, South Dakota has taken over the Brohm gold
mine in the Black Hills. Even though the State has communicated and
coordinated with EPA throughout the entire process, EPA cannot
guarantee that the State will not incur CERCLA liability. The mining
industry offered to assist the State of South Dakota on this project,
but after researching the CERCLA law, they decided to stay away or risk
exposure to CERLCA liability. Superfund reform is needed so that states
and others who are not the parties responsible for creating the problem
can work together to get things fixed. This would accelerate the rate
of site cleanups while reducing Federal expenditures.
ECOS strongly supports the voluntary cleanup program. The Superfund
program and State hazardous waste cleanup programs have focused onsites
posing the greatest threat to human health and the environment.
However, there remain many low and medium risk sites. For them, the
majority of states have initiated voluntary cleanup programs in which
the owner or developer works cooperatively with the state, as opposed
to adversarial enforcement-driven program. Site cleanups can take less
time, and many states offer such additional benefits as technical
assistance, financial support, and importantly, liability assurances.
Federal Superfund liability should also be waived at non-NPL sites that
have been cleaned up in compliance with a State plan. ECOS believes
voluntary cleanup programs should be encouraged and expanded.
ECOS also strongly supports the brownfields program. The need to
encourage ``smart growth'' through the redevelopment of brownfields
sites has never been greater. As reported in the March 3, 2000 issue of
the Environment Reporter, published by the Bureau of National Affairs,
``Redeveloping contaminated urban properties known as brownfields could
add 550,000 jobs and $2.4 billion in new tax revenues, according to a
survey report released by the U.S. Conference of Mayors''. Successful
initiation of these projects is heavily dependent on adequate funding,
the liability language in prospective purchaser agreements, and
innocent landowner and contiguous property owner provisions.
Over the last several years, EPA and the states have launched
several successful efforts spurring redevelopment of brownfields sites.
The work done to date has resulted in the investigation, cleanup and
redevelopment of many sites across our nation, resulting in the
elimination of health and safety threats to our citizens, creation of
new jobs, and the revitalization of our communities. ECOS supports
increasing and continuing grant funding to states and municipalities
(urban and rural) for these initiatives. In spite of these noteworthy
accomplishments, financing site cleanup remains a significant barrier
to brownfields redevelopment. Conventional lending institutions
continue to be wary of lending for actual site cleanup, thereby making
it extremely difficult for developers to obtain financing for this
work.
In 1997, EPA began providing grant funding to cities and states
across the Nation to establish Brownfields Cleanup Revolving Loan
Funds. This funding is to be used to establish revolving loan funds to
provide financing for cleanup activities at brownfields sites. The New
Hampshire Department of Environmental Services received a $1.45 million
loan fund grant and is currently working to develop its loan program.
New Hampshire is very pleased to be the beneficiary of EPA's efforts to
provide financing for cleanup of brownfields sites, but I am also very
concerned about the future success of our loan fund and those across
the nation. Since 1997, over 60 Brownfields Cleanup Revolving Loan Fund
pilots have been granted nationwide. To date, only two loans have been
made nationwide, totaling only $250,000.
We believe that the central reason for this apparent failure of the
Revolving Loan Fund initiative is the onerous set of requirements
placed upon both the fund administrator and participating borrowers.
The loan fund pilot grant funding is provided under the authority of
CERCLA Section 104. All projects receiving funding under the program
will be subject to compliance with CERCLA and the NCP. These
requirements are hindering the success of the initiative for two
reasons. First, grant recipients are required to expend considerable
time and resources to establish their lending programs, with
requirements that far exceed those in more traditional revolving loan
fund programs. Many grant recipients are city governments whose
personnel resources are already stretched thin, and are ill prepared to
take on the additional administrative burden associated with the loan
fund program. These grantees would benefit significantly from a
simpler, more streamlined grant program.
Second, and more important, the requirements imposed upon borrowers
in which the relationship that must be established between the grant
recipient and borrowers are too restricted. Borrowers are allowed to
use cleanup loan funds only for activities deemed eligible under CERCLA
and the NCP. While the borrower is not necessarily required to make
this determination, the ``brownfields site manager,'' and government
employee designated by the grant recipient, is required to oversee the
cleanup operations in order to ensure that all work is eligible and
compliant. This creates a rather unattractive scenario from the
borrower's perspective since all actions of his cleanup contractor are
scrutinized by a regulatory authority to determine if they will be
eligible for financing. In our experience in New Hampshire, the
developers who have the willingness and the capability to tackle
difficult and potentially risky brownfields redevelopment projects are
not receptive to this kind of oversight. It leaves too many questions
unanswered with regard to total project costs and the availability of
financing.
We are very supportive of EPA's efforts to provide Brownfields
Cleanup Revolving Loan Fund grants, but the program needs to be
simpler, and more accessible and attractive to developers of
brownfields properties.
Congress and EPA should be very careful when considering changes in
Federal liability provisions, especially with respect to sites that are
not on the NPL. These sites, comprising a universe far greater than the
NPL, represent the bulk of our workload in the states and the success
of many State programs in addressing these sites has been reliant on
the present Federal liability structure. It should be noted that the
states do not have a consensus approach to liability. While many states
rely on strict liability to clean up sites, some believe a causation
standard of liability is fairer and would encourage the redevelopment
of brownfields.
Maintaining adequate Federal funding is critical to the success of
the Superfund program. Since the majority of PRPs are national
corporations and since not all states have equal abilities to generate
the needed funding for site remediation, the amount of Federal funding
is crucial to the success of State cleanup programs nationally. It
provides a level playing field for all the states and ensures that PRPs
are treated in a fair and consistent manner.
CERCLA should also be changed so that the response trust fund can
be used to support operation and maintenance activities for the entire
period of remedial action and monitoring. ECOS recommends that these
expenditures be subject to the same 10 percent State match requirement
as cleanup actions. States have currently been held responsible for 100
percent of the operation and maintenance costs. The dichotomy between
the State cost shares for remedial action and those for operation and
maintenance has, in some instances, led to conflicting interests
between EPA and the states in making remedy decisions. In some cases,
operation and maintenance at NPL sites may cost more in the long run
than the remedial action itself. We urge you to correct this by
ensuring that the State cost share for both the remedial action and
operation and maintenance are the same.
As I have experienced in New Hampshire, and most of the other
states would agree, EPA's Superfund Removals program plays a critical
role in the Superfund program. Great risk reduction to both public
health and the environment has been accomplished through this program.
EPA, on average, conducts $2 to $3 million worth of emergency removals
each year in New Hampshire alone. The success of the Superfund Removals
program needs to be fully recognized and the program should be
strengthened. The strengthening should include increased funding to
more quickly address time-critical (imminent threat to public health or
the environment) actions that shouldn't have to wait in a funding
priority queue. Technically capable states should be allowed to conduct
federally funded state-lead time-critical removal actions.
In October 1996, EPA and ASTSWMO committed to conduct two federally
funded state-lead time-critical pilots, one in New Hampshire and one in
Texas. The final report on the pilots was released in January 2000. The
ASTSWMO Removal Action Focus Group believes that state-lead removals
initiate early risk reduction and lead to complete and final remedies.
The pilots demonstrated that State action at sites ended with complete
remediation, eliminating what is often a two step process involving a
Federal removal action being taken, followed by State or Federal
remediation. This provides for shorter cleanup time lines. Furthermore,
the states were able to effectively coordinate and leverage additional
governmental resources to address local public health, public
information and redevelopment issues in addition to ensuring a timely
cleanup.
ECOS commends EPA's efforts for considering land use in the
development of soil cleanup standards, and in moving toward a resource
based and pragmatic approach for groundwater remediation decisions. We
believe it represents a significant improvement for the Superfund
program. However, extreme care must be used when determining the use
and value of groundwater. In states, such as New Hampshire, where
groundwater is a primary source of drinking water, low cost remedy
components such as natural attenuation and point-of-use treatment, may
be short-sighted. A benefit/cost analysis should be evaluated over the
life-cycle of the remedy, so that the most cost-effective groundwater
remedy is chosen.
Since the hazardous waste sites in each State being remediated
under the Federal program are a small subset of the total sites being
addressed by each state, preserving the state's role and authority in a
consistent manner at all sites in a State is essential. The preemption
of State authority would damage the integrity of both the Federal and
State programs. For example, if an NPL site is contaminating an aquifer
and is not subject to the same standards as non-NPL sites, the work
being performed at surrounding non-NPL sites to cleanup the aquifer
will be regarded as useless since the lowest common denominator would
apply (i.e., the standard at the NPL site). Any new legislation should
ensure that the states are an equal partner in the process, since it is
the State and local governments that are actually the trustees of the
state's resources. Most site remediation problems really are local
rather than national, and thus, states and local government should have
a strong role.
ECOS believes that the best option is a comprehensive bill
addressing a full range of issues, including the following:
Reinstate the Superfund tax to provide sufficient funds to
achieve program goals;
Provide greater authority and funding to the states
through support grants for remedial program development, site
assessment and remediation enforcement, and oversight;
Provide greater authority and funding to states to execute
the Superfund Removal program if they are capable and wish to do so;
Provide greater support for State Voluntary Cleanup
Programs in the form of a legal release to those who voluntarily clean
sites;
Provide liability protection to non-culpable parties in
State ``brownfields'' programs to encourage potentially responsible
parties and prospective purchasers to reuse and redevelop these
contaminated properties;
Provide that the 10 percent State share be applied to
operation and maintenance costs as well as remedial action costs;
Improve the natural resource damage claims program through
changes such as allowing for funding natural resource damage
assessments from Superfund;
Ensure a strong State role in the cleanup of Federal
facilities, with no preemption of State standards; and,
Provide Governors the statutory right to concur with the
listing of any new NPL sites in their states.
If comprehensive reauthorization isn't possible within the next
year, then Congress and EPA should focus on the following items for
further administrative and legislative changes:
Reinstate the Superfund taxes to provide more money/
resources;
Address liability issues associated with prospective
purchasers of contaminated properties, innocent landowners, contiguous
property owners, and the liability of small parties;
Authorization with Federal funding for the removals
program; and,
Federal funding to states for ``Superfund Prevention''
through voluntary cleanups, brownfields redevelopment, and State
enforcement actions.
In closing, ECOS appreciates the opportunity to continue working
with you in a spirit of cooperation.
Any reforms to the Federal Superfund Program must acknowledge the
maturity of the Superfund program, the maturity and capability of State
programs, and enhance the complimentary and mutually supportive State
and EPA roles that have developed. The Superfund program must be built
on a common ground resolution that is both protective of public health
and the environment, and cognizant of economic opportunity and the
revitalization of blighted areas.
______
RESPONSES OF BOB VARNEY TO ADDITIONAL QUESTIONS FROM SENATOR SMITH
Question 1. The states have spoken about the need to absolve
liability of parties at Superfund sites where voluntary cleanups are
being undertaken. Through the years, numerous provisions have been put
forth to provide States with finality. From a State perspective, what
is the best way to protect the environment while allowing State
finality in decisions regarding voluntary cleanup?
Response. The Environmental Council of the States (ECOS) offers the
same position as the National Governor's Association (NGA). There needs
to be a liability provision within the CERCLA statute that ensures that
at non-NPL sites, a release of liability under State cleanup laws
protective of human health and the environment constitutes, by
operation of law, a release from Federal liability. (NGA Policy on
Superfund, NR-4. Superfund, Sec. 4.4 Liability)
Question 2a. In your testimony, you make the point that the NPL is
no longer reserved for just the nation's ``worst of the worst'' sites.
In fact, the NPL has become the final resort for those high-risk sites
that are truly orphaned and are in need of Federal funding for
remediation. In your view, is it necessary to continue level funding
for the Superfund program recognizing that the net reduction in the
number of NPL sites in that few sites are being place on the NPL while
there is an increase in the number of sites being taken off?
Response. Yes. ECOS offers the same position as NGA. States are
concerned about proposals to legislatively cap or limit the NPL because
of differences in capacities among states, the complexity and cost of
some cleanups, the availability of responsible parties, enforcement
considerations, and uncertainty as to the actual number of NPL caliber
sites which will require Federal assistance. There must be a continuing
Federal commitment to clean up sites under such circumstances. (NGA
Policy on Superfund, NR-4. Superfund, Sec. 4.11 National Priorities
List).
Question 2b. Since the NPL is a final resort for high-risk sites,
many sites are being cleaned up by the states. What can we do to remove
barriers that seem to exist in cleaning up these sites and encourage
voluntary cleanup programs?
Response. ECOS offers the same position as the NGA. CERCLA should
be amended to give credit, in the form of a legal release, to
volunteers who have cleaned a site to protection standards in
accordance with a State voluntary cleanup law protective of human
health and the environment. These changes will encourage voluntary
cleanup and thus increase the number of cleanups completed. In
addition, CERCLA should encourage and provide clear incentives, such as
tax exemptions and liability protections for non-culpable parties, for
Brownfields programs at the State level to encourage potentially
responsible parties, and for prospective purchasers to reuse and
redevelop these contaminated properties. (NGA Policy on Superfund, NR-
4. Superfund, Sec. 4.10 Voluntary Cleanup).
Question 3a. As a practical matter, what is the working
relationship between EPA and New Hampshire at non-NPL sites?
Response. In the last 3-4 years New Hampshire and EPA have
dramatically improved their working relationship on non-NPL sites
(i.e., State hazardous waste sites). The agencies have cooperatively
worked to focus State and Federal resources on the high risk and
abandoned sites and to eliminate duplication between the programs.
There are approximately 600 non-NPL hazardous waste sites and 18 NPL
sites in New Hampshire. Approximately 60 percent (+360) of the non-NPL
sites are either closed or clean-up is proceeding under a permit issued
by New Hampshire. Of the 40 percent ( 240) of
``unresolved'' non-NPL sites, the majority are progressing with private
parties performing work under New Hampshire's supervision.
Approximately 40-100 of the ``unresolved'' sites are Brownfield sites,
abandoned, or have uncooperative responsible parties. New Hampshire,
which has a mature, integrated, and risk-based remediation program, has
worked cooperatively with EPA to focus the Federal Pre-Remedial,
Brownfield and Voluntary Clean-up programs on the ``unresolved'' non-
NPL sites that have the greatest need while continuing to encourage
private parties to perform voluntary clean-ups whenever possible.
Question 3b. Are New Hampshire's needs being met with regard to the
Surrette Battery Site in Northfield?
Response. In meetings with the Town of Northfield and the State,
EPA has publicly committed to complete the clean-up work at the
Surrette Battery Site in Northfield. New Hampshire is encouraged that
EPA has given the site a high priority and has obtained a portion of
the additional funds needed to complete the work. EPA anticipates that
the remainder of the necessary additional funds will be secured. While
New Hampshire is pleased with the positive steps taken to date, New
Hampshire and the Town will be working with EPA over the next couple
months to finalize the site clean-up plan and secure all the necessary
funding.
Question 3c. How many ``Surrette Battery'' sites do you think are
out there? These sites are not listed on the NPL and pop up demanding a
need for both Federal and State resources.
Response. New Hampshire estimates there are 20-50 abandoned or
unused former industrial or manufacturing properties scattered
throughout New Hampshire. As the state's economy has strengthened, some
of these properties have been redeveloped by private parties and/or
municipalities. Other sites are in the process of being cleaned-up and
redeveloped using many of the tools that are available for Brownfield
sites. Surrette Battery is a former industrial site, which although
still privately owned, is an economic and environment blight on the
community. Local property taxes are not paid and the owner is not
addressing environmental concerns. The recent fire at Surrette Battery
created immediate health and environmental risks which are being
addressed by the EPA Superfund Time-Critical Removal Program. In
addition, the Town of Northfield received Brownfield assistance from
New Hampshire to evaluate potential redevelopment of the site. New
Hampshire anticipates other abandoned industrial sites will benefit
from a similar integration of Federal, state, and local efforts. New
Hampshire believes that a small portion of these sites will need the
Federal Superfund Program resources to address immediate risks and, as
a last resort, to conduct site clean-up.
______
RESPONSE OF BOB VARNEY TO ADDITIONAL QUESTION FROM SENATOR LAUTENBERG
Question 1. Can you please share with us some of the successes of
the Brownfields program in New Hampshire? Can you tell us roughly how
many sites have been assessed and/or cleaned up, and what types of
reuses your Brownfields program has focused on?
Response. New Hampshire's Brownfields initiatives include those
funded at the Federal level by U.S. EPA and State sponsored
initiatives. Taken together, these initiatives form our integrated
approach to Brownfields redevelopment, which is to utilize all
resources available at the local, state, and Federal levels of
government, and in the private sector to leverage private investment in
Brownfields revitalization. This approach is implemented against a
backdrop of sound Brownfields cleanup policy and the desire to make
judicious use of public funds.
At the Federal level, New Hampshire has received four EPA
Brownfields Assessment Demonstration Pilot grants over the last 3 years
to perform site investigation, remedial action planning, and generally
promote Brownfields redevelopment in the state. New Hampshire grant
recipients include the Department of Environmental Services (DES), the
Office of State Planning Coastal Program, the city of Concord, and the
city of Nashua. In addition, six municipalities have received
Brownfields Targeted Assessment Grants for site investigations at
individual sites.
Under these federally funded initiatives, approximately 100 sites
have had Level I assessments performed. An additional eleven (11) sites
have had Level II Site Investigations performed. Plans call for at
least 10 additional sites to be investigated under these existing
pilots. Of this universe of sites, approximately ten (10) sites have
begun or completed cleanup and redevelopment. We expect that at least
an additional ten (10) sites will be undergoing cleanup and
redevelopment within the next 12 months.
At the State level, New Hampshire's Brownfields Covenant program,
as established under RSA 147-F, is designed to provide incentives for
both environmental cleanup and redevelopment of Brownfields sites by
persons who did not cause the contamination. The Brownfields Covenant
program provides a process by which eligible persons can undertake site
investigation and cleanup in accordance with DES requirements, and in
return receive liability protections in the form of a ``Covenant Not to
Sue'' from the N.H. Department of Justice (DOJ). This program is an
integral component of our Brownfields redevelopment initiatives. To
date, seventeen (17) sites have participated in our Covenant Program,
with five sites having completed cleanup and received a covenant. Three
additional sites are expected to receive a covenant within the next few
months.
Taken together, sites that have received assistance under New
Hampshire's Brownfields initiatives have benefited from approximately
$30,000,000 worth of redevelopment investments. In the most notable
case, a 19-acre site located near downtown Concord, our capitol city,
has been cleaned up and is currently being developed. This site was
abandoned and vacant for over 10 years due to concerns about
environmental contamination. The site will be built out within 12
months, with construction of a hotel/conference center, three office
buildings, and a restaurant.
DES has not focused on specific reuses for brownfields properties.
This is in keeping with our philosophy that site reuse should be
governed by the needs and desires of local communities in which the
sites are located, and by the marketplace. Accordingly, redevelopment
of New Hampshire's brownfields sites has included a wide variety of
uses, including industrial, commercial, residential and reuse as
greenspace.
SUMMARY STATISTICS
Level I Assessments Completed: 100
Level II Assessments Completed: 11
Sites with cleanup/redevelopment started or completed: 10
Sites with cleanup/redevelopment to start within 12 mos: 10
Sites in NH Brownfields Covenant Program: 17
Sites with Covenant Issued: 5
Total approximate redevelopment investment leveraged: $30,000,000
__________
Statement of Terrence Gray, Assistant Director, Air, Waste and
Compliance, Rhode Island Department of Environmental Management
Good afternoon Mr. Chairman and members of the committee. My name
is Terrence Gray and I am the Assistant Director for Air, Waste and
Compliance with the Rhode Island Department of Environmental
Management. My testimony today represents the Rhode Island perspective
on the Superfund program and our views on the future of contaminated
site cleanup programs.
Although Rhode Island is a very small place geographically, we have
many contaminated properties. This contamination is the legacy of the
industrial revolution, which began along the Blackstone River. We have
13 National Priorities List Superfund sites, including the newest NPL
site-Centredale Manor, as well as 538 other investigation and cleanup
projects currently active in our State program. As you can see from
this accounting, the State is responsible for insuring the
investigation and proper cleanup and control of the vast majority of
the contaminated properties we have discovered.
Historically, Rhode Island relied on the Superfund program to
address the worst cases of chemical contamination. Our first site, the
Picillo Farm, was a contemporary of Love Canal and was listed on the
National Priorities List in 1981, 3 years after the site exploded.
Seven other chemical disposal sites in Rhode Island were listed on the
National Priorities List prior to the Superfund amendments in 1986.
After those amendments, we pursued the listing of two Federal
facilities and two other municipal landfills. In addition to the sites
that eventually were listed on the national priorities list, Rhode
Island also nominated over 300 sites as potential Superfund sites that
were included on CERCLIS.
Prior to 1991, Rhode Island had relied exclusively on the Superfund
program and our RCRA hazardous waste management program to address
sites contaminated with chemicals and petroleum. Unfortunately, we were
discovering sites at a rate faster than those programs could address
them. After evaluating the pace of discovery of new sites and the
backlog of sites that existed at that time, we decided to follow the
lead of several other States and establish our own State program.
Through a collaborative stakeholder effort, Rhode Island promulgated
its site remediation regulations in 1993 and the pace of cleanup
throughout the State quickly accelerated. Those regulations lay out a
process for notification, investigation, and remediation of
contaminated properties. It is a flexible process designed to be
adapted to the many types of contaminated sites that we have
encountered. While these new regulations and the alternative regulatory
framework that they provide to responsible parties clearly increased
the amount of clean up in the State, we believe that it is the
continuing threat of listing in the Superfund program, coupled with our
own enforcement actions, that provide the impetus for cooperation.
In 1995, Governor Lincoln Almond proposed the Industrial Property
Remediation and Reuse Act, or the Rhode Island Brownfields bill, to
build on the early successes of our State program and provide more
tools to facilitate the clean up of contaminated sites and support
their return to beneficial use in the community. This bill was passed
into law with overwhelming support by the legislature and provides DEM
with the ability to enter into Settlement Agreements, which include
Covenants Not to Sue, with performing parties. While the law provides
specific relief from liability to bona fide perspective purchasers and
secured creditors, it also allows other performing parties, including
cooperative responsible parties, to enter Settlement Agreements. These
new tools prompted the clean up and redevelopment of 48 sites,
restoring 532 acres of contaminated property and creating or retaining
1010 jobs and $76.9 million in property and income tax annually. The
key aspect of this program improvement was the certainty and finality
that the law and the Settlement Agreements provided to performing
parties.
Further program improvements came in 1997 with the amendment of the
site remediation regulations to include a series of clean up standards
proportionate to the future use of properties. These amendments added
three options for a performing party to use to determine the end goal
of their clean up. The first option, or tier, involves a series of
tables for performing parties to use to look up the appropriate clean
up goals corresponding to the groundwater classification and future use
of the site. The second tier provides an accepted model where
performing parties could input unique, site specific information to
come up with a site-specific goal Finally, the third tier preserved the
traditional risk assessment option. The selection of the method is left
to the performing party.
The end result of these efforts is our existing program, which
provides us with all the regulatory tools needed to respond to proposed
projects, compel the investigation and remediation of sites, and
support redevelopment efforts involving Brownfields. These regulations,
however, strictly address the Department's reaction to issues presented
to us through either notification of contamination or other proposed
projects.
The need to support economic redevelopment in Rhode Island's urban,
and historically industrial, communities and initiate clean up
activities in these areas prompted Rhode Island's effort to seek a
Brownfields Demonstration Pilot grant from EPA in 1996. The pilot was
focused on a proactive approach, undertaken with many municipal and
economic development partners, to identify Brownfields sites, assess
their condition, estimate the costs of clean up, and support the
marketing of the sites for reuse. The project was an ecosystem based
approach to identifying vacant or underutilized sites along the
Blackstone and Woonasquatucket Rivers. Rhode Island was awarded a
$200,000 grant in 1997, which the State matched with an additional
$210,000. To date 54 baseline site assessments and 8 Remedial
Evaluation Reports (which include cost estimates for clean up) have
been completed at Brownfields sites in the pilot area, but perhaps more
importantly, a healthy dialog and productive working relationship has
been established between the economic development agencies, the
Department of Environmental Management and the municipalities.
In 1998, our proactive Brownfields efforts were supplemented by the
designation of Providence as a Brownfields Showcase Community. This
designation provided a higher level of involvement by EPA and several
other Federal agencies, most notably Housing and Urban Development, in
supporting the reuse of contaminated sites in Providence.
Recent efforts under the Brownfields Pilot and Showcase Community
projects have primarily been focused on supporting the investigation
and clean up of properties along the proposed route of the
Woonasquatucket River Greenway and bike path. The investigation and
remedial design activities have largely been completed but securing
funding for the remediation has proved to be a major problem. The
funding problem mainly is due to the fact that the properties of
concern, the former Lincoln Lace and Braid and the former Riverside
Mills properties, are designated for use as open space, bike path
areas, and other recreational fields and do not have a future income
stream to support a loan to fund remediation costs. The fact that
projects designated for future use for non-profit public purposes have
no current funding support for clean up costs has slowed progress on
this very important project.
We have leveraged our success and relationships developed under the
pilot and Showcase Community to approach other municipalities and
support their Brownfields redevelopment efforts across the State.
Recently, we have applied for funding to establish a statewide
revolving loan program to assist in the funding of remediation costs.
The evolution of our State program is in many ways similar to the
process other States have followed. Each State has adjusted their
approach somewhat to meet the needs and desires of their constituencies
and to strive for the most efficient and effective models based on
their individual circumstances. This has led to many innovative
approaches supporting the clean up of thousands of sites of all shapes
and sizes nationally.
Overall, we feel strongly that the Superfund program has evolved
from a strict, authoritarian and inflexible approach to clean up to a
more responsive and streamlined program. The emphasis on strictly
dealing with the ``worst of the worst'' sites has evolved into a
program focused on serious sites that have a multitude of logistical
challenges standing in the way of clean up. The program has also
evolved away from the duplication of effort and heavy handed Federal
supervision into a more cooperative joint approach between EPA and the
States that typically features complementary roles for each agency
working together toward a mutually determined clean up goal.
In summary, Superfund, the State Cleanup Programs, Brownfields
programs and Voluntary Cleanup programs all provide valuable tools to
achieve the flexibility needed to efficiently facilitate the clean up
of many types of contaminated properties. Flexibility will be critical
in responding to the next generation of sites that we are now just
beginning to see through new investigations and innovations supporting
Smart Growth, exploring the challenges and issues unique to our urban
environments, and broadening our perspective to look at issues in the
context of watershed planning and the assessments and decisionmaking
related to the Total Maximum Daily Load limits of pollutants that can
flow to our water bodies.
Program innovation has been occurring at the State level and should
not be dampened or discouraged.
The backbone of virtually all clean up programs is the Superfund
liability system and any adjustments to that core framework should be
very carefully evaluated to see the full effects of change, including
the changes on State programs that rely on that Federal framework.
Nonetheless, some parties merit relief including de minimus/de micromus
parties, prospective purchasers, municipalities, and downgradient
receptors. Furthermore, recognizing the finality of State decisions and
decoupling Federal involvement in Brownfields cases from the strict
requirements of the NCP should strengthen the Brownfields and VCP
programs.
In considering the options for Superfund reauthorization and
statutory improvements, please consider the following points:
The backbone of virtually all clean up programs is the
Superfund liability system and any adjustments to that core framework
should be very carefully evaluated to see the full effects of change,
including the impacts on State programs that rely on that Federal
framework.
Superfund, the State Cleanup Programs, Brownfields
programs and Voluntary Cleanup programs all provide valuable tools to
achieve the flexibility needed to efficiently facilitate the clean up
of many types of contaminated properties
Program innovation has been occurring at the State level
and should not be dampened or discouraged through the establishment of
Federal standards for ``acceptable'' State programs.
Some parties merit liability relief including de minimus/
de micromus parties, prospective purchasers, municipalities, and
downgradient receptors.
The finality of State clean up decisions should be
recognized.
Brownfields cases should be decoupled from the strict
requirements of the NCP, which we believe will strengthen the
Brownfields and VCP programs.
Projects designated for future use for non-profit public
purposes should be provided with funding support for clean up costs.
In closing, thank you for the opportunity to testify on the
Superfund program and the opportunity to provide the Rhode Island
perspective on the program.
______
RESPONSE OF TERRENCE GRAY TO ADDITIONAL QUESTIONS FROM SENATOR SMITH
Questions 1a and b. Mr. Gray, your testimony echoed the sentiments
of Mr. Jones and Mr. Varney in the need for relief for small volume
contributors, prospective purchasers, and municipalities as well as the
need to recognize the finality of State decisions and the decoupling of
Federal involvement in Brownfields cases from the strict requirements
of the NCP. There have been various levels of Administrative reform
within EPA to address many of these issues. Do you think the
Administrative reforms are sufficient to address your concerns with the
Superfund program or is there a need for legislation as well? How about
the issue of finality in State decisions?
Response. I believe that EPA should be recognized and complimented
for the administrative reforms that it has implemented. These reforms
have made the program much more responsive and streamlined. As I stated
in my written testimony, I believe the emphasis on strictly dealing
with the ``worst of the worst'' sites has evolved into a more focused
approach to address serious sites that have a multitude of logistical
challenges standing in the way of clean up. The program has also
evolved away from the duplication of effort and heavy handed Federal
supervision into a more cooperative joint approach between EPA and the
States that typically features complementary roles for each agency
working together toward a mutually determined clean up goal. However, I
do not feel that these administrative reforms cure all the issues with
the Superfund program.
With respect to the remediation and redevelopment of Brownfields
sites, administrative reforms have greatly improved the communication
and coordination between the Rhode Island Department of Environmental
Management and EPA but, primarily due to the limitations in the
existing statute, have not been able to address all of the concerns of
some of the developers and stakeholders we regularly interact with. The
finality of State decisions is an issue that is still raised by
developers and prospective purchasers. EPA and DEM have attempted to
provide assurances to developers considering projects on contaminated
sites by entering into a Memorandum of Agreement related to our State
Voluntary Cleanup Program. EPA has also provided ``comfort letters'' to
developers for reassurance. However, neither of these documents
provides the ultimate certainty, or finality, that some developers and
their financial backers require. I believe that statutory recognition
of the finality of State cleanup decisions, with appropriate safeguards
that are not overly prescriptive or dampen State innovations, will
definitively address these concerns.
EPA's establishment of Brownfields demonstration pilot grants,
targeted site assessments and the Brownfields revolving loan program
have all been tremendously helpful in promoting, and supporting, the
investigation, cleanup and reuse of contaminated properties. However,
the potential application of the requirements of the National
Contingency Plan to Brownfields sites receiving Federal assistance for
either investigation or cleanup has been an issue for us.
Two particular concerns have been significant. First, the fact that
investigations and cleanup decisions must meet the requirements of the
National Contingency Plan when revolving loan funds are used has
unnecessarily complicated the startup of the Rhode Island loan program.
This requirement has led to a more direct involvement from our agency,
based on our familiarity with the NCP, and will lead to a more
comprehensive review of the remedial decisionmaking process to ensure
consistency with the Federal model. We do not believe that this
increased level of review is necessary on most Brownfields sites.
Second, the concept of cost recovery of Federal funds used in the
redevelopment of Brownfields sites is of concern to us. We believe that
the use of these funds to support Brownfields redevelopment should be
looked at as an investment in the restoration of these properties for
the public good and should not be seen as strictly cost-recoverable.
Although neither EPA nor the Department of Justice have sought recovery
of funds used to support Brownfields redevelopment in Rhode Island to
date, we are concerned about this potential in the future, particularly
in potential instances of default in the revolving loan program. We
believe the statute should provide clear criteria on when costs should
be recovered and when Federal funding should be considered an
investment for the public benefit.
______
RESPONSE OF TERRENCE GRAY TO ADDITIONAL QUESTION FROM
SENATOR LAUTENBERG
Question 1. I understand that you have a number of Brownfields
sites in the State of Rhode Island. How many Brownfields sites have
been identified in Rhode Island? Of these, how many assessments and
cleanups have been conducted, and when? Can you describe the types of
redevelopment and reuses at these sites?
Response. The investigation, remediation and reuse of Brownfields
sites has been a critical focus area for the State of Rhode Island
since the establishment of our program in 1993. We approach Brownfields
sites in two ways. The first approach is reactive in nature and
supports projects brought to our attention by prospective purchasers or
developers. Since the initiation of our program, a total of 48 sites
have been assessed, cleaned up and redeveloped, restoring 532 acres of
contaminated property and creating or retaining 1010 jobs and $76.9
million in property and income tax annually.
The second approach is proactive in nature and involves the
identification, evaluation and redevelopment of Brownfield properties
by the Department of Environmental Management and our partners, which
include municipal governments, non-profit organizations and economic
development agencies. This approach, which is actively supported by the
Environmental Protection Agency through a Brownfields Demonstration
Pilot grant and Showcase Community designation, has resulted in the
completion of 54 baseline site assessments and 8 Remedial Evaluation
Reports (which include cost estimates for clean up).
Brownfields properties have been brought back to a wide range of
beneficial uses through our program. One of our first sites, on the
waterfront in historic Newport, Rhode Island, was redeveloped as luxury
time-share condominiums. Another site on the Newport waterfront was
redeveloped by the non-profit International Yacht Restoration School as
their main campus. Several other sites have been brought back to use
for manufacturing purposes, including companies that make display
cases, metal fasteners, and fixtures. Finally, many sites have been
brought back to use as commercial facilities, including a campus for an
insurance company, supermarkets, banking support facilities, and
convenience stores. Ongoing priority projects include the restoration
of an abandoned chemical distribution facility property for
construction of a new inter-modal train station and the restoration of
a former steel mill on the waterfront in an urban neighborhood for use
as light manufacturing.
An ongoing challenge facing our agency is supporting the reuse of
Brownfields sites for non-profit public uses, such as schools, athletic
and recreational fields and urban bikeways and greenways. Without a
future income stream, the cleanup costs on these properties are very
difficult to address. This continues to be a focus in our pilot project
and Showcase Community efforts.
__________
STATEMENT OF EUGENE MARTIN-LEFF, ASSISTANT ATTORNEY GENERAL, NEW YORK
STATE ATTORNEYS GENERAL OFFICE, ON BEHALF OF THE NATIONAL ASSOCIATION
OF ATTORNEYS GENERAL
My name is Eugene Martin-Leff, and I am a Section Chief in the
Environmental Protection Bureau in the office of New York Attorney
General Eliot Spitzer. I am appearing today on behalf of Attorney
General Spitzer and on behalf of the National Association of Attorneys
General (NAAG). I have supervised and litigated cost-recovery actions
on behalf of the State under the Comprehensive Environmental Response,
Compensation and Liability Act of 1980 (CERCLA) at both National
Priorities List (NPL) and non-NPL sites in New York since 1983. I was
the lead counsel for the State of New York in litigation relating to
Love Canal. Last year, I represented Attorney General Spitzer in
Governor Pataki's State Superfund and Brownfields Working Group.
We very much appreciate the opportunity to appear before this
Subcommittee on cleanup activities under the Superfund program. The
State Attorneys General have a major interest in the future of the
Superfund program. As chief legal officers of the respective states,
the Attorneys General enforce State and Federal laws in their states.
They help protect the public health and the environment and natural
resources in their respective states. Because many steps in the
Superfund cleanup process necessarily involve legal issues, the
Attorneys General and their staffs often are called upon to advise
State agencies--both response agencies and natural resource trustee
agencies--on how the law should be interpreted and implemented to
achieve the desired cleanup or restoration goals. We often are also
responsible for negotiating cleanup and natural resource damages
settlements, and when a settlement cannot be reached, it is our
responsibility to commence and litigate an enforcement action. We also
defend State agencies and authorities when Superfund claims are made by
the United States or private parties against them.
NAAG also has been deeply involved in the Superfund reauthorization
process for many years. At its Summer meeting on June 22-26, 1997, the
sole resolution adopted by the State Attorneys General addressed
Superfund Reauthorization; a copy of this bipartisan Resolution is
attached. The NAAG Resolution arose from the recognition on the part of
the State Attorneys General of the critical importance of the Superfund
program in assuring protection of public health and the environment
from releases of hazardous substances at thousands of sites across the
country. The Attorneys General want to make the tasks of cleanup and
protecting the public less complicated and more efficient, and to
reduce the amount of litigation and the attendant costs that result.
In New York, our office has been litigating Superfund cases since
1981. A major impetus for the passage of CERCLA was the discovery of
the infamous Love Canal and other Hooker Chemical Company sites in
Niagara Falls, New York. CERCLA has provided both the Federal and State
governments essential tools to address the dangers posed by those and
thousands of other sites in New York and throughout the country.
IMPORTANCE OF COST-RECOVERY LIABILITY
The ability to recover costs through CERCLA's liability provisions
is crucial to our cleanup program in New York. About 10 percent of the
sites on the New York State Registry of inactive hazardous waste
disposal sites are NPL-listed, federally funded sites. Even though
these sites are typically more expensive to clean up than the average
contaminated site, Federal money constitutes a relatively small part
(about 13 percent) of all cleanup funding in New York, compared to
private cleanup funding (about 66 percent) and State funding (about 20
percent). Most states have had similar results. On the Federal level,
private cleanup funding has resulted in the saving of some $10 billion
of public money, because 70 percent of all remedial actions at Federal
Superfund sites are being performed by responsible parties.
For this reason, the ability to recover costs through CERCLA's
liability provisions is even more important in our opinion than direct
cleanup funding under CERCLA. Potentially responsible parties (PRPs)
now know where they stand under CERCLA, and most see the wisdom of
settling their liability with the government. This connection between
enforcement and the generation of cleanup funds is vital to the overall
hazardous waste cleanup program in this country.
The prospect of NPL listing and Federal funding, as well as State
funding of cleanup costs, is essential to setting the cost-recovery
mechanism into motion. But Congress has done far more than make money
available for cleanups. It has leveraged its money into far greater
matching private dollars by creating and preserving liability for cost
recovery.
Clear potential cost-recovery liability is the chief reason for
private cleanup funding. Strict liability eliminates litigable issues
and encourages voluntary cleanups. Case law established over nearly 20
years has added to the predictability of the outcome in litigation. In
contrast, every change in the law carries with it a loss of
predictability, with potential cleanup funding consequences. If CERCLA
enforcement is undercut by amendment, the entire picture could
radically change, with dire consequences for the 66 percent of cleanup
costs in New York that is funded by private parties.
CERCLA enforcement has another crucial role in New York and other
states. In our State there is no right under State statutory law to
cleanup-cost recovery without first going through an administrative
hearing. Our administrative process, which requires a full evidentiary
hearing before liability can be established, is rarely used. We and the
other states depend on our express right to sue in Federal court under
CERCLA. Natural resources damages enforcement in NYS is also based
primarily on CERCLA.
It is also worth mentioning that CERCLA liability standards are
right now being used as the model for proposed legislation in New York
State. There is wide agreement among stakeholders in New York on the
fairness of the existing defenses under CERCLA, i.e., the third-party
defense, the innocent landowner defense, the lender exemption, and the
de minimis settlement policy. It would be ironic indeed if New York and
other states adopted CERCLA liability rules this year and then Congress
made wholesale changes in CERCLA.
Nevertheless, there is a need for some liability reforms in CERCLA.
NAAG's Resolution regarding CERCLA reauthorization called for
clarification of the waiver of sovereign immunity and for the transfer
of the regulatory authority of the Environmental Protection Agency
(EPA) at Federal facilities to the states. On July 26, 1999, forty-one
Attorneys General reiterated the need for this clarification in a
letter to the Senate Armed Services Committee, a copy of which is
attached. NAAG strongly urges the adoption of language that is
contained in the last session's DeGette/Norwood bill, as it represents
the compromise reached between states and Federal agencies in 1994, and
would clarify the waiver without disrupting the status quo with regard
to the issue of dual regulation at NPL sites.
NAAG also supports changes to the long-standing ``Innocent
Governmental Entities'' exception to liability. The statute should be
broad enough to address current abuses where, for example, states are
subject to counterclaims based on sovereign ownership interests in
groundwater, stream and river beds and other natural resources.
NAAG also supports reasonable limitations on liability for disposal
of municipal solid waste. In addition, municipalities should not be
unfairly burdened with cleanup costs resulting from their ownership or
operation of landfills.
IMPORTANCE OF THOROUGH CLEANUPS
On the State level, Attorney General Spitzer is participating in
the active public debate on Brownfields. Reforms to facilitate
brownfield revitalization are clearly desirable--on that everyone
agrees. Future use of contaminated sites must certainly be considered,
and institutional controls must supplement excavation remedies. But, as
usual, the devil is in the details.
Cleanup levels must not be set simplistically based on the current
use of the site, or a developer's projected use. As required currently
by EPA, future use must be carefully determined by examining current
use, projected immediate use and much more; not only existing zoning
laws and formal municipal plans should be consulted, but also the
proximity of the site to residential areas, development trends in the
area, local community views, environmental justice concerns and other
relevant information. Indeed, in New York, we believe that where the
site is adjacent to residences, there should be a presumption of an
eventual residential use and consequently a residential level cleanup,
and a developer should have the burden to convince the appropriate
environmental agency why a less thorough cleanup is most appropriate
under the remedy selection criteria.
Similarly, institutional controls must not be seen as panaceas.
Some institutional controls that are necessary when industrial level
cleanups are done are less reliable than others. For example, a deed
notice that soil beneath a building is contaminated and that the
building should not be removed is inherently suspect over the long
term, because a building has a far shorter life than that of most
hazardous substances. The building will eventually deteriorate and even
collapse, exposing the underlying contamination. EPA and State
environmental agencies should consider the long-term effectiveness of
any brownfields cleanup, including the reliability of institutional
controls, along with cost and other relevant factors and choose the
remedy that best meets all the appropriate criteria.
Where government must perform the cleanup and sue for cost
recovery, it is important that litigation over the amount of costs
recoverable be streamlined. As you know, CERCLA presently limits the
judicial review of EPA remedies to the administrative record compiled
by the agency. The remedies selected by states should likewise be
reviewed on the administrative record compiled by the State counterpart
of EPA, rather than through a costly, time-consuming trial.
Another necessary amendment to treat State and Federal
environmental agencies the same would authorize the Federal Superfund
to pay State natural resource trustees' assessment costs.
CONCLUSION
The State Attorneys General strongly support a fair and effective
cleanup program. The public expects government at all levels to protect
the public health and the environment from facilities that are
releasing hazardous substances, and they expect the parties responsible
for those threats to pay their fair share. Whatever refinements are
made in the current liability and cleanup rules must be true to these
overarching objectives.
______
RESPONSES OF EUGENE MARTIN-LEFF TO ADDITIONAL QUESTIONS FROM
SENATOR SMITH
Question 1a. In the testimony submitted, NAAG stated that
refinements made in the current liability scheme and cleanup rules of
Superfund must be protective of the public health and environment as
well as ensure that parties be responsible for paying their fair share.
The testimony also indicates that stakeholders in New York agree that
the existing defenses available in Superfund are fair. Are these two
sentiments inconsistent?
Response. NAAG believes the two points are consistent because ``the
core provisions of the current CERCLA liability system . . . are
essential to assure the effectiveness of the cleanup program'' (NAAG
Resolution on Superfund Reauthorization of June 22-26, 1997, previously
distributed to the Committee, at 3), but relatively minor refinements
would improve the liability scheme. Among these are ``reasonable
limitations on liability for disposal of municipal solid waste'' and
``an exemption from liability for `de minimis' parties that sent truly
minuscule quantities of waste to a site.'' (Id.) However, we consider
the existing defenses available in Superfund, including the third-party
defense, the innocent purchaser defense, and the lender liability
exemption, to be fair. We also would note that a liability scheme that
placed a heavy burden on the government instead of responsible parties
would not be fair to taxpayers.
Question 1b. If the liability scheme were fair and the existing
defenses sufficient, why has the Environmental Protection Agency
instituted numerous Administrative reforms to provide additional
protections for small volume contributors, a municipal solid waste
policy, prospective purchaser agreements and orphan share funding?
Response. Administrative reforms that improve the operation of EPA
programs, such as Superfund, should always be welcome. These reforms,
in our opinion, do not suggest a need for substantial legislative
action with respect to liability. First, it is noteworthy that all of
the listed administrative reforms were lawfully adopted pursuant to the
current statute, which suggests that major revision is not necessary to
serve the objectives of those reforms. Second, none of them is
inconsistent with the core liability and defense provisions. For
example, the small volume contributor reform was authorized by the
Superfund Amendments and Reauthorization Act of 1986 (specifically,
CERCLA Sec. 122(g)). Third, prospective purchasers are, of course, not
potentially responsible parties until they consummate the purchase of a
facility; it was entirely consistent with CERCLA as written to offer
inducements to genuine innocent parties to provide cleanup funds or
other public benefits in exchange for a release from future potential
liability under CERCLA. Finally, the EPA orphan share policy was
reasonably designed primarily as an inducement to settle litigation and
encourage potentially responsible parties to perform cleanups. (See
U.S.E.P.A., Interim Guidance on Orphan Share Compensation for Settlors
of Remedial Design/Remedial Action and Non-Time-Critical Removals dated
June 4, 1996)
Question 1c. Do you think that the responsible parties who are
subject to joint and several liability would agree that this is a fair
system?
Response. Naturally, many parties subjected to large monetary
liability can be expected to question the fairness of the liability
system. However, based upon views expressed by the Senators attending
the hearing on March 21, 2000, it appears that the opinions of
responsible parties vary on this point. In practice, jointly and
severally liable parties are able to substantially reduce their
ultimate financial burdens by obtaining contribution from other liable
parties, often by settlement. Also, de minimis and de micromis parties
are generally relieved entirely of its effects.
Finally, Justice Breyer recently observed in Eastern Enterprises v.
Apfel, 524 U.S. 498, 536 (1998) (dissenting but writing for a majority
of the Court on a non-CERCLA Takings Clause issue), that CERCLA was a
statute that ``imposed liability . . . to prevent degradation of a
natural resource, upon those who have used and benefited from it.''
Similarly, it was stated in United States v. Northeastern
Pharmaceutical & Chemical Co., Inc., 810 F.2d 726, 734 (8th Cir. 1986)
(holding that retroactive application of CERCLA does not violate due
process), that ``. . . Congress acted in a rational manner in imposing
liability [under CERCLA] for the cost of cleaning up such sites upon
those parties who created and profited from the sites and upon the
chemical industry as a whole. . . .'' A choice must be made between a
liability scheme that places the burdens relating to the shares of non-
parties on such liable defendants or on governmental plaintiffs (and
ultimately the taxpayers). The common law, like CERCLA, concluded long
ago that the fairer outcome was to place it on liable parties rather
than plaintiffs.
Question 2a. NAAG has outlined the importance of the ability to
recover costs through CERCLA's liability provisions for the State of
New York. NAAG has gone so far as to state, ``if CERCLA enforcement is
undercut by amendment, the entire picture could radically change, with
dire consequences for 66 percent of cleanup costs in New York that is
funded by private parties.'' Is it NAAG's position that the ability to
obtain settlements which provide adequate funding for cleanups is more
important than fairness in liability allocation?
Response. We believe that both adequate funding for cleanups and
fairness in liability allocation are important and achievable. However,
if adequate funding is not achieved largely through settlement, an
increase in taxes would probably be necessary to make up for any
shortfall.
Question 2b. Shouldn't fairness be of paramount concern?
Response. The courts have consistently recognized that the
``essential purpose'' of CERCLA is to make those responsible for
problems caused by the disposal of chemicals bear the costs and
responsibility for remedying the harmful conditions they created. See,
e.g., United States v. Occidental Chemical Corp., 200 F.3d 143, 147 (3d
Cir. 1999). However, it is unnecessary, in our opinion, to choose which
concern is ``paramount'' over the other. Also, as discussed above, a
system that shifts costs from responsible parties to taxpayers or
leaves communities with sites that have not been cleaned up would be
unfair to taxpayers and those communities.
Question 3a. NAAG has been involved in the Superfund
reauthorization process for years. At a June 22-26, 1997 meeting, a
resolution was adopted by the State Attorneys General that addressed
Superfund Reauthorization. That resolution clearly indicates that State
cleanup programs are working and yet State resources are not being used
effectively. The resolution supports strengthening ``State voluntary
cleanup and brownfield programs by providing technical and financial
assistance to those programs, and by giving appropriate legal finality
to clean up decisions of qualified State voluntary cleanup programs and
brownfield redevelopment programs.'' Does NAAG continue to support
these provisions?
Response. Yes, as was stated on March 21, 2000, NAAG believes that
finality that is appropriate and not absolute, e.g., subject to limited
reopeners, is important to encourage volunteers to develop brownfields.
For example, in New York Governor George Pataki has submitted a
brownfields bill that would authorize the reopening of brownfields
releases for any of six grounds, including, inter alia, the receipt of
information which indicates that the remediation performed is not
protective of public health or the environment for the anticipated use
of the site. Other states obviously may take different approaches, but
in New York it is widely believed that such reopeners will not prevent
developers from stepping forward to enter into brownfields agreements.
__________
NATIONAL ASSOCIATION OF ATTORNEYS GENERAL
ADOPTED
SUMMER MEETING
JUNE 22-26, 1997 JACKSON HOLE, WYOMING
RESOLUTION
SUPERFUND REAUTHORIZATION
Whereas, the Attorney General of the States have significant
responsibilities in the implementation and enforcement of the
Comprehensive Environmental Response, Compensation, and Liability Act
(CERCLA) and analogous State laws, including advising client agencies
on implementation of the cleanup and natural resource damage programs,
commencing enforcement actions when necessary to compel those
responsible for environmental contamination to take cleanup actions and
to reimburse the states for publicly funded cleanup, and advising and
defending client agencies that are potentially liable under CERCLA;
Whereas, the Superfund programs implemented under CERCLA and
analogous State laws are of critical importance to assure protection of
public health and the environment from uncontrolled releases of
hazardous substances at thousands of sites throughout the country;
Whereas, Congress is currently considering legislation to amend and
reauthorize CERCLA;
Whereas, to avoid unnecessary litigation and transaction costs over
the interpretation of new terms and new provisions, amendments to
CERCLA should be simple, straightforward, and concise;
Whereas, the National Association of Attorneys General has adopted
resolutions in March 1987, July 1993, and March 1994 on the amendment
of CERCLA;
STATE ROLE
Whereas, many State cleanup programs have proven effective in
achieving cleanup, yet the CERCLA program fails to use State resources
effectively;
Whereas, State programs to encourage the cleanup and redevelopment
of underutilized ``brownfields'' are making important strides in
improving the health, environment, and economic prospects of
communities by providing streamlined cleanup and resolution of
liability issues for new owners, developers, and lenders;
FEDERAL FACILITIES
Whereas, Federal agencies should be subject to the same liability
and cleanup standards as private parties, yet Federal agencies often
fail to comply with State and Federal law;
LIABILITY
Whereas, the core liability provisions of CERCLA, and analogous
liability laws which have been enacted by the majority of the states,
are an essential part of a successful cleanup program, by providing
incentives for early cleanup settlements, and promoting pollution
prevention, improved management of hazardous wastes, and voluntary
cleanups incident to property transfer and redevelopment;
Whereas, the current CERCLA liability scheme has in some instances
produced expensive litigation, excessive transaction costs, and unfair
imposition of liability;
REMEDY SELECTION
Whereas, constructive amendments to CERCLA are appropriate to
streamline the process of selecting remedial actions and to reduce
litigation over remedy decisions;
NATURAL RESOURCE DAMAGES
Whereas, constructive amendments to CERCLA are appropriate to make
it less complicated for natural resource trustees to assess damages and
to restore injured natural resources, and to reduce the amount of
litigation that may result in implementing the natural resource damage
program.
Now, Therefore, be it Resolved, That the National Association of
Attorneys General urges Congress to enact CERCLA reauthorization
legislation that:
A. State Role
1. Provides for delegation of the CERCLA program to qualified
states, and for EPA authorization of qualified State programs, with
maximum flexibility;
2. Reaffirms that CERCLA does not preempt State law;
3. Ensures that states are not assigned a burdensome proportion of
the cost of operation and maintenance of remedial actions and in no
event to exceed 10 percent;
4. Clarifies that in any legal action under CERCLA, response
actions selected by a State shall be reviewed on the administrative
record and shall be upheld unless found to be arbitrary and capricious
or otherwise not in accordance with law;
B. Federal Facilities
5. Provides for State oversight of response actions at Federal
facilities, including removal actions.
6. Provides a clear and unambiguous waiver of Federal sovereign
immunity from actions under State or Federal law;
C. Liability
7. Provides a liability system that: (a) includes the core
provisions of the current CERCLA liability system that are essential to
assure the effectiveness of he cleanup program; (b) provides incentives
for prompt and efficient cleanups, early cleanup settlements, pollution
prevention, and responsible waste management; (c) addresses the need to
encourage more settlements discourage excessive litigation, reduce
transaction costs, and apply cleanup liability more fairly and
equitably, especially where small contributors and municipal waste
landfills are involved; and (d) assures adequate funding for cleanup
and avoids unfunded State mandates;
8. Provides reasonable limitations on liability for disposal of
municipal solid waste;
9. Provides an exemption from liability for ``de micromis'' parties
that sent truly minuscule quantities of waste to a site;
10. Encourages early settlements with de minimis parties that sent
minimal quantities of waste to a site;
D. Remedy Selection
11. Provides for the consideration of future land use in selecting
remedial actions, provided that future land use is not the controlling
factor, and provided that remedial actions based on future land use are
conditioned on appropriate, enforceable institutional controls;
12. Retains the requirement that remedial actions attain, at a
minimum, applicable State and Federal standards;
13. Retains the prohibition on pre-enforcement review of remedy
decisions;
14. Provides that cost-effectiveness should be considered, among
other factors, in remedy selection;
15. Allows EPA or the State agency to determine whether to reopen
final records of decision for remedial actions, as under current law;
E. Natural Resource Damages
16. Clarifies that in any legal action, restoration decisions of a
natural resource trustee shall be reviewed on the administrative record
and shall be upheld unless found to be arbitrary and capricious or
otherwise not in accordance with law, without precluding record review
on other issues;
17. Provides that claims for damages for injuries to natural
resources must be brought within 3 years of that completion of a damage
assessment;
18. Allows Superfundmonies to be used for assessments of damages
resulting from injures to natural resources and for efforts to restore
injured natural resources,
19. Retains the ability of trustees to recover damages based on any
reliable assessment methodology;
20. Does not revise the cap on liability for natural resource
damages so as to reduce potential damage recoveries;
21. Clarifies that trustees are entitled to recover legal,
enforcement, and oversight costs;
F. Brownfields
22. Strengthens State voluntary cleanup and brownfields
redevelopment programs by providing technical and financial assistance
to those programs, and by giving appropriate legal finality to cleanup
decisions of qualified State voluntary cleanup programs and brownfield
redevelopment programs;
G. Miscellaneous
23. Allows EPA to continue to list new sites on the National
Priorities List based upon threats to health and the environment, with
the concurrence of the State in which the site is located.
Be it Further Resolved, That the CERCLA Work Group, in consultation
with and with approval of the Environmental Legislative Subcommittee of
the Environment Committee, and in consultation with NAAG'S officers is
authorized to develop specific positions related to the reauthorization
of CERCLA consistent with this resolution; and the Environmental
Legislative Subcommittee, or their designees, with the assistance of
the NAAG staff and the CERCLA Work Group, are further authorized to
represent NAAG's position before Congress and to Federal agencies
involved in reauthorization decisions consistent with this resolution
and to provide responses to requests from Federal agencies and
congressional members and staff for information, technical assistance,
and comments deriving from the experience of the State attorneys
general with environmental cleanup programs in their states.
Be it Further Resolved, That NAAG directs its Executive Director
and General Counsel to send this resolution to the appropriate
Congressional Committees and Subcommittees and to the appropriate
Federal agencies.
______
National Association of Attorneys,
Washington, DC, July 26, 1999.
Hon. John Warner, Chairman,
Senate Armed Services Committee,
U.S. Senate,
Washington, DC.
Hon. Carl Levin, Ranking Member,
Senate Armed Services Committee,
U.S. Senate,
Washington, DC.
RE: Response to Department of Defense and Department of Energy Report
on Clarification of CERCLA Waiver of Sovereign Immunity
Dear Chairman Warner and Senator Levin: Enclosed, please find a copy of
the response of the National Association of Attorneys General (HAAG) to
the February 1999 report of the Departments of Defense (DOD) and Energy
(DOE) regarding the potential impacts of a proposed amendment to the
waiver of Federal sovereign immunity under the Comprehensive
Environmental Response, Compensation and Liability Act (CERCLA).
As you know, the States have long supported a waiver of Federal
sovereign immunity under CERCLA, and were instrumental in achieving a
waiver of Federal sovereign immunity under the Resource Conservation
and Recovery Act in 1992, and more recently under the Safe Drinking
Water Act Amendments of 1996. During the previous Congress, your
committee, in response to a bi-partisan amendment to S. 8, the
``Superfund Cleanup Acceleration Act,'' waiving Federal sovereign
immunity under CERCLA, directed DOD and DOE to submit a report
addressing ``(1) any additional costs that might be incurred . . . as a
result of the proposed amendment; and (2) any impact that the amendment
may have on the cleanup of Department of Defense and . . . Energy
sites.''
In February 1999, DOD and DOE submitted their Report to your
Committee. The Report predicts negative impacts from passage of the
amendment and further finds that the current waiver in CERCLA is
working and therefore does not need to be clarified. As the attached
response indicates, we disagree with these conclusions, which we
believe are not based on a sound understanding of the current law and
practice of Federal agencies, the well-established record of sensible
regulation by states, or reasonable, supportable predictions of
potential impacts.
We thank you for considering our views on this subject, and look
forward to working with Congress in the future on this matter of
critical importance to the States.
Sincerely,
Ken Salazar, Attorney General of Colorado; Bruce M.
Botelho, Attorney General of Alaska;
Richard Blumenthal, Attorney General of
Connecticut; M. Jane Brady, Attorney
General of Delaware; Robert Rigsby,
District of Columbia Corporation Counsel;
Thurbert Baker, Attorney General of
Georgia; John F. Tarantino, Attorney
General of Guam; Alan G. Lance, Attorney
General of Idaho; Jim Ryan, Attorney
General of Illinois; Andrew Ketterer,
Attorney General of Maine; J. Joseph
Curran, Jr., Attorney General of Maryland;
Tom Reilly, Attorney General of
Massachusetts; Jennifer Granholm, Attorney
General of Michigan; Mike Moore, Attorney
General of Mississippi; Jeremiah W. Nixon,
Attorney General of Missouri; Joseph P.
Mazurek, Attorney General of Montana; Don
Stenberg, Attorney General of Nebraska;
Frankie Sue Del Papa, Attorney General of
Nevada; Philip T. McLaughlin, Attorney
General of New Hampshire; John F. Farmer,
Jr., Attorney General of New Jersey; Eliot
Spitzer, Attorney General of New York;
Michael F. Easley, Attorney General of
North Carolina; Maya B. Kara, Attorney
General of Northern Mariana Islands; Betty
D. Montgomery, Attorney General of Ohio;
Drew Edmondson, Attorney General of
Oklahoma; Hardy Myers, Attorney General of
Oregon; Sheldon Whitehouse, Attorney
General of Rhode Island; Mark Barnett,
Attorney General of South Dakota; Paul
Summers, Attorney General of Tennessee;
John Cornyn, Attorney General of Texas; Jan
Graham, Attorney General of Utah; William
H. Sorrell, Attorney General of Vermont;
Christine O. Gregoire, Attorney General of
Washington; Gay Woohhouse, Attorney General
of Wyoming; Earl I. Arzai, Attorney General
of Hawaii; Bill Lockyer, Attorney General
of California; Patricia A. Madrid, Attorney
General of New Mexico; Heidi Heitkamp,
Attorney General of North Dakota; Robert A.
Butterworth, Attorney General of Florida;
Janet Napolitano, Attorney General of
Arizona; James E. Doyle, Attorney General
of Wisconsin.
__________
STATEMENT OF SHERRI W. GOODMAN, DEPUTY UNDER SECRETARY OF DEFENSE
(ENVIRONMENTAL SECURITY)
INTRODUCTION
The Department of Defense requests that this statement be entered
into the record for the March 21, 2000 Superfund Hearing before the
Subcommittee on Superfund, Waste Control and Risk Assessment of the
Committee on Environment and Public Works. The Department of Defense
would like to describe its progress under the Comprehensive
Environmental Response, Compensation and Liability Act (CERCLA) in
cleaning up contamination at its installations and other properties. In
the last 10 years we have worked with Congress and our stakeholders,
including the Environmental Protection Agency, Department of Justice,
states and citizens, to clean up sites using a process which
establishes and involves the public in the decisionmaking process. The
Department of Defense supports the Administration's position that
comprehensive legislative proposals could seriously undermine the
current progress of the program and could delay cleanups by creating
uncertainty and litigation.
DOD PROGRESS
DoD is making steady progress cleaning up its sites under the
environmental restoration program. We have invested nearly $20.5
billion since 1984 in 27,945 sites at 1,733 active and Base Realignment
and Closure (BRAC) installations and Formerly Used Defense Sites
(FUDS). One hundred and fifty of those installations are on the
Environmental Protection Agencies National Priorities List. At the end
of Fiscal Year 1999, 95 per cent of the Department of Defense's 27,945
sites are actively being addressed as indicated below:
PROGRESS UNDERWAY
Investigations: 22 percent
Cleanup: 8 percent
Response complete: 62 percent
Post-Response Complete Monitoring: 3 percent
Each year, the Department of Defense measures the number of sites
in the investigation, cleanup, and response complete categories. By
looking at the number of sites in these categories, the Department of
Defense can determine its progress toward cleaning up sites. The
installations categorize all sites undergoing investigation and cleanup
as ``sites in progress.'' Within the ``sites in progress category,'' an
important milestone is reaching the ``remedy in place'' (RIP). At sites
categorized as RIP, construction of the remedy is complete and we are
ready to begin operation. When all intended studies and cleanup
activities at a site are complete and the site meets its remedial
objective, the site is in ``Response Complete.'' When the regulator at
either State or Federal level agrees that all action is complete, the
site is placed in the site closeout category.
The pipeline diagram below illustrates the Department's progress at
the end of 1999.
Of the 17,307 sites in the response complete category, 11,739 of
these sites were placed in this category after the investigation phase.
This is significant because it demonstrates the importance of a
thorough investigation and removal action, if required. A total of
2,948 sites reached response complete by finishing the remedial design/
remedial action phases.
One of the Department's goals is to have remedies in place or
response complete for all sites on our active installations by 2014.
With Congress's continued support and stable funding, we believe we can
reach this goal.
In 1999 the number of sites in response complete totaled 17,307,
this is of key significance because it represents an almost 100 per
cent increase in response complete from the 8,637 sites reported in
1992. This indicates that Department of Defense is effectively
addressing sites through the restoration program. Overall, 62 percent
of the sites in the environmental restoration program have reached
Response Complete, a 4 percent increase since Fiscal Year 1998,
indicating Department of Defense's continued progress toward site
cleanup goals. In each of the last 2 years, the Department of Defense
moved approximately 1,000 sites into the response complete category.
As mentioned earlier, the Department of Defense's ultimate
objective is to finish all restoration activities and closeout all
sites at all of our installations. For this reason, the Department of
Defense also measures its progress in reaching remedy in place and
response complete at the installation level. It is not enough to close
out sites; we want to say that entire installations are clean.
Installations receive the remedy in place designation when all sites at
the installation reach the remedy in place milestone. Similarly, when
all sites at an installation achieve response complete status, the
entire installation reaches response complete. At the end of fiscal
year 1999, the Department of Defense had remedies in place or response
complete at almost 60 percent of active installations and formerly used
defense sites properties and over 40 percent of base realignment and
closure installations.
FUNDING DOD'S RESTORATION WORK
In the 1984, Congress established a separate account to fund the
Department of Defense's restoration work. The process of obtaining this
funding spans several years and requires careful long-range planning.
The Department must plan its budget needs well in advance to ensure
that sufficient funding for site restoration is available in a given
fiscal year. Many factors influence cleanup funding, including changing
priorities in the cleanup process, identification of new sites, policy
initiatives, and in some cases, changes in national security policy and
priorities. The Department of Defense forecasts specific restoration
activities several years in advance to prepare each budget the
President submits to Congress.
The Military Services and Agencies are responsible for allocating
funds to subordinate units for program execution. The Office of the
Secretary of Defense oversees the program, including expenditures of
funds by the Military Services and Agencies. The Department of Defense
relies on stable funding from Congress to plan effectively its
restoration activities, and then to carry out its plans.
Currently the Department is spending about $2 billion a year on the
active and base realignment and closure installations in the
environmental restoration program. Approximately 63 per cent of
environmental restoration funding is spent on cleanup, 24 per cent on
investigation and 12 per cent on program management support.
DEPARTMENT OF DEFENSE AUTHORITIES
The Department's environmental cleanup mission focuses on cleaning
up contamination at operational installations, closed installations,
and formerly used defense sites. The Department of Defense's formal
environmental cleanup efforts began in 1975, under the Army's
Installation Restoration Program. Over time, environmental laws and
regulations required more systematic and far-ranging environmental
cleanup efforts. In 1980, Congress passed the Comprehensive
Environmental Response, Compensation and Liability Act, the primary
driver for our cleanup program.
The Comprehensive Environmental Response, Compensation and
Liability Act, commonly referred to as Superfund, authorized Federal
agencies to respond to the release or substantial threat of release,
into the environment of hazardous substances, or to pollutants or
contaminants which may present an imminent and substantial danger to
public health or welfare. The Comprehensive Environmental Response,
Compensation and Liability Act authorized the creation of a trust fund
for the Environmental Protection Agency's use in cleaning up emergency
and long-term waste problems. However, the trust fund is not generally
available for remedial actions at federally owned facilities.
In 1986, the Superfund Amendments and Reauthorization Act (SARA),
Public Law 99-499) reauthorized the trust fund and significantly
amended the authorities and requirements of the Comprehensive
Environmental Response, Compensation and Liability Act. The Superfund
Amendments and Reauthorization Act created the Comprehensive
Environmental Response, Compensation and Liability Act Section 120,
which is of particular interest, because it specifically addressed the
requirements for response actions at Federal facilities. Superfund
Amendments and Reauthorization Act Section 211 established the Defense
Environmental Restoration Program (DERP) and its funding mechanism--the
Defense Environmental Restoration Account (DERA), which has
subsequently been expanded to create separate environmental restoration
(ER) accounts for each of the Military Departments, formerly used
defense sites and the Office of the Secretary of Defense.
In addition to the specific authorities and responsibilities
provided to the Department of Defense by Superfund Amendments and
Reauthorization Act, two Executive Orders (E.O.) provide Federal
agencies with the responsibility of cleaning up their facilities.
Executive Order 12088 (13 October 1978) requires Federal agencies to
ensure compliance with applicable pollution control standards.
Executive Order 12580 (23 January 1987) delegated the President's
authority under the Comprehensive Environmental Response, Compensation
and Liability Act and the Superfund Amendments and Reauthorization Act
to various Federal agencies, including the Department of Defense, for
releases from facilities or vessels under the jurisdiction, custody, or
control of the agency.
The Defense Environmental Restoration Program requires the
Secretary of Defense to ``carry out a program of environmental
restoration at facilities under the jurisdiction of the Secretary.''
The Department of Defense's Defense Environmental Restoration Program
activities are subject to and must be consistent with section 120 of
the Comprehensive Environmental Response Compensation and Liability
Act. Moreover, the Defense Environmental Restoration Program requires
that ALL response actions be in accordance with the Comprehensive
Environmental Response, Compensation and Liability Act. In other words,
Department of Defense sites are subject to Comprehensive Environmental
Response, Compensation and Liability Act authorities whether or not
they are included on the National Priorities list (NPL). (The
Environmental Protection Agency scores hazardous waste sites by their
potential to affect human health, welfare, and the environment.
Information from investigations is used to score sites. Sites with the
scores over 28.5 or greater may be proposed for the National Priorities
List.)
The Comprehensive Environmental Response, Compensation and
Liability Act Section 120(a)(4) provides that State laws concerning
removal, remedial action, and enforcement also apply to removal and
remedial actions at Federal facilities not included on the National
Priorities List. State laws that are not inconsistent with the
Comprehensive Environmental Response, Compensation and Liability Act
are applied to Federal facilities not on the NPL.
A key difference between the Defense Environmental Restoration
Program and the application of the Comprehensive Environmental
Response, Compensation and Liability Act to private parties is that the
Defense Environmental Restoration Program requires the Department of
Defense to identify EVERY contaminated site and clean it up under the
procedures of the Comprehensive Environmental Response, Compensation
and Liability Act and the National Contingency Plan (NCP) 40 CFR 300.
Private sites not on the National Priorities List are not automatically
required to clean up to the National Contingency Plan standards. The
National Contingency Plan is the basic regulation that implements the
statutory requirements of the Comprehensive Environmental Response,
Compensation and Liability Act and Section 311 of the Clean Water Act.
This regulation has the full force of law and Department of Defense
complies with its requirements.
The Comprehensive Environmental Response, Compensation and
Liability Act establishes a comprehensive process for implementing
cleanup and ensuring that substantive standards under other laws are
met. The method used to integrate State requirements into the
Comprehensive Environmental Response, Compensation and Liability Act/
National Contingency Plan process is through the determination of
Applicable and Relevant or Appropriate Requirements (ARARs).
The Department of Defense believes that the preferred method of
dealing with the delicate balance of authority with the states is to
negotiate approaches for investigation and cleanup. We believe that
negotiated agreements and remedies provide the best approach for
achieving the underlying purpose of protection of human health and the
environment.
States and the Department of Defense can enter into agreements for
the clean up of non-National Priorities List sites. We seek input from
states through our Restoration Advisory Boards (RABs), Management
Action Plans, Defense State Memorandum of Agreement (DSMOA), and
through negotiation of State multi-site cleanup agreements that allow
us to integrate the Comprehensive Environmental Response, Compensation
and Liability Act obligations with State procedural requirements. The
use of all of these mechanisms can significantly improve and streamline
cleanup when State and local regulators are meaningfully involved
during all phases of the environmental restoration program. To ensure a
smooth and efficient process, Department of Defense personnel and
regulators should agree in advance on the cleanup regulatory vehicle,
cleanup activities, review times and schedules. Installations and
regulators must listen to each other, respond to one another's needs,
and understand that there may be limitations on what the other group
can achieve. The Wright-Patterson Air Force Base case study below
illustrates the value of reaching consensus.
Wright-Patterson Air Force Base, Dayton, Ohio (Consensus
Documents).--Wright-Patterson Air Force Base uses consensus documents
to expedite the cleanup process and eliminate many of obstacles that
impede cleanup. (Consensus documents represent the collective opinion
of the installation and regulators.) Even more important than the
documents themselves is the decisionmaking process that participants go
through to reach agreement on the cleanup activities. This process is
not formal, but exemplifies the installation's successful partnering
and atmosphere of teamwork. Installation personnel and regulators are
up-front about their expectations and requirements for each cleanup
activity because the consensus agreements create an accountability
mechanism for the cleanup team.
Once a consensus document is created, it serves as a strategy or
road map for the cleanup process. For example, Wright-Patterson's risk
assessment assumption documents explain the approved process for risk
assessments at the installation. The installation also revisits each
consensus document if the cleanup process strays from the agreed path.
Along with their other benefits, consensus documents serve as
useful transitioning tools for new employees. In this capacity, they
are often used to familiarize new employees or cleanup team members
with past issues and the decisions made on them. Consensus documents
have saved time and money at Wright Patterson.
ROLES AND RESPONSIBILITIES
As discussed earlier, the most important change made to the
Comprehensive Environmental Response, Compensation and Liability Act by
the Superfund Amendments and Reauthorization Act was the centralization
of responsibility for Defense Environmental Restoration Program within
the Office of the Secretary of Defense. Following passage of Superfund
Amendments and Reauthorization Act/Defense Environmental Restoration
Program the President issued Executive Order 12580, which delegated his
authority under the Comprehensive Environmental Response, Compensation
and Liability Act and Superfund Amendments and Reauthorization Act/
Defense Environmental Restoration Program to various Federal agencies
including the Department of Defense. The broad Department of Defense
responsibilities mandated by the Superfund Amendments and
Reauthorization Act/Defense Environmental Restoration Program and
delegated by Executive Order 12580 are as follows:
Carry out all response actions with respect to releases of
hazardous substances on properties owned, leased to or otherwise
possessed by the United States and under the jurisdiction of the
Secretary.
Close interaction with the Environmental Protection
Agency, state, and local regulatory agencies in implementing the
National Contingency Plan.
Special notification to the Department of Health and Human
Services and the Environmental Protection Agency of hazardous wastes
that are specific to the Department of Defense installations.
Integration of public review and comment in numerous
activities associated with implementing the National Contingency Plan.
Annual reports to Congress explaining Defense
Environmental Restoration Program activities under Superfund Amendments
and Reauthorization Act Section 211.
The Secretary of Defense delegated his responsibilities and
authorities to execute the Defense Environmental Restoration Program
and Base Realignment and Closure) environmental restoration programs to
the Secretaries of the Military Departments and Directors of the
Defense Agencies with land management responsibilities. The Base
Realignment and Closure account funds environmental restoration
activities at installations designated for closure or realignment by
the Base Realignment and Closure process. The Army, as executive agent
for the Department of Defense, implements the Defense Environmental
Restoration Program at formerly used defense sites (FUDS) through the
US Army Corps of Engineers (USACE). The Office of the Secretary of
Defense formulates policy and provides oversight for the environmental
restoration program at operational and Base Realignment And Closure
installations and formerly used defense sites. The Army, Navy including
the Marine Corps, Air Force, Defense Logistics Agency (DLA) and Defense
Threat Reduction Agency (DTRA) execute the programs, consistent with
guidance, at their installations.
As required by Department of Defense management guidance, all
installations have a Management Action Plan (MAP) or equivalent, a key
document for managing an installation's environmental restoration
program. The Management Action Plan outlines a vision of the total
multi-year, integrates and coordinates an approach to achieving an
installation's environmental restoration goals, and provides for
cleaning up the installation. The installation should use the
Management Action Plan to identify and monitor requirements, schedules,
and project funding requirements. It is the basis for input into
program planning, budget development, execution decisions, and most
importantly for discussion with regulatory agencies. The Management
Action Plan is intended to be a living document, and installations and
stakeholders keep it current and available for public review. The story
of Fort Campbell demonstrates the value of Management Action Plans.
Fort Campbell, Fort Campbell, Kentucky (Installation Action Plan
Workshops).--The Department of Defense policy calls for each
installation or property to update its management action plan each
fiscal year. The Management Action Plan or its equivalent is a key
document in the management of an installation's environmental
restoration program. It should outline the entire multiyear,
integrated, coordinated approach that the installation or property will
use to achieve its environmental restoration goals. The installation or
property should use the Management Action Plan to identify and monitor
requirements, schedules, and project funding requirements. The
Management Action Plan is also the basis for program planning, budget
development and project execution decisions, and for discussion with
all stakeholders on the installation's or property's planned
restoration activities.
At Fort Campbell, an annual workshop is held to update its
installation action plan (as the management action plan is called in
the Army). Workshop attendance has evolved to include many of the
stakeholders involved in the installation's cleanup program:
installation personnel, EPA Region 4, State of Tennessee, Commonwealth
of Kentucky, Army Environmental Center, FORSCOM, Contracting Office
representatives, Restoration Advisory Board members, and contractors.
At each workshop, participants review the Installation Action Plan
site by site. They examine the status of each site (i.e., what phase of
cleanup it is in) and update the Installation Action Plan as needed.
Participants also review the proposed cleanup activities for each site
for the upcoming fiscal year. They then scrutinize the proposed
activities in relation to funding for the fiscal year and prioritize
the proposed activities if not all can be completed as planned. The
Installation Action Plan undergoes revision to reflect any changes in
the cleanup schedule.
Because the workshop participants review the IAP site by site
against the current fiscal year budget, each stakeholder is aware of
the cleanup plan.
DESCRIPTION OF A DOD INSTALLATION
Military installations can be very large, consisting of thousands
of acres and many types of environments, ranging from undeveloped
expanses of forests to populated areas which resemble small cities with
both industrial and residential areas. Along with the various
environments, installations often contain many types of environmental
restorationsites each requiring evaluation and potentially remediation.
A typical Department of Defense installation may contain many discrete
sites with varying types and amounts of contamination. Sites pose
differing risks to human health and the environment and are treated
differently depending on the contamination and threat to human health
and the environment. An installation may have anywhere from zero to
hundreds of sites. Department of Defense installations typically
include hundreds to thousands of undeveloped and undisturbed acres.
Typically, the contamination found on the installation is related
to the type of operation and past disposal practices. For example, in
areas where industrial metal working occurred, the contamination
expected would be metals and solvents both where the metal working took
place and where the wastes were disposed.
Most of the contaminants at Department of Defense sites are similar
to contaminants found at commercial industrial properties, airfields,
and cities--
Gasoline, diesel, and jet fuel
Heavy metals, such as lead and mercury
Cleaners, degreasers, dyes, paints, and strippers
Motor oil and hazardous household products
The Site Types-Counts table shows how many sites the Department of
Defense has in each site type. Attached are definitions for each of the
site types.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Army Navy Air Force DLA FUDS
--------------------------------------------------------------------------------------------------------------------------------------------------------
Total Sites in Total Sites in Total Sites in Total Sites in Total Sites in
Site Type Category Site Type Sites Progress Sites Progress Sites Progress Sites Progress Sites Progress
--------------------------------------------------------------------------------------------------------------------------------------------------------
Base Operations/Engineered Building Demolition/ 29 7 24 16 33 29 0.0 0 345 1
Structures. Debris Removal.
Contaminated 729 140 60 33 54 12 61.0 6 31 ........
Buildings.
Dip Tank............. 43 3 5 5 5 4 5.0 2 0 ........
Incinerator.......... 88 30 19 8 7 3 5.0 0 7 ........
Maintenance Yard..... 132 45 54 45 33 19 1.0 0 2 ........
Oil/Water Separator.. 418 17 44 19 105 35 2.0 0 1 ........
Storage Area......... 2,784 234 575 260 223 91 115.0 60 57 ........
Washrack............. 187 28 11 6 24 15 2.0 1 0 ........
---------------------------------------------------------------------------------------------------------------------
Total............ 4,410 504 792 392 484 208 191.0 69 443 1
---------------------------------------------------------------------------------------------------------------------
Storage Tanks..................... Above Ground Storage 332 36 85 58 94 42 13.0 5 97 ........
Tank.
POL (Petroleum/Oil/ 29 16 76 49 123 83 10.0 2 24 ........
Lubricants) Lines.
Underground Storage 1,322 96 755 306 1,063 400 65.0 16 688 2
Tanks.
Underground Tank Farm 95 19 90 48 23 14 1.0 0 26 ........
---------------------------------------------------------------------------------------------------------------------
Total............ 1,778 167 1,006 461 1,303 539 89.0 23 835 2
---------------------------------------------------------------------------------------------------------------------
Industrial Operations............. Optical Shop......... 2 1 0 0 0 0 0.0 0 0 0
Pesticide Shop....... 52 23 17 10 11 4 6.0 0 1 ........
Plating Shop......... 8 3 15 11 3 2 1.0 0 1 ........
Sewage Treatment 65 15 12 6 36 18 1.0 0 5 ........
Plant.
Waste Lines.......... 146 36 70 46 36 26 3.0 1 4 ........
Waste Treatment Plant 239 55 37 17 54 27 0.0 0 2 ........
---------------------------------------------------------------------------------------------------------------------
Total............ 512 133 151 90 140 77 11.0 1 13 ........
---------------------------------------------------------------------------------------------------------------------
Training Areas.................... Burn Area............ 230 123 69 46 27 12 19.0 6 17 ........
Explosive Ordnance 159 65 49 34 36 16 0.0 0 75 ........
Disposal Area.
Fire/Crash Training 91 43 127 78 333 185 3.0 2 10 ........
Area.
Firing Range......... 54 17 17 7 15 10 0.0 0 96 ........
Pistol Range......... 19 7 9 2 4 2 4.0 2 2 ........
Small Arms Range..... 69 17 4 1 16 12 0.0 0 36 ........
Unexploded Munitions 192 61 47 28 34 22 0.0 0 648 4
& Ordnance Area.
---------------------------------------------------------------------------------------------------------------------
Total............ 814 333 322 196 465 259 26.0 10 884 5
---------------------------------------------------------------------------------------------------------------------
Radioactive Areas................. Mixed Waste Area..... 27 3 39 23 12 10 2.0 0 8 ........
Radioactive Waste 43 10 9 2 84 28 0.0 0 7 ........
Area.
---------------------------------------------------------------------------------------------------------------------
Total............ 70 13 48 25 96 38 2.0 0 15 ........
---------------------------------------------------------------------------------------------------------------------
Surface Discharge Areas........... Drainage Ditch....... 38 24 23 12 35 17 4.0 4 1 ........
Industrial Discharge. 115 82 20 13 17 11 0.0 0 2 ........
Sewage Effluent 16 5 3 1 7 3 0.0 0 3 ........
Settling Ponds.
Spill Site Area...... 751 214 426 205 1,554 875 42.0 18 13 ........
Storm Drain.......... 24 9 13 12 94 73 6.0 2 2 ........
Surface Disposal Area 581 153 698 283 387 200 6.0 1 38 ........
Surface Impoundment/ 288 129 100 55 42 26 9.0 4 27 ........
Lagoon.
Surface Runoff....... 49 9 12 8 12 6 0.0 0 4 ........
---------------------------------------------------------------------------------------------------------------------
Total............ 1,862 625 1,295 589 2,148 ........ 67.0 29 90 ........
---------------------------------------------------------------------------------------------------------------------
Subsurface Disposal Area.......... Chemical Disposal.... 60 37 5 5 39 24 0.0 0 14 ........
Disposal Pit and Dry 354 119 145 73 549 265 49.0 27 17 ........
Well.
Landfill............. 904 434 425 272 819 440 17.0 10 97 ........
Leach Field.......... 58 25 9 6 16 9 1.0 1 1 ........
---------------------------------------------------------------------------------------------------------------------
Total............ 1,376 615 584 356 1,423 738 67.0 38 129 ........
---------------------------------------------------------------------------------------------------------------------
Contaminated Media................ Contaminated Fill.... 57 29 26 11 13 7 79.0 3 101 ........
Contaminated 198 150 108 76 50 40 18.0 17 193 1
Groundwater.
Contaminated 152 67 122 67 32 14 15.0 1 54 ........
Sediments.
Contaminated Soil 46 20 15 9 8 3 20.0 2 21 ........
Piles.
Soil Contamination 66 22 9 7 13 7 31.0 7 107 ........
After Tank Removal.
---------------------------------------------------------------------------------------------------------------------
Total............ 519 288 280 170 116 71 163.0 30 476 2
---------------------------------------------------------------------------------------------------------------------
Other............................. Other................ 875 31 58 34 0 0 33.0 13 1,539 8
---------------------------------------------------------------------------------------------------------------------
Total............ 875 31 58 34 0 0 33.0 13 1,539 8
---------------------------------------------------------------------------------------------------------------------
Grand Total...... ....... 2,709 4,536 2,313 6,175 ........ 649.0 213 4,424 2,3
---------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------------------------------
BASE REALIGNMENT AND CLOSURE
The Base Realignment and Closure (BRAC) environmental restoration
process is applicable at closing and realigning installations affected
by Public Law 102-844, Section 330, as amended by Public Law 103-160,
section 1002. Environmental activities at Base Realignment And Closure
installations are analogous to those at active installations. The
Department of Defense's Base Realignment And Closure environmental
restoration goal is to quickly and effectively clean up closing
installations so that the property is available for transfer. Before
the Department can transfer property, it must meet the requirements of
the Comprehensive Environmental Response, Compensation and Liability
Act and the National Environmental Policy Act (NEPA). The Department of
Defense is striving to meet its goal to have property suitable for
transfer under the Comprehensive Environmental Response, Compensation
and Liability Act by the end of by fiscal year 2005.
In 1996, through an amendment to the Comprehensive Environmental
Response, Compensation and Liability Act, Congress created a valuable
tool for empowering communities dealing with cleanup issues. The
amendment, known as Early Transfer Authority, allows full ownership of
property before the completion of all cleanup activities. Early
transfer authority gives communities the opportunity to play a more
active role in realignment and closure decisions by allowing them to
gain ownership and consequently control of the property at an earlier
stage of the transfer process. The Department of Defense has completed
five early transfers to date. An example of an early transfer is the
Fleet Industrial Supply Center (FISC) Oakland as described below.
Navy (Community Partnership Accelerates Redevelopment At Fleet
Industrial Supply Center Oakland, California).--In 1999, the Navy
transferred its Fleet Industrial Supply Center (FISC) Oakland to the
Port of Oakland 3 years ahead of schedule. The basis for this transfer
is a landmark agreement between the Navy and the Port, which allows the
Port to lease portions of Fleet Industrial Supply Center Oakland for
immediate reuse while the Navy continues its restoration activities.
The rapid transfer was largely a result of strong cooperation among
local, state, and military stakeholders.
The early transfer of the Fleet Industrial Supply Center Oakland is
a major achievement for the Base Realignment And Closure program. Early
transfer of these 530 acres has allowed the Port to meet its Vision
2000 Redevelopment Plan objectives, and will secure the Port of
Oakland's position as the nation's fifth busiest port. In addition, by
tailoring its cleanup efforts to a known property reuse, the Navy saved
more than $27.5 million in remedial design, construction, and
monitoring costs.
Not only do the Navy and the Port benefit from this early transfer,
the city of Oakland will see an economic benefit as well. The Port
redevelopment is expected to create more than 10,000 new jobs and
increase revenue for the entire region.
NEW PROGRAM STRATEGY FOR 1990'S
Through the years, the environmental restoration program has
undergone considerable evolution. The Department of Defense has
rigorously examined its processes and policies to streamline the
cleanup process and maximize effectiveness. Several key policy
initiatives from the 1990's stand out: applying new program goals, and
applying the relative risk site evaluation methodology, building formal
relationships with regulators through partnering, and increasing
community participation through the Restoration Advisory Boards.
Relative Risk and DERP Goals
As the Defense Department's Environmental Restoration Program
progressed in the early 1990's, the Department recognized two major
problems associated with the pace of the cleanup. First, we had too
many high priority sites that we tried to address at the same time.
Second, we were not cleaning up the worst sites first.
In 1994, the Department of Defense implemented a framework for
evaluating sites based on their potential risk to human health and the
environment. Through this framework, the Department of Defense uses
evaluation of contaminants present, environmental migration pathways,
and receptors to categorize sites as high, medium and low risk and
sequences them for cleanup. Components must use the framework to
evaluate the relative risk posed by each site for future installation
restoration funding requirements at operating installation, closing/
aligning bases and formerly used defense sites. Installations offer
opportunities for regulators and other stakeholders to participate in
the process.
Partnering
Throughout the life of the Defense environmental restoration
program, we have found partnering to be one of the most effective tools
in streamlining and completing cleanup projects. Partnering enhances
relationships, increases communication, and maximizes the effectiveness
of each participant's resources by pooling assets and eliminating
redundancy. Installations develop and improve successful relationships
through partnering. Cleanups are most successful when installations and
stakeholders work together throughout the environmental restoration
process. Working together establishes mutual trust, enables better
coordination, and encourages agreement on actions that need taken.
Trust and coordination lead to effective integration of stakeholder
needs and priorities into the cleanup.
The Department of Defense teams up with a variety of groups,
including organizations, communities, industry, other Federal agencies,
and State and local governments. In addition to partnering with Federal
and State regulators, the Department of Defense is forging alliances
with Native Americans and Alaska Native tribes to restore tribal lands
affected by past Department of Defense activities.
Through the Defense State Memorandum of Agreement (DSMOAs) program,
the Department of Defense reimburses states and territories for
reviewing its investigation and cleanup activities at all Department of
Defense installations and properties. Authorized by the 1986 Superfund
Amendments and Reauthorization Act, the Defense State Memorandum Of
Agreement program supports all active and closing installations, and
also covers formerly used defense sites. At present, 46 of the 56
possible United States, states, territories and the District of
Columbia have entered into cooperative agreements for funding with the
Department of Defense, and 51 have signed Defense State Memoranda Of
Agreement.
These partnering agreements have helped states and the Department
of Defense coordinate and streamline the environmental restoration
efforts. The Department of Defense provided states with $24.8 million
in fiscal year 1999 for their support under the Defense State
Memorandum Of Agreement program.
Restoration Advisory Boards And Community Participation
The Department of Defense's public involvement program is based on
the understanding that the decisions and actions that military
installations undertake to cleanup and reuse property inevitably affect
the surrounding communities. To that end, the Department of Defense
established Technical Review Committees (TRCs) in the mid-1980's, which
served the purpose of providing forums for technical document review
and input into the environmental cleanup process. The February 1993,
Interim Report of the Federal Facilities Environmental Restoration
Dialogue Committee (FFERDC) included recommendations for improving
public participation in the environmental restoration process. The
Department of Defense expanded the Technical Review Committee concept
by forming Restoration Advisory Boards (RABs) based on the concepts
recommended in the Interim Report. More than half of the Technical
Review Committees converted to Restoration Advisory Boards to increase
community involvement opportunities.
A Restoration Advisory Board is a group co-chaired by a Department
of Defense representative and a community member that serves as a forum
for exchange of information between government officials and members of
the local community on installation cleanup issues. Restoration
Advisory Boards meet regularly to discuss environmental cleanup issues
at Department of Defense installations. They may also review and
comment on cleanup plans and reports. Primarily, Restoration Advisory
Boards are responsible for keeping the community informed on
installation activities and for relaying the community's views and
concerns to the Department of Defense.
The Restoration Advisory Board program entered its fifth full year
of operation in fiscal year 1999. In 1999 there were a total of 284
Department of Defense Restoration Advisory Boards.
The intent of Restoration Advisory Boards is to bring together
people who represent the community as a whole and also those who have
diverse interests, concerns, and values. A balanced, but diverse
membership is especially important because every community has
different needs and one group can not speak for the interests of
everyone. Since the inception of the program, installations have worked
to ensure that the Restoration Advisory Boards reflect the diversity in
the communities they represent. Those efforts have worked in fiscal
year 1999 Restoration Advisory Board membership was more diverse than
ever with increased participation of low income and minority groups.
Installations report that Restoration Advisory Boards helped to
improve the cleanup process. In fact, at more than half of the
reporting installations, Restoration Advisory Boards provided
significant advice that positively affected the scope or schedule of
environmental study or cleanup. In some cases, Restoration Advisory
Board members have technical knowledge that helped their installation
develop cost-saving remedies. Restoration Advisory Boards became more
proficient in their advisory roles and in presenting technical cleanup
information to the community while bringing community concerns to the
installations.
CONCLUSION
The Department of Defense continues to make steady progress under
the current process established by Congress for our cleanups. The
Department is proud of its Environmental Restoration Program and its
accomplishments especially the fact that 62 percent of restorationsites
have reached the RIP/RC goal demonstrating that the Department is well
on the path to completing cleanups. With continued Congressional
support and stable funding, we believe we will continue to make
progress on our environmental restoration cleanups.
The framework in place provides an effective mechanism for managing
a national program. The Comprehensive Environmental Response,
Compensation and Liability Act and the National Contingency Plan
provide flexibility while requiring the involvement of State
regulators. The resulting delicate balance between states and the
Department encourages both parties to work together to accomplish
goals. Our relative risk sequencing provides us with a tool to
prioritize sites and sequence cleanup. We are also continuing our
efforts to increase opportunities for stakeholders to participate in
the process.
The Department of Defense intends to continue the following
actions, which contribute to a successful environmental restoration
program:
Encourage installation personnel and regulators work from
the same plan and agree on how work will be done.
Maintain open channels of communication.
Involve regulators early and continuously throughout the
process.
Involve stakeholders throughout the process and
proactively with them.
Lead the partnering process and the cleanup team at
installations.
Defense Environmental Restoration Program.--Site Type Definitions
----------------------------------------------------------------------------------------------------------------
Site Category Site Type Site Description1 Primary Contaminants
----------------------------------------------------------------------------------------------------------------
Base Operations/Engineered Structures Building Demolition/ Building Demolition/ Asbestos
Debris Removal. Debris Removal sites Construction
consist of buildings debris
and/or debris that are Lead paint
unsafe and/or must be
removed.
Contaminated Building.. Contaminated Building POLs
sites result from Plating waste
releases within, or on Metals
the outside of, a POL sludge
structure of a Solvents
substance that has Asbestos
been contained within PCBs
the building. Propellants
Pesticides
Acids
Solvents
Acids
Dip Tank............... Dip Tanks typically are POLs
metal or concrete Chlorinated
units located in solvents
coating shops. They Metals
range in size from 50 Acids
to more than 500
gallons. The tanks are
used to clean parts
before treatment or to
coat parts with
various materials,
including metals and
plastics.
Incinerator............ Incinerators typically Ash
consist of a furnace Metals
and stack unit used Ordnance
for a variety of compounds
disposal activities,
including the
incineration of
medical waste or of an
installation's
dunnage. These units
vary in size and may
be either freestanding
or part of other
operations, such as
hospitals.
Maintenance Yard....... Maintenance Yards POLs
consist of paved or Solvents
unpaved areas where Metals
vehicles and other
maintenance equipment
are stored and often
serviced. Typically,
maintenance supplies
are stored at these
units.
Oil/Water Separator.... Oil/Water Separators POLs
typically are small PCBs
units that skim oil Solvents
from stormwater Industrial
runoff. The Oil Water wastewater
Separator site
consists of the unit
and any associated
piping.
Storage Area........... Storage Area sites are POLs
areas where spills and Metals
leaks from stored Solvents
containers or Acids
equipment have POL sludge
occurred. PCBs
Washrack............... Washrack sites POLs
typically consist of a
building designed for
washing vehicles, such
as tanks, aircraft,
and other military
vehicles. This unit
also may consist of a
paved area where
washing of vehicles
occurs.
Storage Tanks........................ Aboveground Storage Aboveground Storage POLs (for
Tanks. Tank sites result from example, heating oil,
release of substances jet fuel, gasoline,
to surrounding areas and POL sludge)
from aboveground
tanks, containers, and
associated piping.
POL Lines.............. Petroleum, oil, POLs (for
lubricant distribution example, heating oil,
lines are used to gasoline, jet fuel,
transport POL products diesel fuel, and other
from storage to fuels)
dispensing facilities. POL sludge
Underground Storage Underground Storage POLs
Tanks. Tank sites result from Metals
the release of POL sludge
substances from Solvents
underground storage
tanks and any
associated piping.
Underground Storage Underground Storage POLs
Tank Farm. Tank Farm sites result POL sludge
from the release of Solvents
substances from the Metals
multiple, generally
large, underground
storage tanks and
associated piping that
make up a tank farm
complex.
Industrial Operations................ Optical Shop........... Optical Shops typically Solvents
consist of laboratory
units located within a
building. Activities
include grinding
lenses used in eye
glasses or other
optical instruments.
Pesticide Shop......... Pesticide Shops Pesticides
typically are used to Metals
store and prepare POLs
large volumes of
pesticides and
solvents for
maintenance
activities. The units
may be located in a
freestanding building
or may be attached to
another building.
Areas near the unit
may have been used for
the disposal of off-
specification
pesticides.
Plating Shop........... Plating Shops typically Metals
consist of a building, Solvents
or a room within a Acids
building, used for Industrial
coating metal parts. wastewater
The unit contains
several tanks of
solvents that are used
in the plating process.
Sewage Treatment Plant. Sewage Treatment Plants Metals
typically consist of a Industrial
complex of tanks, wastewater
piping, and sludge Solvents
management areas used POLs
to treat sanitary
sewage generated at an
installation. The unit
may use chemical or
biological treatment
methods. Lagoons
associated with the
biological treatment
of sewage may be
considered to be
separate units.
Waste Lines............ Waste Lines are Solvents
underground piping Metals
used to carry Plating sludge
industrial wastes from Pesticides
shop facilities to a Explosive
wastewater treatment chemicals
plant.
Waste Treatment Plant.. Waste Treatment Plant POLs
sites result from Industrial
releases of substances wastewater
at plants that were Solvents
used to treat and Explosive
dispose of domestic chemicals
and/or industrial Plating sludge
wastewater.
Training Areas....................... Burn Area.............. Burn Area sites consist POLs (for
of pits or surface example, spent motor
areas that were used oil and jet fuel)
for open-air Explosives
incineration of waste. Propellants
Solvents (for
example, spent paint
thinners and
degreasing agents)
Ordnance
Explosive Ordnance Explosive Ordnance UXO
Disposal Area. Disposal Areas consist Ordnance
of open-air areas that compounds
were used for Explosives
detonation, Metals
demilitarization,
burial, or disposal of
explosives.
Fire/Crash Training Fire/Crash Rescue POLs
Area. Training Areas consist POL sludges
of trenches and/or Solvents
pits where flammable Metals
materials were ignited
periodically for
demonstrations and
training exercises.
Firing Range........... Firing Ranges consist Metals
of large areas of land Ordnance
used for practice compounds
firing of large Explosives
artillery or mortars UXO
or as a practice Radionuclides
bombing range for
aircraft. These areas
typically are
contaminated with
unexploded ordnance,
which may be found
both on and below the
ground surface.
Pistol Range........... Pistol Ranges may be Metals
located indoors or
outdoors and are used
for target practice.
Outdoor units include
a soil or sandbag berm
located behind the
targets to prevent
bullets from traveling
outside the range area.
Small Arms Range....... Small Arms Ranges Metals
typically are located Ordnance
outdoors and are used compounds
for target practice
with small arms,
usually 50 caliber or
less. The unit may
include a soil or
sandbag berm or a hill
located behind the
targets to prevent
bullets from traveling
outside the range area.
Unexploded Munitions/ Unexploded Munitions/ UXO
Ordnance Area. Ordnance Areas are Explosive
areas that have been chemicals
used for munition and Metals
ordnance training. Ordnance
compounds
Radioactive Areas.................... Mixed Waste Area....... Mixed Waste Areas are Solvents
areas used to store or Mixed waste
dispose of hazardous
wastes that have been
mixed with or
contaminated by
radioisotopes.
Radioactive Waste Area. Radioactive Waste Areas Low-level
are areas used to radioactive waste
store or dispose of
low-level radioactive
materials of various
types (for example,
radium paint and
radioactive
instruments and
propellants).
Surface Discharge Areas.............. Drainage Ditch......... Drainage Ditch units POLs
typically consist of a Metals
natural or man-made Solvents
ditch used as a runoff Explosive
control structure for chemicals
rainfall. The unit PCBs
also may be used for
runoff from other
sources, such as
process operations.
Man-made units may be
concrete lined.
Industrial Discharge... Industrial Discharge Metals
units consist of a Industrial
pipe system used to wastewater
discharge industrial
effluent to the
environment. The unit
may discharge to a
natural or man-made
water body or to a dry
creek bed or some
other natural feature.
Sewage Effluent Sewage Effluent Metals
Settling Ponds. Settling Ponds consist Ordnance
of a lagoon, or compounds
lagoons, used for the Solvents
settling of solids and/
or for biological
treatment of sewage.
The units also may be
used as infiltration
galleries.
Spill Site Areas....... Spill Site Areas are POLs
small areas where Solvents
spills from drums, Paint
tanks, or other waste Pesticides
storage units have Metals
taken place. Acids
PCBs
Storm Drain............ Storm Drains typically POLs
consist of a natural Pesticides
or man-made drain used Metals
as a runoff control Industrial
structure for wastewater
rainfall. The unit POL sludge
also may be used for Solvents
runoff from other
sources, such as
process operations.
Man-made units may be
concrete lined.
Surface Disposal Area.. Surface Disposal Area POLs
sites consist of small Solvents
areas formerly used Metals
for disposal of solid Explosive
wastes with little or chemicals
no free liquids.
Typical materials
include rags, filters,
paint cans, small
capacitors, and
batteries.
Surface Impoundment/ Surface Impoundments/ POLs
Lagoon. Lagoons are unlined Explosive
depressions, chemicals
excavations, or diked Solvents
areas that were used Metals
to accumulate liquid POL sludge
waste, waste POL sludge
containing free
liquid, or industrial
wastewater.
Surface Runoff......... Surface Runoff sites POLs
are areas that Metals
typically experience Solvents
sheet runoff from POL sludge
rain. The runoff may PCBs
contain contaminants,
particularly adjacent
to industrial areas
and airfield aprons.
Subsurface Disposal Area............. Chemical Disposal...... Chemical Disposal units .......................
are areas that have
been used for the
disposal of chemicals,
typically of an
unknown type. The unit
may be a burial area
where bottles or
packages of chemicals
were placed or an area
where liquids were
disposed of on the
soil.
Disposal Pit/Dry Well.. Disposal Pit/Dry Well POLs (for
sites consist of small example, motor oil)
unlined excavations Metals
and structures that Explosive
were used over a chemicals
period of time for Acids (for
disposing of small example, battery acid)
quantities of liquid Ordnance
wastes. compounds
Solvents
Landfill............... Landfill sites POLs
typically are areas Pesticides
formerly used for Solvents
disposing of both Metals
domestic and Paint
industrial hazardous Ordnance
waste. Compounds
Leach Field............ Leach Fields typically Metals
consist of a Solvents
subsurface area
generally associated
with septic tanks. The
unit serves the
purpose of
biologically treating
sanitary sewage;
however, in cases
where these units were
used at industrial
facilities, there is
also contamination
from non-biodegradable
industrial
contaminants.
Contaminated Media................... Contaminated Fill...... Contaminated Fill areas POLs
consist of resulting Explosive
from excavations for chemicals
construction, tanks, Metals
and other purposes. Paint waste
Ordnance
compounds
Contaminated Contaminated POLs
Groundwater. Groundwater results Metals
from various types of Chlorinated
releases of known or solvents
unknown origin, such Explosive
as migration of chemicals
leachate from disposal Nonchlorinated
areas and migration of solvents
substances from
contaminated surface
and subsurface soil.
Contaminated Sediments. Contaminated Sediments POLs
include sediments of Metals
bodies of water that PCBs
have been contaminated Solvents
by surface runoff, Pesticides
subsurface migration, Explosive
or direct discharge of chemicals
contaminants.
Contaminated Soil Piles Contaminated Soil Piles POLs
consist of soil that Solvents
has been staged after Sludge
an excavation activity. PCBs