[Senate Hearing 109-1042]
[From the U.S. Government Publishing Office]
S. Hrg. 109-1042
OVERSIGHT OF THE SUPERFUND PROGRAM
=======================================================================
HEARING
before the
SUBCOMMITTEE ON SUPERFUND AND WASTE MANAGEMENT
of the
COMMITTEE ON
ENVIRONMENT AND PUBLIC WORKS
UNITED STATES SENATE
ONE HUNDRED NINTH CONGRESS
SECOND SESSION
__________
JUNE 15, 2006
__________
Printed for the use of the Committee on Environment and Public Works
Available via the World Wide Web: http://www.access.gpo.gov/
congress.senate
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COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS
ONE HUNDRED NINTH CONGRESS
SECOND SESSION
JAMES M. INHOFE, Oklahoma, Chairman
JOHN W. WARNER, Virginia JAMES M. JEFFORDS, Vermont
CHRISTOPHER S. BOND, Missouri MAX BAUCUS, Montana
GEORGE V. VOINOVICH, Ohio JOSEPH I. LIEBERMAN, Connecticut
LINCOLN CHAFEE, Rhode Island BARBARA BOXER, California
LISA MURKOWSKI, Alaska THOMAS R. CARPER, Delaware
JOHN THUNE, South Dakota HILLARY RODHAM CLINTON, New York
JIM DeMINT, South Carolina FRANK R. LAUTENBERG, New Jersey
JOHNNY ISAKSON, Georgia BARACK OBAMA, Illinois
DAVID VITTER, Louisiana
Andrew Wheeler, Majority Staff Director
Ken Connolly, Minority Staff Director
----------
Subcommittee on Superfund and Waste Management
JOHN THUNE, South Dakota, Chairman
JOHN W. WARNER, Virginia BARBARA BOXER, California
CHRISTOPHER S. BOND, Missouri MAX BAUCUS, Montana
JOHNNY ISAKSON, Georgia FRANK R. LAUTENBERG, New Jersey
C O N T E N T S
----------
Page
JUNE 15, 2006
OPENING STATEMENTS
Baucus, Hon. Max, U.S. Senator from the State of Montana......... 17
Boxer, Hon. Barbara, U.S. Senator from the State of California... 6
Inhofe, Hon. James M., U.S. Senator from the State of Oklahoma... 1
Jeffords, Hon. James M., U.S. Senator from the State of Vermont,
prepared statement............................................. 49
Lautenberg, Hon. Frank R., U.S. Senator from the State of New
Jersey......................................................... 10
Lieberman, Hon. Joseph I., U.S. Senator from the State of
Connecticut.................................................... 50
Obama, Hon. Barack, U.S. Senator from the State of Illinois...... 12
Thune, Hon. John, U.S. Senator from the State of South Dakota.... 3
WITNESSES
Bodine, Susan Parker, Assistant Administrator, Office of Solid
Waste and Emergency Response, Environmental Protection Agency.. 20
Prepared statement........................................... 50
Cantwell, Hon. Maria, U.S. Senator from the State of Washington.. 16
Durbin, Hon. Richard, U.S. Senator from the State of Illinois.... 14
Porter, Winston J., president, Waste Policy Center............... 36
Prepared statement........................................... 71
Probst, Katherine N., senior fellow and director, Resources for
the Future..................................................... 34
Prepared statement........................................... 61
Responses to additional questions from:
Senator Boxer............................................ 68
Senator Jeffords......................................... 68
Spiegel, Robert, executive director, Edison Wetlands Association. 43
Prepared statement........................................... 108
Steinberg, Michael W., Superfund Settlements Project............. 41
Prepared statement........................................... 102
Trasande, Leonardo, M.D., MPP, assistant director, Center for
Children's Health and the Environment, Department of Community
and Preventive Medicine, Mount Sinai School of Medicine........ 40
Prepared statement........................................... 74
Responses to additional questions from:
Senator Boxer............................................ 101
Senator Obama............................................ 101
ADDITIONAL MATERIAL
Articles:
Children's Health............................................ 80-94
American Journal of Industrial Medicine......................95-100
Charts:
Cost Frequency Distribution for Construction Complete Sites
1981-2005.................................................. 59
More than $24 Billion Total in PRP Commitments for Cleanup
and Cost Recovery Since 1981............................... 57
Operable Units for Final and Deleted NPL Sites............... 60
States with the Largest Number of Superfund Sites and the
Largest Number of Superfund Sites Where Human Exposure is
not Under Control.......................................... 129
Superfund Appropriation Versus Trust Fund Balance (beginning
of the year)............................................... 56
Superfund Site Assessment Workflow--FY 2004.................. 58
Superfund Sites with Uncontrolled Human Exposures...........130-133
Statement, John B. Stephenson, Director, U.S. Government
Accountability Office.......................................... 120
OVERSIGHT OF THE SUPERFUND PROGRAM
----------
THURSDAY, JUNE 15, 2006
U.S. Senate,
Committee on Environment and Public Works,
Subcommittee on Superfund and Waste Management,
Washington, DC.
The subcommittee met, pursuant to notice, at 9:30 a.m. in
room 628, Dirksen Senate Office Building, Hon. John Thune
(chairman of the subcommittee) presiding.
Present: Senators Thune, Inhofe, Jeffords, Baucus, Boxer,
Lautenberg, and Obama.
Also present: Senators Cantwell and Durbin.
Senator Thune. Today's hearing will come to order.
I would like to welcome everyone to our oversight hearing
regarding the Superfund program, the program that I gained a
better understanding of since joining this committee. This is
the first hearing on this Superfund program in the past 4
years. So as we begin our hearing today, I would like to remind
my colleagues and those who will be testifying before the
committee today to be diligent in limiting your remarks to 5
minutes, so that we can ensure that we hear from all interested
parties.
There also will be a 5-minute round of questioning
following each panel. Any additional questions can be submitted
for the record.
With that, before I make my opening statement, the Chairman
is here and has to get to another meeting. So I am going to
yield to him and allow him to make his opening statement.
Chairman Inhofe.
OPENING STATEMENT OF HON. JAMES M. INHOFE, U.S. SENATOR FROM
THE STATE OF OKLAHOMA
Senator Inhofe. Thank you, Mr. Chairman. I have to manage
the DOD Authorization bill on the floor here in just a few
minutes. So I will make an opening statement.
However, I want to start by thanking the subcommittee
Chairman, Senator Thune, for holding this hearing. Superfund
was passed in 1980 and was at the time a step forward in
dealing with environmental issues plaguing our country. We have
learned a great deal since this legislation was passed and hope
this hearing today will allow us to expose some strengths and
weaknesses in important yet complex issues.
As most on this committee know by now, the No. 1 Superfund
site is in my State of Oklahoma, Tar Creek. When I became
Chairman, we started looking at this very closely. Much of the
progress that we have made was due to getting the Federal
Agencies together. I can remember when, Senator Boxer, it might
surprise you to know that all these Agencies had never even
talked to each other at the time, I am talking about DOE, DOJ,
EPA, and all of that.
Well, we got them together, and as a result of that, things
did work out. So things can happen. My friends across the aisle
will argue the only way to ensure long-term cleanup solution
would be to reinstate the Superfund tax, so that the polluter
pays for the cost. I, like the Administration, support the
polluter pay standard under the current Superfund law. When the
polluter can be identified that can pay, then they are held
liable for the damages. This has meant that about 70 percent of
Superfund sites are cleaned up by the polluters without the
involvement of Government revenues.
Other sites that are initially cleaned up by EPA are paid
for from costs later recovered from the parties that
contributed to the cause of pollution. At a marginal number of
these sites, responsible parties who contributed to the
contamination have gone out of business or do not have assets
to contribute to the cleanup. The Government prioritizes and
funds the cleanup at such sites out of general revenue funds
from all taxpayers and Superfund trust fund balances to assure
the protection of public health.
Some will argue that because of no tax, sites are unfunded
and therefore those communities are at risk. The truth behind
this statement is that local communities are not at risk. Sites
are funded based on risks they pose, meaning that most unstable
sites receive priority designation on funding. This is how EPA
has always determined funding, regardless of the
Administration. It was true in the Clinton administration and
in previous administrations. EPA focuses dollars where they are
needed the most. The Administration has displayed a strong
financial commitment to Superfund and I support the current
Superfund budget request.
I believe the reinstatement of any type of a Superfund tax
would create an inequitable burden on those companies that are
within the law. Various funding methods that are now working to
impose such a tax on business to raise money to put into the
trust fund would serve as a general inhibitor on business
development throughout our country. This tax would fall on
businesses already paying for their own cleanups, or that have
never created any kind of a Superfund site, and would put a
burden on those companies to pay for cleanups on sites.
So critics would say that those already doing their part
pay twice and have the very small number of those who did
contribute to the problem transfer the burden to everyone else.
I think this is a subject we have gone all around and around
and around on. There is a difference of opinion, certainly,
that is going to come out during the course of this hearing
between the left and the right side of this, Mr. Chairman. I
would just say that I feel very strongly that we don't need to
unnecessarily punish someone, someone who is a citizen, who has
not been responsible for any kind of a Superfund problem and
consequently, I believe this is a very significant, important
hearing to have, Senator Thune. I appreciate your holding this
hearing.
I do regret that I have to go to the floor to handle the
DOD bill for about 45 minutes. If you are still in after that,
I will come back. Thank you for allowing me to go first, and
thank you, Senator Boxer.
[The prepared statement of Senator Inhofe follows:]
Statement of Hon. James M. Inhofe, U.S. Senator from the
State of Oklahoma
I want to start off by thanking the subcommittee Chairman John
Thune for holding this hearing. Superfund was passed in 1980 and was at
the time a step forward in dealing with environmental issues plaguing
our country. We have learned a great deal since this legislation was
passed and hope this hearing today will allow us to expose some
strengths and weaknesses in this important yet complex issues.
As most on this committee know by now, the No. 1 Superfund site in
the entire country is in my home State of Oklahoma known as Tar Creek.
We have made significant progress at Tar Creek since I became Chairman.
Much of that progress was due to getting the Federal Agencies under
EPW's jurisdiction to finally work together to remove the obstructions
that had stalled cleanup efforts. The lack of cooperation within the
Federal family prior to my Chairmanship was simply unacceptable. In my
view if the bureaucracy of these Agencies would work in a collaborate
effort then the sites could be restored at a much higher rate than is
currently being accomplished.
My friends across the aisle will argue the only way to ensure a
long-term cleanup solution would be to reinstate the Superfund tax so
that the ``polluter pays'' for the cost. I, like the Administration,
support the polluter pays standard under the current Superfund law.
When a polluter can be identified that can pay, they are held liable
for the damages. This has meant that about 70 percent of Superfund
sites are cleaned up by the polluters without the involvement of
government revenues. Other sites that are initially cleaned up by EPA
are paid for from costs later recovered from the parties that
contributed to the cause of the pollution. At a marginal number of
these sites, responsible parties who contributed to the contamination
have gone out of business or do not have assets to contribute to the
cleanup. The Government prioritizes and funds the cleanup at such sites
out of general revenues from all taxpayers and Superfund Trust Fund
balances to assure protection of public health.
Some will argue that because of no tax, sites are unfunded and
therefore those communities are at risk. The truth behind this
statement is that local communities are not at risk. Sites are funded
based on the risks they pose, meaning that the most unstable sites
receive a priority designation on funding. This is how EPA has always
determined funding, regardless of administrations. EPA focuses dollars
where they are needed most. The Administration has displayed a strong
financial commitment to Superfund and I support the current Superfund
budget request.
I believe the reinstatement of any type of Superfund tax would
create an inequitable burden on those companies that are within the
law. The various funding methods are now working and to impose such a
tax on businesses to raise money to put into a trust fund would serve
as a general inhibitor on business development throughout our country.
This tax would fall on businesses already paying for their own cleanups
or that has never created a Superfund site and would put a burden on
those companies to pay for cleanups on sites they had nothing to do
with.
Critics would have those already doing their part pay twice and
have the very small number of those who did contribute to the problem
transfer their burden to everyone. Both Democratic and Republican
controlled Congresses have rejected such an unfair approach, now that
the recovery scheme that enforces the polluter pays principle is fully
in place and working.
I believe that with renewed commitment from the Administration in
cutting down bureaucratic hurdles that are impeding cleanup and
improved communication between Agencies, the Administration can make
great strides in cleaning up these sites without putting great
hardships on businesses not liable for these environmental damages.
OPENING STATEMENT OF HON. JOHN THUNE, U.S. SENATOR FROM THE
STATE OF SOUTH DAKOTA
Senator Thune. Let me just say by way of opening remarks
that unlike other States that have numerous Superfund sites,
South Dakota is relatively fortunate in that it has only two
sites, the Gilt-Edge Mine, which is a 258-acre open pit cyanide
heap-leaching gold mine in the Black Hills, and the other one
is Ellsworth Air Force Base, which continues to be monitored
for groundwater contamination and other hazardous substances
that were deposited by the military dating back to the 1940s.
The primary purpose of the hearing today is to learn more
about EPA's efforts to stabilize and clean up sites on the
National Priority List. We will hear from a diverse number of
witnesses that will, No. 1, testify regarding potential risks
Superfund sites pose to the public; No. 2, update us on what
PRPs and the EPA are doing to address the clean up of
contaminated sites; and No. 3, what improvements could be made
to make the Superfund program operate more efficiently and more
effectively, both in the short term and the long term.
It is clear to me that the EPA faces a far different
universe of cleanup demands than when the Superfund program
started over 25 years ago. While some have criticized the
Superfund program because the annual number of site completions
have dropped, I would like to make the observation that EPA is
doing more today to protect human health and the environment,
especially at the large cleanup sites.
Take for instance the combined impact that the following
laws have had on our country over the past three decades: The
Clean Air Act, Clean Water Act, RCRA, Toxic Substance Control
Act and Superfund. While tremendous progress has been made to
reduce human exposure to hazardous substances, I believe there
is ample room for improvement, especially within the Superfund
program. Hopefully following today's hearing we can come to an
agreement on a handful of improvements that might be able to be
made.
Last but not least, while it is not a central part of
today's hearing, I would like to raise concerns about what I
consider to be an attempt by some activists to regulate manure
under our Superfund laws. Superfund was intended by Congress to
provide for the clean up of the worst industrial toxic sites,
such as Love Canal. It was never intended to apply to
substances such as manure.
I have been approached numerous times in South Dakota by
agricultural producers and organizations who are concerned
about what attorneys might succeed in classifying manure as a
hazardous substance. Manure has been safely used for centuries
as a natural fertilizer all over the world. If we allow animal
manure to be considered a hazardous substance under Superfund,
then virtually every farm operation in the United States could
be exposed to liabilities and penalties. The economic impact
across the country would be devastating to American agriculture
and related industries. As many of you know, Superfund claims
could be brought against all sizes of operations and
individuals.
The history of Superfund shows that all contributors, no
matter their size, can and will be held liable. I do not
believe Congress ever intended such an outcome for America's
farmers, and I believe we need to address this issue in the
near future.
Like other business sectors, American agriculture is
appropriately regulated by a wide range of Federal and State
environmental laws, including the Clean Water Act, the Clean
Air Act and nuisance laws. It has never been considered to be
regulated under Superfund and I don't believe it should be now.
Currently, the agriculture industry is working with the
private sector, universities and Government Agencies to develop
new and emerging technologies for manure management, including
using excess animal manure for energy generation through
methane digesters. This is exciting technology, especially as
our Nation explores alternative sources of energy.
Congress should not allow the courts to legislate on this
issue. We need to act to clarify that liability and reporting
requirements under CERCLA and parallel reporting requirements
under EPCRA do not apply to livestock manure.
With that, I would yield to the Senator from California for
her opening statement.
[The prepared statement of Senator Thune follows:]
Statement of Hon. John Thune, U.S. Senator from the
State of South Dakota
Today's hearing will come to order. I would like to welcome
everyone to our oversight hearing regarding the Superfund program a
program that I have gained a better understanding of since I joined the
EPW Committee. Also, today's hearing is important because it's been 4
years since this committee held a hearing on the Superfund program.
As we begin today's hearing, I would like to remind my colleagues
and those who will be testifying before the committee that you need to
be diligent in keeping your remarks to Five Minutes to ensure that we
can hear from all interested parties.
Also, there will be one 5-minute round of questions following each
panel. Any additional questions for today's witnesses will be submitted
for the record.
With that, I will begin my opening statement and then yield to
Senator Boxer, the Ranking Member of this subcommittee for her
remarks--other members of the committee will be recognized based on the
Early-Bird Rule.
Unlike other States that have numerous Superfund sites, South
Dakota is relatively fortunate because it only has two such sites--Gilt
Edge Mine which was a 258-acre open pit cyanide heap-leach gold mine in
the Black Hills and Ellsworth Air Force Base which continues to be
monitored for groundwater contamination and other hazardous substances
that were deposited by the military dating back to the 1940s.
The primary purpose of our hearing today is to learn more about
EPA's efforts to stabilize and clean up sites on the National Priority
List. A diverse number of witnesses will: (1) testify regarding the
potential risks that Superfund sites pose to the public; (2) update us
on what PRPs and the EPA are doing to address the clean up of
contaminated sites and; (3) what improvements could be made to make the
Superfund program operate more effectively both in the short-term and
the long-term.
It's clear to me that the EPA faces a far different universe of
cleanup demands than when the Superfund program started over 25 years
ago. While some have criticized the Superfund program because the
annual number of site completions have dropped, I would like to make
the observation that the EPA is doing more today to protect human
health and the environment especially at large cleanup sites.
Take for instance the combined impact that the following laws have
had on our country over the past three decades:
The Clean Air Act,
The Clean Water Act,
The Resource Conservation Recovery Act,
The Toxic Substance Control Act and,
The Comprehensive Environmental Response, Compensation and
Liability Act.
While tremendous progress has been made to reduce human exposure to
hazardous substances, I believe there is ample room for improvement--
especially within the Superfund program. Hopefully following today's
hearing we can come to an agreement on a handful of improvements that
can be made.
Last but not least, while not a central part of today's hearing, I
also want to raise concerns about what I consider to be a ludicrous
attempt by some activists to regulate ``Manure'' under our Superfund
laws.
Superfund was intended by Congress to provide for clean up of the
worst industrial toxic waste sites such as Love Canal. It was never
intended to apply to substances such as manure. I have been approached
numerous times in South Dakota by agriculture producers who are
concerned that litigious attorneys might succeed in classifying manure
as a hazardous substance.
Manure has been safely used for centuries as a natural fertilizer
all over the world. If we allow animal manure to be considered a
hazardous substance under Superfund, then virtually every farm
operation in the United States could be exposed to liabilities and
penalties. The economic impact across the country would be devastating
to American agriculture and related industries. As many of you may
know, Superfund claims could be brought against all sizes of operations
and individuals.
The history of Superfund shows that all contributors, no matter
their size, can and will be held liable. I do not believe Congress ever
intended such an outcome for America's farmers, and I think we need to
address this issue in the near future.
Like other business sectors, American agriculture is appropriately
regulated by a wide range of Federal and State environmental laws--
including the Clean Water Act, the Clean Air Act and nuisance laws. It
has never been considered to be regulated under Superfund, and I do not
believe it should be now.
Currently, the agriculture industry is working with the private
sector, universities and government agencies to develop new and
emerging technologies for manure management, including using excess
animal manure for energy generation through methane digesters. This is
exciting technology--especially as our Nation explores alternative
sources of energy.
Congress should not allow activist judges to legislate from the
bench on this issue. We need to act soon to clarify that liability and
reporting requirements under CERCLA and parallel reporting requirements
under EPCRA do not apply to livestock manure.
OPENING STATEMENT OF HON. BARBARA BOXER, U.S. SENATOR FROM THE
STATE OF CALIFORNIA
Senator Boxer. Thanks, Mr. Chairman. As you noted, the last
oversight hearing was 4 years ago on this program. I happened
to be the Chair of the subcommittee then. So this is long
overdue.
The Superfund program should first and foremost be about
protecting the health and safety of our communities, including
our children, who are the most vulnerable to toxic waste. In my
State, we have the second highest number of Superfund sites. I
have cared a lot about this program because of that, and other
States across the country. I would ask unanimous consent to
place in the record a chart, two charts from the EPA's own Web
site, Mr. Chairman, if I might do that.
Senator Thune. Without objection.
[The referenced material follows on page 129.]
Senator Boxer. What I wanted to point out is the top 25
States with Superfund sites with uncontrolled exposures.
Uncontrolled exposures as defined by EPA. New Jersey has 19 of
these sites, Senator Lautenberg. New Jersey has 19 of the
uncontrolled sites, the highest in the Nation. Illinois has
second, with 12 uncontrolled sites. Washington State, I say to
my colleague, Senator Cantwell, and I should have Senator
Durbin, 12, Washington 10, New York 8, California 7. It goes
on. Many of our smaller States are on this list.
This isn't a question of left and right, as my good
Chairman said. This is a question of right and wrong. Because a
lot of these States are red States, a lot of these States are
blue States. It is not about this, it is about right and wrong.
What are we doing to clean these sites up?
I have to tell you that clear answers have not been
forthcoming from the EPA about the state of the Superfund
program. It has only been with extraordinary effort, using
every tool at my disposal as a Senator that I have been able to
piece together information about the program and the nature of
the threats posed by Superfund sites that for years have been
underfunded.
I held up the current Assistant Administrator's
confirmation, it wasn't personal. It was that I wanted
information. I asked for funding shortfall information and
honest answers about the risks posed by these sites. To date, I
have received partial answers.
But what I have learned has made it clear that we have to
get to the bottom of what is going on in this program. I am
especially concerned about the sites where human exposure is
not under control. I read some of the States that have the
greatest hazard there. I learned there were 149 of these sites
when I made my request. Today, EPA is saying there are 139.
Sites where human exposure is not under control can have
pathways of exposure that directly affects our children.
Residential back yards, parks, playgrounds or areas where
children have easy access sometimes have arsenic, lead or other
contaminants, according to EPA's own documents. I understand
each site has its own story. Some are worse that others. Some
have documented high levels of lead in children's blood like
Omaha lead in Nebraska or Bunker Hill in Idaho.
One thing is clear: EPA should have an open door policy
when it comes to information on the status of these sites.
People have a right to know if their children are safe and if
there is a threat, there is a fundamental right to know so
those affected can act. That is the American way. Secrecy is
not the American way. EPA's closed door approach to Superfund
is unacceptable.
We share many values in this country, and one of the most
central of values is the value we place on our children. It is
totally unacceptable for EPA to say that members of a community
or Members of Congress cannot know what is going on at these
sites in terms of risk and funding. What EPA plans to do or not
do should not be a secret. There is no national security here.
The limited need to protect enforcement information isn't an
excuse for keeping families in the dark.
It is stunning to see the casual way EPA treats the
public's right to know. Many of the documents I have asked for
at these sites, especially those relating to timing of cleanup,
funding shortfalls and related risks are stamped
``privileged.'' Look at it. This is what we get back.
Privileged, across the whole page. The vast majority of the
documents EPA provided in response to my questions were marked
this way one very single page.
To shut the people out and keep them in the dark is
unconscionable, and it must change. Superfund fee has long
expired, polluters have been left off the hook. The funding
levels for this program in constant dollars has dropped by more
than a third. It should be no surprise that a program that has
been shortchanged like this cannot meet its obligations. I have
a bill to restore the polluter fee. That would be an important
step.
I also applaud Senator Cantwell's effort in her bill to
force EPA to put together a financial assurance program for
polluting companies. It is a wonderful idea. Why should
Superfund information be kept secret? What is the motivation?
One thing is clear: if the public knew just how long the EPA
planned to take to clean up the site next door, there would be
an outcry. The Administration does not want to shift priorities
to a program like this. That is clear. So to prevent the
outcry, people are left in the dark. It needs to change.
I plan to work with my colleagues in an effort to make sure
that EPA has transparency, respects the public right to know. I
plan to introduce a bill to ensure that the public right is
protected and the door will be open at EPA, not tightly shut as
it is now. I will do everything in my power to ensure that the
state of this program is changed for the better. I look forward
to working with my chairman and the Chairman of the full
committee to make sure that this program gets back on track.
Thank you very much.
[The prepared statement of Senator Boxer follows:]
Statement of Hon. Barbara Boxer, U.S. Senator from the
State of California
Mr. Chairman, I appreciate your agreement as well as that
of the Chairman of our full committee to hold this critically
needed oversight hearing on the state of the Superfund program.
I conducted the last oversight hearing as Chairman of this sub-
committee more than 4 years ago and oversight of the EPA
Superfund program is long overdue.
The Superfund program should first and foremost be about
protecting health and safety of communities, including children
who are the most vulnerable to exposure to toxic waste. I have
long cared a great deal about the threat posed by Superfund
sites in my State. California has the distinction of being
second in the Nation in the number of Superfund sites with 94,
tied with Pennsylvania and only exceeded by our friends in New
Jersey. People who live near these sites have a right to know
exactly what is in the Superfund site next door and what
measures are being taken to protect them from the risks
associated with these highly toxic sites.
I am sorry to report that clear answers have not been
forthcoming from the EPA about the state of the Superfund
program. It has only been with extraordinary effort using every
tool at my disposal that I have been able to piece together
information about the program and the nature of the threats
posed by Superfund sites that for years have been under-funded.
I held up the current Assistant Administrator's confirmation to
attempt to gain access to information on sites where human
exposure is not under control. I asked for funding shortfall
information and honest answers about the risks posed by these
sites.
To date, I have received only partial answers to my
questions from the EPA--but what I have learned has made it
clear that we must quickly get to the bottom of what is going
on in this program. I am especially concerned about the sites
where human exposure is not under control. I learned there were
149 of these sites when I made my request. Today there are 139
according to EPA's Web site.
Sites where human exposure is not under control can have
pathways of exposure that directly affect children. Residential
backyards, parks, playgrounds or areas where children have easy
access have arsenic, or lead or other contaminants according to
EPA documents. I understand that each site has its own story.
Some are surely worse than others. Some have documented high
levels of lead in children's blood like Omaha lead in Nebraska
or Bunker Hill in Idaho. One thing is clear. EPA should have an
open door policy when it comes to information on the status of
these sites. People have a right to know if their children are
safe. If there is a threat, there is a fundamental right to
know so those affected can act.
EPA's closed door approach to Superfund site information is
unacceptable. We share many values in this country. One of the
most central is the value we place on the health and safety of
our children. It is totally unacceptable for EPA to say that
members of a community or Members of Congress cannot know what
is going on at these sites in terms of risk and funding. What
EPA plans to do or not do for a site should not be a secret.
The limited need to protect enforcement information is no
excuse for keeping families in the dark about the future of
their community.
It is really stunning to see the casual way EPA treats the
public's right to know. Many of the documents I have asked for
at these sites, especially those relating to timing of cleanup,
funding shortfalls and related risks are stamped ``PRIVILEGED''
across the whole page in bright red ink. The vast majority of
the documents EPA provided in response to my questions were
marked this way on every page; they were given to Senator
Inhofe and EPA asked that our access be limited. They talked
about not allowing us to review these documents without
supervision. This program is set up and paid for by the people.
To shut the people out and keep them in the dark in this way is
unconscionable. This is not a national security issue. It must
change. It must change quickly.
The Superfund fee has long expired and polluters have been
let off the hook as a result. The funding levels for this
program in constant dollars have dropped by more than a third.
It should be no surprise that a program that has been
shortchanged like this cannot meet its obligations to
communities. I have a bill to restore the polluter fee and that
would be an important step. I also applaud Senator Cantwell's
efforts in her bill to force EPA to put together a financial
assurance program for polluting companies.
Why should Superfund information be kept a secret? What's
the motivation? One thing is clear. If the public knew just how
long the EPA planned to take to clean up the site next door--
there would be an outcry. The Administration does not want to
shift priorities, that is clear. So, to prevent that outcry
people are left in the dark. This needs to change. I plan to
work with my colleagues in an effort to make sure that EPA has
transparency and respects the public's right to know.
Senator Thune. Thank you, Senator Boxer.
Let me just make a couple of comments, if I might, about
the documents. First, following DOJ guidelines, EPA only
provides privileged or confidential documents to the committees
of jurisdiction. Chairman Inhofe has made these documents
available to any member of this committee to help the members
and their staff with our oversight function.
In terms of providing the documents to members off the
committee, my understanding is that has never been done in the
past, and I understand as well that there have been
consultations with the late John Chafee's former chief counsel,
and that that was the policy when he was the chairman of this
committee as well.
Second, my understanding as well, there is frustration that
many of the documents have been labeled privileged or
confidential, or that they have been mislabeled. Again, I would
simply say, that is not our call to make. We have to treat the
documents in accordance with their classification. If we want
to challenge the classifications, then that is something that
needs to be done with the Administration privately, not
publicly. So these documents that have been made available to
Senator Boxer and the minority for the last 6 months, there has
been ample time to discuss the classifications prior to today's
hearing.
What I would add is that Chairman Inhofe has requested that
I object to any unanimous consent request to place any
privileged or confidential documents into the record of today's
hearing. So I make that statement.
OK, what we are going to do is----
Senator Boxer. Well, Mr. Chairman, excuse me. If I might,
as the Ranking on this subcommittee, respond to you. We will
talk to our own lawyers and we will decide how we will act
here. So I just want to make that clear.
Senator Thune. Well, that is your prerogative. All I have
simply said is----
Senator Boxer. You knew my prerogatives.
Senator Thune. Well, if you want to take it up with the
Administration or take it up with legal counsel, that is
certainly within your realm of options.
But in any case, I want to proceed with opening statements.
We have a couple of our colleagues who want to testify this
morning, but I am told that Senator Obama has an opening
statement, Senator Lautenberg, Senator Jeffords, you all have
opening statements. Senator Jeffords does not?
OK, let's go to Senator Obama, unless you want to defer to
your----
Senator Obama. I will defer to my better looking colleague.
Senator Thune. All right, Senator Lautenberg.
Senator Lautenberg. At least he didn't say older.
OPENING STATEMENT OF HON. FRANK R. LAUTENBERG, U.S. SENATOR
FROM THE STATE OF NEW JERSEY
Thanks, Mr. Chairman. Your statement, and I know given in
good faith, does raise some eyebrows here. When we talk about
privileged, I think the best way to describe it would be
hidden, instead of privileged. Then in a subtitle would be
hidden from the public, that is what we are talking about.
When Congress created the Superfund 25 years ago, our
country made a commitment: a commitment to clean up toxic waste
sites in our neighborhoods and communities. A commitment to the
principle that those who did the damage, the polluter, should
pay for the clean up of our environment. These commitments were
upheld by every Administration from both political parties
until the present Administration. The Bush administration does
not believe that polluters should pay.
It is nothing new that some companies don't want to clean
up the pollution they caused. What is new is that the Bush
administration is helping companies evade their responsibility.
So not only do citizens have to live with the pollution, but
they also have to pay to clean it up. So the victims get taxed
a second time. First, they have to pay for it, and second, they
have to breathe it and worry about their kids playing nearby.
Superfund established fees that were paid by the oil and
chemical industries. These fees were used to clean up abandoned
sites that had been polluted by companies that are no longer in
business. These fees expired more than 10 years ago.
But for a few years, the lack of fee collection wasn't a
problem, because Superfund still had a surplus of resources to
clean up toxic sites. Now it is a problem. The Superfund is
broke, bankrupt. Now it is taxpayers, not polluters, who get
stuck with the bill for their careless behavior for cleaning up
those abandoned toxic sites.
While the oil companies and others rake in profits,
taxpayers get stuck with the bills. It is a bad deal for our
taxpayers, a threat to the health of the people in States like
New Jersey, where we have over 100 sites. We have about a dozen
that are considered highest priority. But over 100 sites on the
National Priority List for cleanup, those sites, 14 of them,
actually, where human exposure to contaminated soil, polluted
groundwater or air emissions is not under control.
It is bad enough that the Bush administration doesn't want
polluters to pay to clean up these sites. But even worse, they
are trying to hide from the public the information about the
threats to their health. The Environmental Protection Agency,
EPA, has refused, as we heard from Senator Boxer, to release
information about toxic sites in communities where people live.
The American people deserve the truth about threats to their
health. They deserve a strong Superfund that makes polluters
pay to clean up toxic sites. I am pleased that two of our most
distinguished colleagues, Senator Cantwell and Senator Durbin,
will be testifying before us today.
I would also like, particularly like to extend a welcome to
Bob Spiegel of the Edison Wetlands Association, an organization
in New Jersey. Bob has been fighting a good fight for many
years, cleaning up polluted sites in New Jersey and protecting
our citizens. That really, without any resources except that
which he creates himself. So I wish that the Bush
administration shared the concern, the commitment to
environmental protection that Bob Spiegel and so many others
across the country have demonstrated. I thank Bob Spiegel for
being here today.
Mr. Chairman, thank you. I heard your opening remarks. I
hope that you will understand that when the question of
privilege is exerted, that it really suggests to us that this
is information that, given to an enemy, might be dangerous for
our well-being. This isn't dangerous. This is sleight of hand,
and it is resented, and hopefully will be understood by the
public across the country.
Thanks, Mr. Chairman.
[The prepared statement of Senator Lautenberg follows:]
Statement of Hon. Frank R. Lautenberg, U.S. Senator from the
State of New Jersey
Thank you Mr. Chairman for holding this oversight hearing on the
Superfund program.
When Congress created the Superfund 25 years ago, our Nation made a
commitment. A commitment to clean up toxic waste sites in our
neighborhoods and communities. A commitment to the principle that
polluters who damage our environment should pay to clean it up.
Those commitments were upheld by every Administration from both
political parties--until the Bush administration. The Bush
administration doesn't believe polluters should pay.
It's nothing new that some companies don't want to clean up the
pollution they cause. What is new is that the Bush administration is
helping companies evade responsibility. Instead of making polluters
pay, they want to protect polluters. So not only do citizens have to
live with the pollution, but they also have to pay to clean it up.
The Superfund established fees that were paid by the oil and
chemical industries. These fees were used to clean up abandoned sites
that had been polluted by companies no longer in business.
These fees expired more than ten years ago, but for a few years,
the lack of fee collection wasn't a problem because the Superfund still
had a surplus of resources to clean up toxic sites. But now it is a
problem. The Superfund is broke. Now it is taxpayers--not polluters--
who get stuck with the bill for cleaning up these abandoned toxic
sites.
While the oil companies and other polluters rake in record profits,
taxpayers get stuck with the bill. This is a bad deal for taxpayers--
and it's a threat to the health of people in states like New Jersey,
where we have 113 sites on the National Priority List for cleanup.
There are 14 New Jersey sites where human exposure to contaminated
soil, polluted groundwater, or air emissions is not under control. It's
bad enough that the Bush administration doesn't want polluters to pay
to clean up these sites.
But even worse, they don't even want the American people to know
about plans to clean up these sites that pose threats to their health.
The Environmental Protection Agency has refused to release information
about toxic sites in communities where people live.
The American people deserve the truth about threats to their
health. They deserve a strong Superfund that makes polluters pay to
clean up toxic sites.
I am pleased to see that two of our most distinguished colleagues,
Senators Durbin and Cantwell, will be testifying before us today. I
would also particularly like to extend a welcome to Robert Spiegel of
the Edison Wetlands Association. Bob has been fighting the good fight
for many years, cleaning up polluted sites in New Jersey and protecting
our citizens.
I wish the Bush administration shared the commitment to
environmental protection that Bob and so many others across the country
have demonstrated. Thank you, Bob, for coming down for this hearing
today.
Thank you again Mr. Chairman, for holding this important hearing.
Senator Thune. Thank you, Senator Lautenberg.
Senator Obama.
OPENING STATEMENT OF HON. BARACK OBAMA, U.S. SENATOR FROM THE
STATE OF ILLINOIS
Senator Obama. Thank you very much, Mr. Chairman, I
appreciate the time.
Let me just start, because I know my colleagues are
waiting, I am going to be brief. But I do have to echo
something that has been said about this assertion of documents
that are privileged and confidential. I recognize that these
are labels that were placed on these documents by the
Administration. I hold them responsible.
I do have to note, Mr. Chairman, that if we don't hold them
accountable, I don't know who does. If we get into a situation
in which any time there is information that an Administration,
Democrat or Republican, decides they don't want exposed
publicly, all they have to do is slap on the privileged or
confidential label and that's the end of the story, and we are
going to be completely deferential to those determinations,
then the American public is not going to be well served.
I cannot imagine a circumstance, and I will be asking the
lawyers, what the circumstances might be whereby information
about polluted sites somehow can't be made available for the
public record. Maybe there is an answer to that. I don't know
what it is.
One of the most basic roles of a congressional committee is
oversight. We haven't had an oversight hearing in the past few
years. But when properly done, oversight can help to figure out
what aspects of agency work is moving properly and hopefully to
provide a prod to the Agency if it is not attending to some
important issues.
Now, during the past year and a half, I have spent quite a
bit of time on children's health issues. Because of their
smaller size, their developing organs and bones and their
propensity to play in dirt and put things in their mouths,
children are more vulnerable to environmental hazards than most
adults. As a result, one of my priorities has been ensuring
that Agencies such as EPA are adequately protecting our
children's health.
Now, Senator Boxer, about this time last year, approached
Senator Durbin and myself with a chart showing that Illinois
had the highest number of Superfund sites with ``uncontrolled
human exposure.'' Just to give you one example of one of these
sites, Mr. Chairman, one of them is in Ottawa, IL. Ottawa is a
small town in central Illinois, about an hour and a half, 2
hours outside of Chicago. There was a plant there where mostly
women worked in a factory, painting luminous clock faces.
Because of the fine detail work needed, women were preferred.
They were taught to roll the brush with their tongue to make a
fine point. It turns out that they were licking radium-laced
paint.
Now, obviously that is tragedy enough. Most of them died in
their twenties. These women would now be grandmothers and
great-grandmothers. They lost their lives as a consequence of
working to better the lives of their families.
The factory is closed, but the radium contamination
remained. Another generation began to have uncommon cancers.
Now a new generation of children is growing up in Ottawa, and
they are being exposed to some of these same hazards, because
the Superfund site where human exposure is uncontrolled, there
is a vacant lot where children play and there is a skateboard
park that teenagers use.
There are similar tales around the country. Shortly after
Senator Boxer showed us this list of uncontrolled sites,
Senator Durbin and myself asked the EPA to elaborate on the
situation at these sites. It took 9 months to get a response
from EPA. After 9 months, the response that they sent us was
still incomplete. We later learned that they had provided
Senator Boxer more information about these Illinois sites than
they had provided Senator Durbin and I.
So you might understand our sense of frustration about
this. I am sure if you had a similar situation in South Dakota,
you would be similarly frustrated. We have now received some
more information from EPA, but frankly, the men, women and
children who live near these sites deserve better than a
piecemeal release of information or a grudging release of
information to the two Senators that represent this area.
So I am hopeful that, I know there is going to be a break
for a vote and then we will have a chance to return to the
panel, part of what I want to hear from the EPA is what is it
in the culture at EPA that prevents us from getting timely,
forthcoming information about these situations? We recognize
that the EPA didn't necessarily create these hazardous
situations, but it is part of their mandate to fix it. We have
an obligation to make sure that we are well informed about what
they are doing.
Thank you, Mr. Chairman.
[The prepared statement of Senator Obama follows:]
Statement of Hon. Barrack Obama, U.S. Senator from the
State of Illinois
Mr. Chairman, Ranking Member Boxer, thank you for holding this
important hearing today. One of the most basic roles of a congressional
committee is oversight. Unfortunately, that hasn't happened much over
the past few years. But, when properly done, oversight can foster a
productive ongoing dialog between the Agency and Members of Congress
about what is working, what is not, and how Congress and the Agency can
work together to improve the operation of government.
During the past year and a half, I've spent quite a bit of my time
on children's health issues. Because of their smaller size, their
developing organs and bones, and their propensity to play in the dirt
and put things in their mouths, children are more vulnerable to
environmental hazards than most adults. As a result, one of my
priorities has been ensuring that agencies such as EPA are adequately
protecting our children's health.
About this time last year, Senator Boxer approached Senator Durbin
and me with a chart showing that Illinois had the highest number of
Superfund sites with I quote ``uncontrolled human exposure.'' The EPA
Web site with information on these sites reads a little like a Stephen
King novel.
For example, one of the sites is in Ottawa, IL. Ottawa is a small
town in central Illinois where hardworking Midwestern women went to
work in a factory painting luminous clock faces. Because of the fine
detail work needed, women were preferred. They were taught to roll the
brush on their tongue to make a fine point. Of course, we now know that
they were licking radium-laced paint.
Most of them died in their 20's. These women, who would now be
grandmothers and great grandmothers, gave their lives so they and their
families could have a better life. The factories closed but the
contamination remained and another generation began to have uncommon
cancers. And now a new generation of children is growing up in Ottawa,
and they're being exposed to these same hazards. You see, near these
Superfund sites where human exposure isn't controlled, there's a vacant
lot where children play and there's a skateboard park that teenagers
use.
Unfortunately, there are similar tales at other sites around the
country.
Shortly after Senator Boxer first showed us the list of
uncontrolled sites, Senator Durbin and I asked EPA to elaborate on the
situation at these sites. It was a reasonable request, but it took 9
months for EPA to provide an incomplete response. And incredibly, we
later learned that EPA provided Senator Boxer with more information
about these Illinois sites than they had provided us.
We've now received some more information from EPA. But frankly, the
men, women, and children who live near these sites deserve better than
this piecemeal release of information.
I hope today's hearing will impress upon EPA that we are serious
about oversight in this committee. Again, I thank the Chairman and
Ranking Member for examining this issue.
Senator Thune. Thank you, Senator Obama.
Again, I will let EPA speak to the question of what they
consider to be privileged and confidential. My understanding is
that that is to, when they classify those things that way, it
is to ensure that ongoing enforcement actions aren't
compromised. But I would add, you should have had, as a Member
of this committee, nobody on this committee should have been
denied access to any of that information, any of that.
Senator Obama. Thank you.
Senator Thune. Senator Durbin, Senator Cantwell, thank you
for your patience. Please, Senator Durbin, proceed, and then we
will move to Senator Cantwell.
STATEMENT OF HON. RICHARD DURBIN, U.S. SENATOR FROM THE STATE
OF ILLINOIS
Senator Durbin. Thank you, Senator Thune, for having this
hearing. Thank you, Senator Boxer, for your leadership on this
issue. You have really informed me and Senator Obama about
things involving this Superfund issue which we couldn't find,
as members of the Senate. It is an incredible situation. But I
thank you for your diligence. I am glad we are talking about
this.
I testified before this subcommittee before on this issue.
Since then, there has been very little progress. I am really
troubled that, as we learn more about the health implications
of exposure to hazardous chemicals, especially threats to
children, as Senator Obama has noted, our commitment to provide
the funds necessary to clean up these orphaned hazardous waste
sites has declined. So as we learn more about the threat, we
put less into the effort to clean it up. That is exactly the
opposite of what I think public service requires.
Over the years some in Congress and this Administration
have resisted reauthorizing the Superfund approach which says
very basically, polluters pay. Instead, the approach of the
Administration is, all taxpayers pay. If someone is guilty of
pollution, everyone should pay for it. Most of us feel that the
ones who are responsible, the industries responsible, should be
paying for the cleanup.
Sadly, if we go to the all taxpayers must pay approach, we
find Superfund fighting with so many other things that need
funding: cutbacks in Amtrak and health care and education. We
know at the end of the day there will be very little, if any,
money left to do anything necessary, anything that is necessary
to clean up.
We know that these funding shortages delay cleanups and
leave communities at risk. I am troubled that cleanup is still
not completed, sites listed 20 years ago. Parsons Casket
Hardware site in Belvedere, IL, 6,000 people live within 1 mile
of this site. Twenty years ago, we said it was a problem.
Nothing has been done.
My recent communications with EPA have made it clear there
is another problem, and it has been highlighted this morning.
The EPA doesn't want to talk about this. When they talk about
it, they want to stamp ``privileged'' on it and suggest that we
don't want the public to know.
Wait a minute. If this is a danger to the public and we
have an open and transparent Government, why aren't we telling
the public about this danger? Is this building up to another
Erin Brockovich movie? Is that what it will take to finally get
the EPA to meet their public responsibility?
Senator Obama has mentioned, last year Senator Boxer
approached us with a list of 11 Superfund sites in our home
State. I am sorry that we are No. 2 on the list. I wish we
weren't even on the list. Senator Obama and I said, ``Well,
let's go to the EPA and get the information.'' We wrote a
letter. First, tell us information about these sites. Second,
analyze any threats at these sites. Third, tell us your
timetable and your plan to clean them up. It was a pretty
straightforward letter, when you get right down to it.
It took them 9 months to write a reply. Nine months. What a
gestation period for a simple letter. The EPA then refused to
provide us as much information as they already had posted on
their Web site. So we wrote them back and said, Excuse me? You
can't tell us, as U.S. Senators what is going on in our State
at Superfund sites that you are responsible for? Meanwhile,
people are asking questions, we go to their Web site, we
understand there is some threat of human exposure, Senator,
what can you find out for us?
Well, it turns out the EPA would tell us little or nothing.
We wrote to them again and we received a second response.
Unfortunately, it was still woefully incomplete. In fact, many
of the responses from the EPA are confusing and misleading. How
is it the Interstate Pollution Control site in Rockford was not
on the July 2005 list of 11 sites with uncontrolled human
exposure, then was classified as uncontrolled in their April
letter to us, and then was removed from the list 2 months later
in the June response? I don't think the EPA is even in
communication with itself, when it comes down to some of these
sites.
If you lived next to this polluted site, what would you
think? If your kids were anywhere near, if your family was
near, if there was a threat that some of this exposure might
lead to cancer or other serious illness, wouldn't you be
worried? Any responsible parent would be.
Can any of us in this committee really have confidence that
the sites in our States have been accurately classified? Can we
be sure the EPA designates a site today and then won't change
its mind tomorrow for no obvious reason? You have to get to the
bottom of it, not just for the families that are developed
here, but for the reputation of the U.S. Senate. If we cannot
ask the hard question and get honest answers from an Agency of
this Government, we are failing in our oversight
responsibility. We need answers before there is any further
damage or exposure to the communities and families that are
affected.
Thank you for this hearing.
Senator Thune. Senator Cantwell.
STATEMENT OF HON. MARIA CANTWELL, U.S. SENATOR FROM THE STATE
OF WASHINGTON
Senator Cantwell. Thank you, Mr. Chairman, for holding this
crucial Superfund oversight hearing, and to the Ranking
Subcommittee Member, Senator Boxer, for her leadership, and to
my other colleagues for being here today.
A few weeks ago, the Wall Street Journal reported on a
growing phenomenon across the West: that is, that towns and
cities are struggling to ensure cleanup from decades of
environmental contamination on properties formerly owned by the
ASARCO Company. For over a century, ASARCO mined and smeltered
and refined metals at sites across the country, leaving behind
a legacy of lead, arsenic and other contamination in more than
90 sites in 22 western States. But when ASARCO, a former
Fortune 500 company, filed for bankruptcy in August 2005,
suddenly the American taxpayer was stuck with a billion dollar
cleanup bill for the company's legacy of environmental
pollution, which includes 19 Superfund sites nationwide.
I would like to explain briefly to the committee how this
happened, because I think these are very important lessons that
Congress can learn from in order to reinvigorate Superfund. It
started in 1999 when a private Mexican mining company, Grupo
Mexico, bought ASARCO. Within days of their takeover, Grupo
Mexico began a fire sale of its non-mining assets to pay for
the takeover costs. These actions liquidated many of the
resources that ASARCO could have used to clean up its toxic
legacy.
Then in the summer 2002, Grupo Mexico attempted to purchase
ASARCO's stake in Peruvian mines at a price way below their
market value. With EPA growing increasingly concerned over
ASARCO's ability to fulfill court decrees to clean up some of
the Superfund sites, the Department of Justice lawyers blocked
the asset transfer, expressing concerns that ASARCO was selling
off assets to avoid their liability responsibilities.
Salvaging what public value they could in 2003, the Federal
Agency struck a deal with ASARCO in which they agreed to put up
$100 million in funds to pay for contamination cleanup on about
30 sites. In exchange, ASARCO received a 3-year moratorium on
Federal cleanup enforcement and was allowed to sell the
Peruvian mines to their parent company, Grupo Mexico.
However, last August, just as the 3-year moratorium was set
to expire, an asset-poor ASARCO filed for Chapter 11
reorganization, leaving taxpayers and local communities holding
the bag for an estimated $1 billion in cleanup of these
contaminated sites across western States. In my own State,
ASARCO has two Superfund sites, including a $180 million mess
on the shores of Commencement Bay, adjacent to the cities of
Tacoma and Ruston.
The real world effects of ASARCO's corporate maneuvering
became strikingly clear last summer when the day after ASARCO
declared bankruptcy, contractors abandoned, midway through the
project, the leveling and cleaning up of local yards that they
had torn up to remove contaminated dirt. This picture actually
shows the sites in Tacoma where ASARCO literally walked off the
job. Walked off the job when they declared bankruptcy, and left
these sites just as they are there.
I wish I could say that ASARCO was just an exceptionally
bad actor, but there is evidence that the company's devious
practices are more common than we realized. That is why we
asked for an investigation into this. I might note, we were
successful in getting emergency funds from EPA, taxpayer
dollars, to basically finish the cleanup in these individual
yards as we continued to battle.
But that is why in 2002, when ASARCO first threatened to
file for bankruptcy, I asked the Government Accountability
Office to examine how corporate polluters like ASARCO might be
avoiding their cleanup responsibilities under existing
environmental law. I want to thank Senators Jeffords and Boxer
for helping with that important investigation.
Some of you may know that that report found that EPA faces
significant challenges when seeking to hold businesses
responsible for their cleanup liabilities in bankruptcy and
other financial distress. It is because of that report that I
have filed legislation that my colleagues have supported that
will help us get the financial assurances that we need earlier
in the process.
The report found that EPA could make greater use of
available authority and enforcement tools to pursue these
hazardous waste cleanups from bankruptcy courts and financial
distress businesses. So I urge my colleagues to not leave the
American taxpayer on the hook for cleaning up contaminated
sites or leaving residential yards unfinished but instead to do
what it takes for us to provide sound and safe cleanup on
Superfund sites across the United States.
I thank the Chairman and the Ranking Member.
Senator Thune. Thank you, Senator Cantwell.
We have a vote on, and just a few minutes left to vote on
the supplemental Appropriation bill. So I am going to recess,
then we will come back and take it up with EPA.
[Recess.]
Senator Thune. The hearing will resume.
I want to ask Assistant Administrator Bodine to come
forward and take the witness stand. Before we hear testimony
from her, we have been joined by our colleague from Montana,
Senator Baucus, who would like to make an opening statement.
Senator.
Senator Baucus. It is pretty formal here, she is taking the
witness stand. That is a whole new development.
[Laughter.]
OPENING STATEMENT OF HON. MAX BAUCUS, U.S. SENATOR FROM THE
STATE OF MONTANA
Senator Baucus. I thank the Chairman.
Mr. Chairman, as we well know, a part of EPA's mission is
to protect the public health from environmental degradation.
Perhaps nowhere is this challenge greater than in the town of
Libby, MT. Just listen to the story of Mel and Lerah Parker. In
1993, they bought a little piece of land along the Kootenai
River from W.R. Grace and Company. This land was a site of W.R.
Grace's screening plant. But to Mel and Lerah, it was the
perfect spot to start their own business, Raintree Greenhouses.
They worked hard, built their business. By the late 1990s, they
had the largest nursery in the State of Montana.
Then in 1999, the extent of the asbestos contamination was
uncovered, and the Parkers' world literally came crashing down.
EPA had to tear down their outbuildings, their greenhouses and
their home. The EPA even had to destroy their cars and many of
their personal belongings. For several years, the Parkers
rented a house. Lerah Parker was recently diagnosed with
asbestosis.
Because of the huge loss they took with their business,
they will never rebuild their greenhouses. But the Parkers are
resolute. They hope to one day rebuild a house on a little
piece of property along the Kootenai River.
This is just one story from Libby. There are hundreds of
others, many of them even more tragic. Tremolite asbestos from
W.R. Grace's vermiculite mine has killed some 200-area
residents and sickened hundreds more. Again, killed over 200-
area residents and sickened hundreds more.
Assistant Administrator Bodine, I hope to impress upon you
just how important it is that EPA get the cleanup in Libby
right. In all my years as an elected official, this issue of
doing what is right for Libby is one of the most personally
compelling things I have ever been called upon to do. I have
been to Libby 18 times since the year 2000. Every time I go,
the devastation is worse, and it is worse. More people are sick
and dying. Helping the people of Libby is a very personal fight
for me, and I want to do all I can to get Libby residents the
help they need and deserve. It is the right thing to do for
both the victims and for future generations that we can still
protect.
That is why I was completely outraged to learn just last
week that workers digging a water line discovered a patch of
tremolite asbestos near the surface 8 to 12 inches thick, 6
feet wide and 20 feet long in a site that was supposed to have
been cleaned up, not once but twice, the first time by W.R.
Grace and the second time by EPA itself. Compounding the
offense is the fact that the workers were digging a water line
that was intended to serve the park that features the asbestos
victims' memorial.
It is not right. It is totally unacceptable. Given such
outrageous failures, I ask how can the EPA ever assure folks
like the Parkers that it is safe to rebuild their homes?
According to EPA's own calculations, there are 16 exposure
pathways that exist in Libby, 16. Asbestos exposure can occur
via the dust, soil, air, and other media at commercial and
residential sites. Cleanup has not even begun at Troy, MT,
which faces many of the same issues as Libby, including a
school building that needs to be cleaned.
The discovery of tremolite asbestos in an area that was
supposed to have been cleaned up twice calls much of EPA's work
at Libby into question. What quality controls are in place to
ensure that their mediation is adequate to protect the public
health? How long will Troy have to wait before EPA begins their
work? The Parkers deserve better. All of the residents deserve
better. EPA needs to make Libby, MT, one of its top priorities.
People are sick, they are dying. They need our help.
We are the public servants, they are the employers. We are
supposed to be working for them. Not some different Agency that
has a different point of view. We are the employees. We are
working for the people and the country who we represent. I
strongly urge the EPA to do their part and help right the wrong
that has been committed. It is an outrage, Ms. Bodine. I see
EPA people come and go. I think to some degree they look at it
just as a turn of the crank, punching the clock, it's a job.
That is not what your job is. Your job is to serve the people.
Your job is to clean up this Superfund site, get rid of all
this asbestos, get rid of all this vermiculite, get rid of it,
clean it up more quickly, not just in a turn the crank, passive
way, as has been the case when this asbestos has twice been
missed.
Mr. Chairman, the Parkers and hundreds of other Libby
residents ought to begin rebuilding their lives. I am
embarrassed it has taken this long, to be honest with you, Mr.
Chairman, Ms. Bodine. All these years it has taken, you had one
person working up there that was really good, for 2 or 3 years.
His name escapes me right now. He was excellent. He had the
confidence of people in Butte. He bled. He cared. He was an
amazing guy. He lived in the community for a couple, 3 years.
You just need to, I will get his name to you. You have to
find people like him, not only in Libby, but everywhere. But I
am thinking more about Libby right now.
Thank you for holding this hearing, and I look forward to
responses to my questions. I just want to impress upon you, Ms.
Bodine, I have never experienced anything in the years I have
been in the Senate, and that is 27 years, like this. These
people just, it is a part of Montana that is more remote, it is
a part of Montana people just don't know a lot about. These
people were made sick intentionally, in my judgment, by W.R.
Grace. There is a criminal suit going on right now. If you look
at the documents, it is quite clear that W.R. Grace knew what
it was doing, it knew it was causing this damage to the people
of Libby, MT. That is why they transferred 90 percent of their
assets out of reach of patients, so lawsuits couldn't attach 90
percent of their assets. That is on the record. They did that
intentionally to avoid these lawsuits. They knew what they were
doing.
At least you ought to know what you are doing. I don't say
that personally. I say that as the Assistant Administrator of
EPA, to get this done right away. Clean it up.
Thank you, Mr. Chairman.
[The prepared statement of Senator Baucus follows:]
Statement of Hon. Max Baucus, U.S. Senator from the
State of Montana
Mr. Chairman, thank you for holding this hearing. Part of the EPA's
mission is to protect the public health from environmental degradation.
Perhaps nowhere is this challenge greater than in the town of Libby
Montana. Just listen to the story of Mel and Lerah Parker.
In 1993 they bought a little piece of land along the Kootenai River
from W.R. Grace and Company. This land was the site of W.R. Grace's
screening plant, but to Mel and Lerah it was the perfect spot to start
their own business, Rain Tree Greenhouses. They worked hard, built
their business, and by the late 1990s they had the largest nursery in
the State of Montana.
Then in 1999 the extent of asbestos contamination was uncovered,
and the Parker's world literally came crashing down. The EPA had to
tear down their outbuildings, their greenhouses, and their home. The
EPA even had to destroy their cars and many of their personal
belongings.
For several years the Parkers rented a house. Lerah Parker was
recently diagnosed with Asbestosis. Because of the huge loss they took
with their business, they will never rebuild their greenhouses, but the
Parkers are resolute. They hope to one day rebuild a house on their
little piece of property along the Kootenai River.
This is just one story from Libby. There are hundreds of others,
many of them even more tragic. Tremolite asbestos from the W.R. Grace
vermiculite mine has killed some 200-area residents and sickened
hundreds more.
Assistant Administrator Bodine, I hope to impress upon you just how
important it is that the EPA get the cleanup in Libby right. In all of
my years as an elected official this issue of doing what is right for
Libby is among the most personally compelling things I have ever been
called on to do. I've been to Libby 18 times since 2000 and every time
I go the devastation is worse and worse. More people are sick and
dying. Helping the people of Libby is a very personal fight for me. I
want to do all I can to get Libby residents the help they need and
deserve. It's the right thing to do for both the victims and the future
generations we can still protect.
That's why I was completely outraged to learn just last week the
workers digging a waterline discovered a patch of tremolite asbestos
near the surface 8 to 12 inches thick, 3 feet wide and 20 feet long on
a site that was supposed to have been cleaned up, not once but twice,
the first time by W.R. Grace and the second time by EPA itself.
Compounding the offense is the fact that the workers were digging a
waterline that was intended to serve the park that features the
asbestos victims' memorial. It's not right. It's totally unacceptable.
Given such outrageous failures, how can the EPA ever assure folks
like the Parkers that it is safe to rebuild their homes?
According to EPA's own calculations there are 16 exposure pathways
that exist in Libby. Asbestos exposure can occur via the dust, soil,
air, and other media at commercial and residential sites. And cleanup
has not even begun at Troy, MT, which faces many of the same issues as
Libby, including a school building that needs to be cleaned.
The discovery of tremolite asbestos in an area that was supposed to
have been cleaned twice, calls much of the EPA's work at Libby into
question. What quality controls are in place to ensure that the
remediation is adequate to protect the public health? How long will
Troy have to wait before EPA begins their work?
The Parkers deserve better--all Libby residents deserve better. EPA
needs to make Libby, MT one of its top priorities. People are sick and
dying and they need our help. I strongly urge the EPA to do their part
and help to right the wrong that has been committed.
Mr. Chairman, the Parkers and hundreds of other Libby residents
want to begin rebuilding their lives. Thank you for holding this
hearing. I look forward to hearing the responses to my questions.
Senator Thune. Thank you, Senator Baucus.
We will now proceed to our second panel. We have with us
Assistant Administrator Susan Parker Bodine. Ms. Bodine,
Administrator Bodine, please proceed with your testimony and
then we will open it up to the panel for questions.
STATEMENT OF SUSAN PARKER BODINE, ASSISTANT ADMINISTRATOR,
OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE, ENVIRONMENTAL
PROTECTION AGENCY
Ms. Bodine. Good morning, Mr. Chairman, members of the
subcommittee. I am Susan Bodine, EPA's Assistant Administrator
for the Office of Solid Waste and Emergency Response. I am very
happy to appear today to talk about the Superfund program,
identify the challenges, talk about where we have been in the
past and where we are now that the Superfund program is in its
third decade.
I will summarize my statement, but ask that the entire
statement be submitted into the record.
Senator Thune. Without objection.
Ms. Bodine. You have my written statement, and in that, I
have attempted to explain the history of the program. Some of
you need no explanation, some of you have been working with the
program for many years. The point I am trying to make in the
statement is that the Superfund program is not where it was in
1980 when it was enacted by Congress in response to situations
like Love Canal or Times Beach.
At that time, there was outcry and concern over large toxic
waste sites, the program got started, started investigating
these sites. But a lot of time was being spent on investigation
at that point, because it took a lot of time to determine what
the risks were and to determine what the technological
solutions were. So not a lot of progress was made in the 1980s,
I think that is fair to say.
In the 1990s, in the program in its second decade, you saw
more progress. Ten years had gone by, studies were completed,
remedies were selected, so you did see more sites going to
construction. So again, it is a natural progression of the
program.
The program is now in its third decade. We are not done, by
any means. What has been completed are the easier sites, the
smaller sites. I know that other EPA officials have made that
point. What I tried to do in my written testimony and in some
of the attachments to that was provide the documentation that
shows that that is the case, the vast majority of the sites
that are at the construction complete stage were the low cost
sites, were sites that cost EPA itself either less than a
million or less than $5 million.
What we do have left are the higher cost sites, either
higher in oversight costs being carried out by PRPs, or fund
lead sites with multiple operable units that are more complex,
or Federal facility sites, which can have up to 10 or more
operable units. That is the challenge that we face in the
program now.
But I also want to impress upon the subcommittee that that
is not the only cleanup that is going on. There has been a huge
growth in cleanup through State programs. There has been a huge
growth in State cleanup programs as well as State voluntary
cleanup programs, as well as brownfields programs that EPA has
sponsored and supported. So what would have been listed on the
Superfund National Priorities List back in the 1980s, those
sites aren't even coming to the NPL any more. We are not seeing
the small, low cost sites that were listed in the 1980s, and
completed in the 1990s. Those sites are being done under State
programs.
The sites that come to the National Priority List today are
either the complex sites from a technological standpoint, or
they are the sites that don't have cooperative PRPs, and that
need Federal enforcement. That is the profile of our current
sites, and those are the sites that we are managing today.
I would like to talk about some of the issues that were
raised in earlier discussions this morning. One of the areas
that I very much am personally interested in is improving
management of the Superfund program. That requires good
information. The program, and the Agency has been getting much
better about providing information. In fact, far more data and
far more information is available about these sites than has
ever been in the past. I would point out that currently, for
every site, we have a site profile--I have examples of a couple
of them here, that is available on our Web site.
These profiles link to documents. That is an exciting
technological advance that we now have called SDMS, Superfund
Document Management System. We are linking to the actual
records of decisions. You can link to the risk information from
ATSDR. You can link to investigation and RFS documents. There
is far more information available about each NPL site than has
ever been available before.
I would also like to talk about the issue of whether or not
sites are exposure under control or not under control. On that
issue, that is a measure that was never publicly available,
never actually reviewed until 2002. In 2002, EPA began to look
at the sites in terms of whether human exposure was under
control or not, and make that information publicly available.
So again, that is new information that had not previously been
available.
The data on that, that is one thing I have been spending a
lot of time on since I started in this job in January of this
year, is to improve the quality of that data. I think Senator
Durbin made the point, the sites have shifted. That is true.
That is because we have been spending a lot of time examining
those sites, talking to the regions to determine whether or not
truly there is human health under control or not. By that, that
definition means whether or not there is a complete exposure
pathway to a chemical or contaminant above a level of concern.
If there is a complete exposure pathway, it should be indicated
as not under control, human health not under control. If there
is no complete exposure pathway under current site conditions,
it should be under control.
Based on the documents that we provided to the committee
prior to my confirmation, reviewing those, it was clear that
the regions were essentially all over the map in how they were
interpreting that, how they were supposed to apply that
definition. We are now changing our guidances, making sure
everyone understands how it is supposed to be used.
We have completed review of all the sites that are not
under control. We are also going back and looking at the sites
that were listed as under control to make sure those were
properly categorized. So when we are done, we will have a good
data-set that we can rely on and use to manage the program. I
wanted to make sure people understood that.
Then one point, I know I am way over my time, in terms of
the risk information related to these sites, that information
is absolutely public information, the risks associated with
these sites. It is certainly on our Web sites, and we have
links to documents. But also the information that we provided
to the committee that dealt with the risks and the exposure
pathways, all that information was not marked privileged. The
privileged information had to do with funding and the issue of
privilege was related to enforcement. The Agency is not at all
claiming that any situation or any issue with respect to risk
should not be a matter of public record.
Thank you.
Senator Thune. Thank you, Administrator Bodine.
Let me ask a couple of questions and then I will turn to my
colleagues to ask their questions as well. You have made
reference to the human exposure not under control. Could you
explain what that indicator means? Does it mean that there are
NPL sites that have actual exposure going on?
Ms. Bodine. To flag a site as human exposure not under
control, what that means is that under current site conditions,
there is a completed exposure pathway. What we don't require
are the remedial project managers to go out and prove that
there is exposure, because that would be too difficult. We want
to know that there is a completed exposure pathway. We consider
that a problem that needs to be addressed.
So there is, I'm certain, actual exposure at some of these
sites. But also, not actual exposure at some of these sites. In
the information that was provided to the committee, again as
part of my confirmation process, there were in many of the
templates that were filled out on sites, you would have the
first column saying no current exposure, and the second column
saying potential exposure. Again, that is very confusing when
we go back and look at it.
The remedial project manager may have said, no current
exposure, but if there was a pathway, we would still say yes,
that site is not under control and needs to stay on the not
under control list. If there was no exposure pathway, for
example, if you had contaminated groundwater but nobody was
drinking it, no wells were sunk, then that site right now is
under control and that is how we would track it.
That isn't to say the site is done. That isn't to say we
have achieved long-term protection. That is still a site we are
addressing through our remedial program. But human health
exposure is under control at that site.
Senator Thune. If you say that there is an exposure
pathway, when do you then make a determination about, that
there is potential for exposure when exposure actually occurs?
When you say you are tracking that, if there is an exposure
pathway, how do you get to the point where you make a
determination?
Ms. Bodine. We are tracking the completed pathway and then
when that pathway has been cutoff, and again, these are interim
measures, but cutoff either by providing bottled water and
alternative water supplies, on putting up a fence, just so the
people are no longer exposed, then we would say human exposure
is under control at that site.
The reason we don't go and actually look for actual
exposure is because that would literally require you to
essentially test people themselves to see whether they are
exposed. We don't require that.
Senator Thune. Let me ask you, since you have been on the
job, since being confirmed as the Assistant Administrator, have
you identified or been advocating or come up with any suggested
improvements in the Superfund program? Obviously this is the
first oversight hearing this committee has had in several
years. So it hasn't been closely examined. My assumption is
that having been on the job now for a few months, you have
probably had an opportunity to look in some detail at the
program.
Do you have recommendations that you would like to forward
or things that you think can be done to improve the program?
Ms. Bodine. I certainly do believe that we can do better
managing the program. That is something that I intend to do and
intend to continue to work on. Again, I have spent a lot of the
time in these first 6 months making sure that the data we have
on exposure under control and exposure not under control are
accurate. Because then, as has been mentioned by Senators here
this morning, we can then be confident that we can use that
data to manage the program to emphasize and to require that the
data be used in prioritization. In fact, I have already made
those changes that the indicator does need to be used in the
funding prioritization.
The other changes again also go to having good information
to manage the program, including our data bases and our
tracking systems. We have a large effort underway right now to
bring all of our data bases together so that a manager has
access to everything at once. Again, we have made incremental
steps on that. We have the documents now. We are tracking,
doing a better job, we are tracking things like 5-year reviews,
which had not been tracked before and following up where the
reviews haven't been completed.
In addition, we are now looking at what is called the post-
construction phase. A lot of the emphasis in the program to
date has been on whether or not you have achieved construction
completion. That was the benchmark people were looking for. But
construction completion only means that the construction of the
remedy is done. It doesn't mean that you have achieved long-
term protection, it doesn't mean that you've got a site that's
back into productive use.
We are now focusing on the post-construction phase, which
has not been focused on recently. It is very important, because
this is where we are really bringing the sites back to the
American public, back to use. To do that, we need to make sure
that we have institutional controls in place. I am placing a
huge emphasis on that. We have established a new measure under
GPRA, the Government Performance and Results Act, called
Superfund Sites Ready for Re-Use. To be considered ready for
re-use, our definition requires the institutional controls to
be in place. That is a brand new effort, but again, that is to
make sure that we are delivering on our promise to the American
people that yes, we are constructing the remedy, but also, we
are bringing these sites back into productive use.
Senator Thune. Thank you.
Senator Obama.
Senator Obama. Thank you very much, Mr. Chairman. I want to
thank my Ranking Member, Barbara Boxer and others, for
deferring to me. I am going to have to leave, unfortunately, in
just a couple of minutes.
First, any idea why it took us 9 months to get a response,
Senator Durbin and myself, on this issue? I know it actually
began before you were even appointed. But if a couple of U.S.
Senators take 9 months to get a response, I can only imagine
what the response would be like for ordinary citizens. Give me
some sense of what is going on there.
Ms. Bodine. First, let me apologize personally for that.
That should not have happened. What I believe happened was that
people assumed that the information on the sites that was being
provided to the committee was also being provided to you
personally. Because the questions that you were asking were the
same questions that the committee was asking. So there was a
failure to follow up with you personally, and you obviously
deserved a personal response.
Senator Obama. Well, that's fine.
Ms. Bodine. But the EPA has put in a process to track all
of the correspondence, so this doesn't happen again. I
apologize.
Senator Obama. Explain to me, if a lay person was just
reading the term uncontrolled exposure, that would indicate
that we don't have a handle on the exposure and that if in fact
there are individuals, particularly children, who are playing
on a site or near a site that is uncontrolled, that it poses a
potential health risk to them. Am I misunderstanding the
definition of uncontrolled? If I am not, then what active steps
is the EPA taking in bringing it under control?
Ms. Bodine. In many cases, there is an interim step, you
have long-term protection and you have final cleanup. But an
interim step to cutoff exposure would be, for example, a fence.
Another interim step could be a cap. In the skateboard park
that you referred to at the Ottawa radiation site, there is 6
feet of soil between the radiation and the skateboard park.
That is providing protection.
The piece where exposure is not cutoff is another area that
is about 75 feet away. It is outside the skateboard park right
next to a building. The owner of the building is making sure,
is keeping people from that area and watching the site,
monitoring the site so that it is not being trespassed upon.
But that area does not have a fence at this point in time.
Senator Obama. So just so I am clear, it is fair to assume
that if this is an uncontrolled site that it poses some
potential health risk, is that an accurate statement?
Ms. Bodine. Yes, that is an accurate statement.
Senator Obama. OK. If that is in fact the case, how do you
prioritize within the Agency to ensure that a site is
considered controlled? What funding mechanisms at this point
are being, are either existing or being pursued to bring these
sites under control? Finally, what proactive measures are in
place to inform residents who might be exposed that this is in
fact an uncontrolled site?
The bottom line is, I am trying to get to a point where, if
I am a parent with little kids near an uncontrolled site, (a) I
know that it is an uncontrolled site; (b) that my State and
local authorities are aware that it is an uncontrolled site,
not that it is just posted on a Web site, but they actively
know that this is the case; and (c) that there is some sort of
ongoing efforts to bring it under control. Can you walk me
through how that process is taking place right now?
Ms. Bodine. On the awareness of the public, every Superfund
site has a community involvement coordinator. So we have a
person who is assigned to work with the community and
communicate to the community exactly the risks posed by the
site.
On the funding priorities, up until this point, the regions
have established the priorities based on their understanding of
the risks at each site and are prioritizing based on risks.
That has been done at the regional level. But that means that
at the headquarter level, from a management level, I don't know
exactly how they are establishing that.
So what I would like to do going forward is be much more
clear in guidance to the regions on how they establish their
funding priorities, that they do need to take into account the
human exposure indicator.
Now, they have told me they already take this into account,
and I believe that to be the case, but it is not formalized in
terms of how you track to this particular environmental
indicator. We will be doing that.
Senator Obama. What I would like to do, and I am out of
time, I am going to work with Senator Durbin's office and with
Senator Boxer to put in some more formal requests. I think we
have to have some sort of formalized system so we know how
priorities are being set and how these judgments are being
made. So part of what I--it may be that in some cases you just
don't know the answers yet. In other cases, it may be that the
system has broken down in some fashion.
But I would expect, I would like to be able to say very
clearly, here is how decisions are being made about controlling
these sites. If it is a function of a lack of money, I want to
be able to know that so that I could potentially work to get
dollars for the EPA to control these sites. If it is not a
question of money but just simply there are too many sites and
we are prioritizing them based on risks and exposure, I would
like to know what the formula is by which those decisions are
being made, so that I can make some educated decisions about
how I am going to proceed in terms of making sure my
constituents are protected. I don't think that is too much to
expect from your office.
Ms. Bodine. If I could just respond. I do want to assure
you that the people who are making these decisions are the
technical experts in the field, that these are not, it is not a
top-down system. We have the folks that are working on the
sites making these evaluations and judgments and they are very
dedicated people.
Senator Obama. But if you, as the head of the responsible
EPA office, don't know how those judgments are being made, and
I don't expect you to know everything, although it would be
nice if you, coming to this committee knowing that these
questions were going to come up, had been fully briefed on it.
But if you are having problems articulating it, I certainly
don't know it. I guarantee you that the folks living in Ottawa
or these other sites don't know it. I am just saying, this is
something that we should know. It should be public, it should
be clear, it should be transparent and people should be held
accountable. That is what I am going to be looking for in the
coming months.
Thank you.
Senator Thune. Senator Boxer.
Senator Boxer. Yes, and I know Senator Obama is on his way.
Before he leaves, I just want to pick up on something he said,
very quickly. You said that the people who are making the
decisions are in the field. Now, that is true in terms of their
recommendations for how sites should be cleaned up.
Unfortunately, it is the budget crunchers who are deciding
how much you are going to spend on these sites. I am not going
to identify any of these, nor am I going to read them, in
deference to my Chairman's remarks, which I, by the way,
totally disagree with but respect, and so I will go by his
rules and will not put this in the record. But very clearly,
Senator, and I am going to give you this, because you are
allowed to see this, because you are on the committee, even
though it said privileged, what we have here are directions
sent out to people in the field saying, put together a budget,
and one of them should be the least you can get by with. Not
one word here about what we must do to make people safe.
So I want to give this to you, because I think you are onto
something here. It seems like it should be simple, but it isn't
simple where there is no commitment to this program. My belief
is yes, the people in the field are committed. That's why I
know what I know. But the people at the top, and I am not
talking about you, Ms. Bodine, I don't know exactly what your
influence is there, but I have to say, there is no interest, in
my view, in this program.
So continuing, without mentioning, identifying the sites, I
am going to ask my staff to give you a one-pager that was
marked privileged by your people on a site I will not mention.
I have gone through this with counsel. There is nothing in
there, says my counsel, at all, that would have any impact on
any lawsuit, as a matter of fact, in this case, the settlement
funds are exhausted, and even if there is any future lawsuit,
nothing in this document.
But I would say this. My gut tells me the reason this is
marked privileged so people out there can't see it and people
in this neighborhood can't see it is because it says that the
human health risk here in this particular site, seafood
consumption risk, is 40 times higher than it should be or
higher in worst case scenarios, and dermal contact risk with
shoreline soils, we talk about direct contact, is 4 times
higher than it should be, or higher under worst case scenarios.
Public and private access is a continual concern.
This deals with PCB levels that are 30 times higher than
ambient water quality criteria, sediment PCB levels 10,000
times higher than ecologically safe levels. Your people are
saying this. The real thing, I think, that your Administration
doesn't want people to know is, you are actually considering
taking 26 years to clean this up. You are considering 26 years
to clean this up. You have got to be kidding. What are we here
for?
So you have looked at this. What in this makes this that I
can't hand it to everybody in the audience and the press? What
is in here that makes it privileged?
Ms. Bodine. I would offer to sit down with you and with EPA
counsel to----
Senator Boxer. No, no, no. I want you to tell my Chairman,
who is defending you, what in here makes this be marked
privileged, so that he has to now tell me that I can't give it
out to the people, or people who aren't on this committee? What
in this document?
Ms. Bodine. The issue, the areas of privilege that EPA is
concerned about have to do with enforcement, which is why a
document, on a document by document basis, I would be happy to
sit down and determine if any enforcement----
Senator Boxer. I have already told you that our counsel has
looked at this, the Senate counsel, and says there is not one
thing in here that talks about enforcement. It has nothing to
do with it. If you are worried about linking, we are not going
to link.
So I guess I would ask you, on this particular document, so
that we don't go into the range of documents, will you please
have your people look at it and let me know by the end of the
day if I can in fact release this to the Senators, two of whom
do not sit on this committee, and to the Members of Congress,
both sides of the aisle, and the people in the community? If
you would get back to me, and in writing, in a privileged
communication, tell me why I can't do that.
Now, I want to get some other things, and I see that my
time is running out, so let me do this and ask for another
round, if I can. Mr. Jim Gulliford has been nominated to be
Assistant Administrator for the Office of Prevention,
Pesticides and Toxic Substances. After his hearing, members of
this committee asked him a series of written questions. When we
received his responses, we could see that edits had been made
to the document, cutting important information relating to
things like whether EPA had internally sought more funds for
the Omaha lead project than were formally requested by the
Administration.
The fact that the answer was yes was deleted. We have, I
know you probably can't see this, but I am going to read. This
chart shows the deleted information. Prior to the issuance of
the interim record of decision in December or initial request
for funding to sample residential properties was higher than
the amount received, but had virtually no impact on the actual
cleanup, since we were limited in the amount of--is that what
they wrote instead of--yes. So in other words, it was taken
out, the simple answer, and this was what was inserted.
There were other important deletions as well. Mr. Gulliford
has told us he approved the original response and headquarters
asked for changes. A staff member in the Office of
Congressional Affairs indicated that you made or were involved
in the changes. More recently we were told by the same office
that you were not involved in the changes. Were you or your
staff involved in any way, directly or indirectly, in deleting
the information relating to Superfund in Mr. Gulliford's
responses? Did you meet with the potentially responsible
parties in that case and discuss issues related to the deleted
information? Do you believe Members of Congress are entitled to
know the analysis of the funding needs for Superfund sites when
they ask for it?
So those are three questions.
Ms. Bodine. No, I had nothing to do with any edits, nor did
anyone in my office have anything to do with any edits of Mr.
Gulliford's testimony.
Senator Boxer. So where were they edited?
Ms. Bodine. I do not know.
Senator Boxer. Will you find out? Because he said----
Ms. Bodine. All the responses have to go through the Office
of Congressional and Intergovernmental Affairs.
Senator Boxer. I know, but you are responsible. You are the
head of the Superfund program. He answered a question on a
Superfund project, simply saying yes, that EPA internally
sought more funds than were formally requested. You saw how
that answer came back. Did that not get you upset, that Mr.
Gulliford was being overturned by someone outside your office?
Ms. Bodine. I did not see those responses before they were
sent to the committee.
Senator Boxer. OK. So even in your high level position, you
didn't look at who in your office did?
Ms. Bodine. No one in my office looked at those responses
before they were sent to the committee.
Senator Boxer. Well, where did they come from? Who
delivered the responses to this committee, the answers to the
questions?
Ms. Bodine. The Office of Congressional and
Intergovernmental Affairs.
Senator Boxer. So the Office of Congressional Affairs
deleted information that Mr. Gulliford answered, and you didn't
see it, nor did you look at it before it came here?
Ms. Bodine. That is correct.
Senator Boxer. Thank you. Did you know anything about it,
that they were changed?
Ms. Bodine. Only after the fact, after----
Senator Boxer. Did you do anything about it? Did you talk
to anyone and say, why did you do that, why did you change Mr.
Gulliford--after all, you are pushing for him. He's a good guy.
He answered a question honestly and then his simple,
straightforward answer is turned into gobbledygook. Did you
make any--did it disturb you when you found out about it? Did
it disturb you? Be honest with us. No one is going to hurt you
for being honest.
Ms. Bodine. I was surprised. The emotion I felt was
surprise. I guess I am not sure how to respond to your
question.
Senator Boxer. Well, honestly, I wish you would just say
how you felt. I feel like you're saying you were surprised. To
me it is shocking that someone over at the Office of
Congressional Affairs would edit someone's answers to questions
that are important for this committee to know, important to
know where this man stands. Now he, his whole image changes
when that answer changes, a simple, straightforward question,
did the EPA staff want more money to clean up that site in
Omaha. ``Yes,'' he answers, and then we get gobbledygook. It is
very disturbing.
So I guess--I know my time has run out on this round. I
just want to say to you, we need you to be honest with us. You
are there to fight for the environment. That is what the EPA--
it isn't the Environmental Pollution Agency, it is the
Environmental Protection Agency. We can't seem to get that kind
of passion over here. Thank you.
Senator Thune. Senator Jeffords, we will recognize you, and
Senator Boxer, I will say to you, we have people on the third
panel who have a plane to catch, so we are probably going to
have to submit questions for the record.
Senator Boxer. That's OK, I will submit them for the
record.
Senator Thune. OK, good. Senator Jeffords.
Senator Jeffords. I will put most of mine into the record.
I just have questions for Susan Bodine.
The Government Accountability Office has documented that
the Superfund program is operating with about 35 percent less
money in inflation-adjusted dollars than it had in 1993. How
has this impacted EPA's ability to clean up toxic waste sites?
Ms. Bodine. I wish I had a copy of the GAO report you are
referring to. It is important, when you are looking at the
numbers, to make sure that we are not comparing apples to
oranges. Because in 1993, there was more in the Superfund
appropriation than there is now. The appropriation was covering
ATSDR and NIEHS, which received $50 million, $60 million, up to
$70 million a year each. So that is one important component
that we have to compare. I am not sure, since I don't have it
in front of me, which two you are comparing.
But I would also ask you to understand that because we are
collecting money from PRPs and we are setting up special
accounts, we also have a great deal more money to spend that is
not appropriated funding. Essentially, the expenditures have
been relatively flat. Because we get an extra $160 million to
$170 million a year that is PRP money, that is settlement money
that is then put toward sites as well.
So funding has been relatively flat.
Senator Jeffords. The U.S. Supreme Court ruled last year
that parties liable under Superfund cannot sue other liable
parties for contribution unless they themselves have been sued
by the Government. How has this ruling impacted the willingness
of private parties to voluntarily cleanup contaminated
property?
Ms. Bodine. Senator, you have asked me about how it has
impacted people's willingness. I don't have that information.
That is not data that you can collect. I have heard concern
from parties that are interested in cleaning up sites. I have
heard anecdotes that this is causing people to think twice
about stepping forward and cleaning up sites.
But because we don't collect data on people's willingness,
I don't have hard information for you on that.
Senator Jeffords. In August 2005, GAO recommended that EPA
issue regulations required under the 1980 Superfund law to
compel high risk facilities that manage hazardous substances,
such as hard rock mining sites, to provide financial assurances
of their ability to clean up their own mess, so that taxpayers
are not left on the hook when these companies go bankrupt. Why
has EPA not yet issued these regulations? What is EPA's
schedule for proposing such rules?
Ms. Bodine. To date, EPA has relied instead on the
financial assurance regulations under RCRA, the Resource
Conservation and Recovery Act, which requires financial
assurance for people who treat, store, or dispose of hazardous
waste. We are now going back and doing an analysis of sites on
the National Priorities List, and in terms of the date these
sites were listed and under what regulatory programs were in
effect at the time the sites were listed, to determine if
additional financial assurance on the generator side is
necessary. That analysis is not yet complete.
Senator Jeffords. Ms. Bodine, in your written testimony,
you suggest that cleanup slow-down is due to increased
complexity, rather than chronic funding shortfall. If this is
the case, please explain why the EPA's proposed target for
completing site assessments will plummet by 17 percent in just
350 in fiscal year 2007. Am I correct that the Superfund
funding shortfall is constricting all phases of Superfund
activities?
Ms. Bodine. We have been, as we have been directed by
Congress in appropriations bills, we have heard expressions of
concern on progress on the back end of what we call the
Superfund pipeline, which is the remedial action construction
phase, and have been focusing on that end of the program.
We are still completing a great many site assessments. In
addition, through brownfields programs, States are also
conducting many site assessments, in part with brownfields
funding and in part under their own authorities. So if you
look, again, at the universe of activity, not just at what EPA
itself is doing, sites are being examined. In fact, you have to
do that to determine whether you are eligible for brownfields
funding, to determine if you are an eligible response site. You
can look at these sites and screen them out.
I would also point out that in the site assessment program,
the vast majority of sites are screened out. In fact, the
States prioritize those sites based on risk and already have a
good understanding of what sites need to be pushed forward, as
we are working on them.
Senator Jeffords. Thanks, Mr. Chairman.
Senator Thune. Senator Lautenberg.
Senator Lautenberg. Thanks, Mr. Chairman.
I am going to try to be very brief, Ms. Bodine, which
probably would make you feel better. But the fact of the matter
is that because of the shortness of time, I am going to ask you
a question--is it on?
Just to repeat what I said, you hear a litany, a chorus
from here, of disappointment, not just in the fact that these
sites are not being cleaned up at a rapid enough pace, but the
integrity of the institution, of the Department, is also at
stake here. Privileged? Senator Boxer, whatever you do, unless
we know that the staff has secret clearance, don't hand them
that paper, because you could break the law, based on the
definition we have from our distinguished Chairman, that
privilege means that it is for your eyes only.
So do you think that we are allowed to give any papers to
our staff that say privileged on them? Do you need a secret
classification to be able to read these documents, privileged?
Anyway, it's nonsense, and everybody knows it's nonsense.
It's deceptive and dishonest and really traitorous to the
people we serve.
What is the quick definition of an uncontrolled site,
please, Ms. Bodine?
Ms. Bodine. A site that has a complete exposure pathway,
such that a person could be exposed to contaminants above a
level of concern.
Senator Lautenberg. OK, fair enough. So in your testimony,
you say, listing on the site of the NPL, the completion,
construction could take, takes more than 10 years on average.
So do we then go out to the people living in the community and
say, get the devil out of here as quickly as you can, take your
kids, cover them up and leave the site? Does EPA do any
warnings like that?
Ms. Bodine. As I mentioned earlier, we have a community
involvement coordinator at every site. We also----
Senator Lautenberg. Do you know what they do?
Ms. Bodine. For example, we take interim actions, if it is
a groundwater exposure situation, we provide bottled water or
we provide municipal hookups.
Senator Lautenberg. Do you tell them that their kids could
get cancer or other diseases as a result of living there for,
well, if it is 10 years or 5 years or 3 years, whatever?
Ms. Bodine. The Agency holds public meetings and they
discuss the risks associated with the site.
Senator Lautenberg. Would it be a good idea to have a
broadside mailing to say, look, this is dangerous territory you
live on, you live on a site that could be worse for your
children than some effects of terror, or that kind of thing?
Ms. Bodine. Yes, at many sites the EPA is very proactive at
getting out to the community to tell them what measures they
need to take, good housekeeping measures, to reduce exposure.
So yes, that does happen.
Senator Lautenberg. It is so ludicrous. I think down deep
you agree, you are an intelligent person, you know what you
have here. Is there an impairment as a result of shortage of
funds in working the Superfund program?
Ms. Bodine. We are able to manage the program and protect
human health and the environment within our existing funding.
That is because we are prioritizing based on risk and because
as we just discussed, you take interim actions to cutoff
exposure. So you----
Senator Lautenberg. In my State alone, there are 19 sites
that are listed among the uncontrolled sites. If you had more
money, could we get faster action on those sites?
Ms. Bodine. Since I have been at the Agency, one of the
things, again, focusing on the human health not under control,
I have gone and looked at the sites that are listed as not
under control and asked, OK, what can we do? Because we should
be able to take steps to cutoff----
Senator Lautenberg. I know, that is the same question we
both asked. So now that you have asked yourself that question,
could we do anything, if we had more money to get on with these
sites?
Ms. Bodine. The interim actions that the regions put
forward, they are doing. In some cases, they already had the
money to do it. In other cases they had a PRP to do it.
Senator Lautenberg. If you had more money, Ms. Bodine,
respectfully, if you had more money, could you accelerate the
pace of cleanups? Yes or no, please. Yes or no.
Ms. Bodine. With more money, at some sites you may be----
Senator Lautenberg. I know it's hard to come out, but
please.
Ms. Bodine [continuing]. Able to proceed more quickly, but
that doesn't necessarily----
Senator Lautenberg. Well, is that a yes or a no?
Consolidate. If you had more money, could you accelerate the
pace of cleanup?
Ms. Bodine. Not at all sites. But at some sites, I am sure
that you could. And that when you look at the national
program----
Senator Lautenberg. At some sites. I would hope that it is
near my grandchildren, where my grandchildren live. I would
hope that it is near where everybody's grandchildren live that
you could accelerate. Your denial, it's outrageous. Honestly,
Ms. Bodine, for someone who has as lofty a position as you
have, for the experience you have, for the intellect that you
have, the fact of the matter is, the fact that you can't answer
that simple question yes or no is disturbing.
Should we, do you think that we ought to go back and ask
companies to contribute to clean up or are you satisfied to ask
the taxpayers in America to pay for it?
Ms. Bodine. We are asking companies to contribute to clean
up. In fact pursuing them and compelling them to pay for
cleanup.
Senator Lautenberg. Right. But would you be willing to ask
companies that contribute to the pollution, I am not saying
PRPs now, I am saying as it used to be, and I was instrumental
in that, because I started with Superfund issues in 1983. Would
you be willing to ask companies that are likely to contribute
to polluting, to the pollution in sites, would you be willing
now to recommend to the Administration that maybe we ought to
go back and tax or put a fee on the products that are being
made that could leave a trail of pollution behind?
Ms. Bodine. I don't think it is appropriate for me to
express a judgment on the source of revenue. The reason is
because the source of revenue for the Superfund program and the
taxes that used to be collected had no relation to the amount
of appropriations that was appropriated each year to run the
program. That is because Superfund is an on-budget trust fund.
This committee, I know, understands trust funds. It is not like
the Highway Trust Fund. There are no firewalls.
So when you are appropriating money----
Senator Lautenberg. So technically, it had to be
appropriated.
Ms. Bodine. Not only that, it is part of the unified
Federal budget.
Senator Lautenberg. Right.
Ms. Bodine. So it is competing with health care, it is
competing with HUD, it is competing with everything else.
Senator Lautenberg. Yes, but it is easy to earmark it based
on the source of the revenue to say that any funds that derive
from that situation are to be directed at, it doesn't have to
be law, it can just show intent. But your unwillingness to say
that more money, that we ought to get after these things, we
ought to, that we--sorry. There is no current funding for
continuing remedial sites at, at a particular site, if
additional funding becomes available, cleanup could be
accelerated by continuing the ROD determined to clean up, the
cleanup of the site.
Senator Boxer. Show that if they had more money they could
do a better----
Senator Lautenberg. No, well, that is----
Senator Boxer [continuing]. Every yellow tag----
Senator Lautenberg. Every yellow tag says, we would let you
see this information, it is not privileged, that has, that has
identified here, says if there was more money these sites could
be cleaned up, in Indiana, it goes across the country. The fact
that you are, in no way do you see need for more money, that
you admit that more money would accelerate cleanups, then is it
just that we sit and wish and hope that our kids don't get
sick, that there are no problems?
Senator Obama talked about a company that made radium faces
for watches. The women used to lick the brush to make them.
There is a site very near my house in Montclair, NJ, three
blocks away, where the neighborhood took almost $200 million to
clean it up. Finally clean. Took years. But the people who
worked there all died premature of cancer.
It is very disappointing, Ms. Bodine, that you can't be
more forthright and say yeah, no, you know, take the response
that is likely to get. We would honor you for the truth, I
promise you that.
Senator Boxer. Mr. Chairman, I just have one quick, very
directed question about blood testing on kids. Could I ask it
before she leaves?
Senator Thune. Let me explain our dilemma here. The third
panel has planes to catch, we have two votes scheduled at noon
and we have five people that need to----
Senator Boxer. Thirty seconds?
Senator Thune. Thirty seconds.
Senator Boxer. Really. A recent National Academy of
Sciences report on the site in Bunker Hill, in Idaho,
recommends universal blood testing of children in the affected
area. You have not requested these funds. My understanding is
it is a $200,000 request.
Will you please answer the question as to why you haven't
recommended that?
Ms. Bodine. I will have to get back to you for the record
on that, because I believe the discussions were ongoing with
ATSDR on that matter. So I will have to respond for the record.
Senator Boxer. Please.
Senator Thune. Thank you, Ms. Bodine. I am going to ask the
third panel to come forward. I want to, as soon as you get up
here, recognize in this order Katherine Probst, followed by Dr.
Porter, both of whom I am told have flights to catch. Then we
will move to Dr. Trasande, Mr. Steinberg and Mr. Spiegel. In
order to accommodate, to make sure that all witnesses have an
opportunity to be heard, too, I would ask you to really try
hard to stay within the 5 minutes allotted, because they will,
at least the last notification I got is that they are going to
call votes at noon, we are going to have a couple of votes.
I am going to ask Ms. Probst, if you would please proceed.
Thank you for being here.
STATEMENT OF KATHERINE N. PROBST, SENIOR FELLOW AND DIRECTOR,
RISK, RESOURCE, AND ENVIRONMENTAL MANAGEMENT, RESOURCES FOR THE
FUTURE
Ms. Probst. Thank you, Mr. Chairman, and distinguished
members of the subcommittee. Thank you for asking me to testify
today about the critical issues facing the Superfund program. I
am a senior fellow at Resources for the Future and have
conducted research on issues relating to Superfund for more
than 15 years.
I am going to focus on four key issues today: cleanup
funding, monitoring and enforcing institutional controls,
improved data and public information, and the need for
independent evaluation.
If Congress wants to hold EPA responsible for achieving
cleanup in an expeditious fashion for current and future NPL
sites, they need to ensure that the Agency has the funds it
needs. As has been mentioned, there has been a major decrease
in the program's funding. Since 1987 there has been a 40
percent decline in real dollars.
If that funding isn't increased, it is really critical that
EPA come clean about the implications of the shortfall on the
future pace of cleanup and on progress at individual NPL sites.
This will only happen if Congress, either in oversight hearings
such as this one, or as part of the annual appropriations
process, requires that EPA identify, on a site-by-site basis,
the specific shortfall for each site on the NPL and specify
which sites will be delayed, and by how, much if funding is not
increased.
In addition, Congress should require that EPA, on an annual
basis, present to this subcommittee and to the relevant
appropriations committees, how much funding would be needed to
fully fund cleanup.
I would like to just mention, I think that the page that
Senator Boxer read is probably about New Bedford Harbor, which
is a site that needs $300 million more to be cleaned up and is
estimated to take another 30 years. I know that the EPA
Regional Office region has asked for increased funding--the
site is currently getting about $20 million a year. That is why
it is going to take 30 years to clean up that site.
The second issue, which Ms. Bodine has already mentioned,
is monitoring and enforcing institutional controls.
Institutional controls are restrictions on the use of land,
water, or groundwater that are intended to keep people from
coming into contact with contamination that remains at a site
after all cleanup activities are complete.
These are now a common feature of remedies at NPL sites.
Almost a decade after these issues were first raised by
researchers at RFF, the Environmental Law Institute, University
of Tennessee and others, the Superfund program still does not
have a consistent and reliable approach to tracking and
monitoring these controls. As more and more site remedies rely
on institutional controls to ensure protection of public
health, EPA must make monitoring and enforcement of these
controls a top priority.
Simply put, institutional controls work only when people
know about them and comply with them. It is foolish to spend
tens or hundreds of millions of dollars on a site remedy and
them skimp on the monitoring and enforcement of these controls.
The Love Canal site, which in many ways begat the Superfund
program, is the proverbial poster child for the failure of
institutional controls at a Superfund site. EPA has a choice to
make: it can try to prevent future Love Canals by monitoring
and enforcing these controls, or it can create a situation
where the next Love Canal is just waiting to happen.
The third issue I wanted to raise, which has also been
mentioned, is improved data and public information. Getting
information on the progress, contamination, cost, and health
risks of NPL sites is a challenge. While there is in fact some
good information to be found on the Superfund Web site and the
site profiles that Ms. Bodine mentioned are wonderful, it is
actually very hard to find those site profiles on the EPA
Superfund Web site. You actually have to know where this
information is ahead of time in order to find it.
In addition, there are still major questions about the
quality of much of the information in the Superfund program's
two major systems, CERCLIS, which is basically their day-to-day
management data base, and the Agency's financial management
system (IFMS). These systems need a major overhauling, not a
tweaking. Absent reliable information on site progress,
contamination, and costs, it is extremely difficult to evaluate
or manage the cleanup program.
The final topic I want to talk about today is the need for
independent evaluation. Twenty-five years after the Superfund
program began, we still do not know the answers to some very
basic questions. We should know where scarce Superfund
resources are going, why some sites take decades to clean up,
why some sites are extremely expensive, and why there are still
sites where human exposure is not under control, but we don't.
The Superfund program needs to do a better job of
evaluating all major aspects of the cleanup program to identify
improvements. EPA needs to create a small office that has
strong policy and economic analysis capability, that is charged
with conducting and sponsoring independent analysis and
evaluation relating to the many aspects of the Superfund
program. Once such a critical mass is created, the first task
for this group should be to develop and implement a 3- to 5-
year strategy for independent research and evaluation and to
set aside funds for this purpose.
All of the studies and evaluations should be subject to
some form of external peer review to assure credibility and all
of these studies should be made public. Even though the program
is short of funds for cleanup, good evaluation should help the
program save money and be more effective in the future, which
is certainly an investment worth making.
In closing, I would note that after 25 years, many of the
same challenges remain as in the early years of the program.
There is a need for better data, for independent evaluation,
for a willingness to consider and make radical changes in
funding and management priorities. There is a need for
increased transparency in all aspects of the program.
I urge EPA to have as its goal not making the program
better this year or next, but to try to ensure that 5 years
from now, the program is better focused and managed, and that
there is better data and information about Superfund sites
available to the public. With an eye on the long term, rather
than tomorrow's news, EPA can give the American public a much
stronger and more effective program.
Thank you very much.
Senator Thune. Thank you, Ms. Probst.
Dr. Porter.
STATEMENT OF J. WINSTON PORTER, PRESIDENT, THE WASTE POLICY
CENTER
Mr. Porter. Thank you, Mr. Chairman. I am going to be very
brief, also.
I have had about 20 years experience in Superfund,
including serving as Assistant Administrator back in the early
days with Senator Lautenberg and Senator Baucus and others on
this subcommittee.
What I want to do is take a little different tack today. I
want to talk about how to improve the program from an
efficiency standpoint. I grew up in the engineering world with
a very large firm in San Francisco, where budget and schedule
were critical. I think the EPA career staff has done a good job
of doing the best they could under the circumstances, and made
a lot of progress. Two-thirds of the sites have been completed,
400 sites are in construction, for example.
But the bottom line, after my 20 years in Superfund,
including running the program for a while, sites take too long
and they cost too much. I think this problem has to be attacked
at the project level. It is nice to look at all these other
things, like management systems, and I don't disagree with
them. But Superfund is not an exact science. It takes a lot of
common sense and a lot of leadership.
I want to talk briefly about three phases of the program,
the study phase, the selection of remedy phase, and the
construction phase. This may sound like kind of nuts and bolts
stuff, but it is very important, from my experience in project
management. The reason why we are talking about money here
today, and talking about time is because we need to be more
efficient in getting these sites finished.
On the study phase, most important is to set deadlines.
Amazingly, most Superfund sites get started in with a study
without any real deadline of how long it is going to take. We
need to say, this is a 3-year project, or a 2-year project, or
a 5-year project, and make it happen.
A little secret I will let you in on is Superfund has
become something of a jobs program. One of the reasons these
sites take so long, in my opinion, and I am being kind of blunt
here today, is you have a lot of consultants, a lot of lawyers,
a lot of governmental employees, et cetera, who are making a
pretty good living off Superfund. I don't mean they are being
unprofessional. Most of them are quite professional. But I do
see that there doesn't seem to be much pressure to finish a
site.
Also, we need to identify alternatives early. There are not
hundreds of alternatives at a site. There are three or four or
five. We need to focus on those early, focus the data on those
and start talking about them. Because, as I sometimes tell the
decisionmakers, about half of Superfund is technical, about
half is ``other.'' The other includes communications, public
relations, costs, and implementability. It is also State
acceptance, community acceptance, etc.
We need to streamline the deliverables. What we have in the
Superfund now is what I call a culture of deliverables, where
if you deliver enough products, meaning reports and documents
and data bases, you are assumed to have done the job. I want to
see a culture of results and a culture of completion. I think
that, again, these all sound simple, but they are very
important and they are not ususally being done.
Selection of remedy. I would like to move the selection of
remedy up a notch to at least the regional administrator level
where it was in my day. It has been put further down in the
system in most cases. These are tough judgment calls. I would
be more happy if the regional administrator or someone in my
old job, the assistant administrator, were making more of these
decisions. Because what we have in this program is a serious of
projects. It is a series of projects, and you have to run
projects on a project by project basis.
The role of land use is important. We don't spend enough
time on land use. What is the site going to be used for? Let me
give you a quick war story from my day. At Rocky Mountain
Arsenal, a huge site near Denver, the Army decided after many
years of work and study and contention they were going to make
this into a wildlife refuge. Once that decision was made, the
whole thing flowed very quickly. It has been a great success,
billions of dollars were saved at Rocky Mountain Arsenal and
the public seems happy. So land use is very important.
Let me move finally to the construction phase, which I
think is the main thing now, because a lot of sites are in
construction. If I were you, I would look at the $1.2 billion
very carefully. I say this also to Susan and her colleagues.
Two billion dollars is a lot of money that the Government has
given EPA for Superfund, not to mention an even larger amount
of money put in by PRPs. Some 60-70 percent of all sites now
are cleaned up by responsible parties.
I am concerned that not enough of that money is getting
directly to the sites. EPA is a large organization. There is a
lot of overhead, there is a lot of groups at headquarters that
siphon a fair amount of that money off before it gets to the
field. I think the people in the field, have every expectation
they should get more of that money. I think that can be done.
Frankly, I would consider, if you want to do something, and
I would answer yes to what Senator Lautenberg said to Susan,
you could do more work with more money. I don't think we need
lavish amounts of money. I am not for new Superfund taxes. But
this committee and others might want to appropriate somewhat
more money, directed very directly at sites that need to be
finished.
Some of these sites don't need huge amounts of money. Some
do, some don't. These sites were created by everybody from
cities to counties to industry to individuals, and I think
Federal revenues are not a bad way to fund sites where there
are no viable responsible parties.
So that is what I would like to say. I think the program
has great room for efficiencies, and we could do much more with
sounder project management. We need to get people on the hook
by name, know who is making decisions at sites. I don't want to
just see a lot of data bases and other things. I want to know,
because I grew up in the project world, who is responsible for
finishing a project.
Thank you.
Senator Thune. Thank you, Dr. Porter.
Let me, if I might, turn to Senator Boxer here for a
minute. I understand you two both have to depart here shortly.
Maybe a couple of questions for the record, then we will go to
the other three panelists for your testimony. We do have two
votes locked in at noon, so we have some constraints.
Senator Boxer. I will be quick.
Dr. Porter, thank you so much for being here. In your
testimony, in your written testimony you say apparently EPA
does not have sufficient funds to expeditiously complete all of
the construction work now planned. You say something sort of
interesting here. You say, and that among other things, if
Congress is satisfied that EPA has done all it can do to
squeeze out funding for as many construction sites as possible,
then it might consider supplemental appropriations.
I find it interesting. Now, as you know, supplemental
appropriations are used for emergencies. I do think if we go to
Senator Lautenberg's testimony, where he went through these
uncontrolled sites, and we go to the definition of what it
means, that people are being exposed, notwithstanding the stuff
about wipe off your feet. These are the good housekeeping
things they suggest in these sites, and I think Mr. Spiegel
will tell more about it. But make sure you wash yourself, don't
let your kids play if it is windy, wipe your feet off, vacuum
the house. That is not sufficient, to my mind. Just as a family
member, you know, how do I know how much wind is too much wind
and all the rest.
We have to clean up these sites. You are right. When you
get a plan, clean it up. There are plans. So my question is, if
we were to have support to go to supplemental, you would
consider that we should pick the most urgent sites, I am
assuming.
Mr. Porter. That is right. I don't think Congress ought to
frankly get in the business of earmarking individual sites or
something like that. But I do think what you should do first,
and I think what Susan is doing, is you should look at, and the
Administrator should look at the fact that EPA has $1.2
billion, year in, year out. Admittedly, it is a little less
than it used to be, but it is still a fair amount of money.
Are we really using that money effectively? Are we really
using it on these sites that need it badly? There is several
hundred million dollars used at headquarters.
Senator Boxer. I am asking about supplemental.
Mr. Porter. Well, supplementals I think----
Senator Boxer. If we went to a supplemental, you would say
some of those sites, you could say are emergencies. That's what
a supplemental----
Mr. Porter. I think you might be able to do that, yes.
Senator Boxer. That is what you said in your testimony.
Mr. Porter. I don't think I used the word emergency.
Senator Boxer. You said supplemental, and that is what
supplemental is.
Mr. Porter. Yes, if you are satisfied that the $1.2 billion
is being prioritized properly, then I think the next line of
defense is to say, let's look at where we could spend money on
sites that really need to be cleaned up.
Senator Boxer. Thank you very much. I will stop there.
Senator Thune. Any comment on that? I guess that was
directed to Dr. Porter.
Ms. Probst. I can if you want, but you are short of time.
Senator Thune. All right, let's proceed to our third
panelist, Dr. Leonardo Trasande.
STATEMENT OF LEONARDO TRASANDE, M.D., MPP, ASSISTANT DIRECTOR,
CENTER FOR CHILDREN'S HEALTH AND THE ENVIRONMENT, DEPARTMENT OF
COMMUNITY AND PREVENTIVE MEDICINE, MOUNT SINAI SCHOOL OF
MEDICINE
Dr. Trasande. Good morning, Mr. Chairman and members of the
subcommittee. I am Dr. Leonardo Trasande. I am a pediatrician
and the assistant director of the Center for Children's Health
and the Environment at the Mount Sinai School of Medicine, the
Nation's first academic policy center devoted to the protection
of children from environmental threats.
Approximately 4 million children in the United States live
within 1 mile of a federally designated Superfund sites. These
children are at especially high risk of exposure to chemical
toxicants released from these sites into air, groundwater,
surface water and surrounding communities. Pound for pound,
children drink more water, they eat more food and breathe more
air, and so they take proportionately more of these toxins into
their bodies.
They also do not metabolize, detoxify and excrete many
toxics in the same way as adults. Thus, the chemicals can
reside longer in children's blood streams and cause more
damage.
A third reason is that children are undergoing rapid growth
and development and those very complex developmental processes
are easily disrupted. Superfund chemicals have been proven to
cause chronic disease in children. Lead, mercury,
polychlorinated biphenyls and certain pesticides have been show
to cause brain damage and to contribute to learning
disabilities and to disruption of children's behavior. Benzene,
1,3-butadiene and pesticides have been etiologically associated
with childhood malignancies. Ambient air pollutants also have
been shown to increase incidence of asthma and to trigger
asthmatic attacks.
Never has cleanup of the Superfund sites become so
important to the health of America's children. Over the past 30
years, chronic diseases of environmental origin have become
epidemic in American children. These include asthma, birth
defects, brain cancer, developmental disabilities, pre-term
birth, leukemia and testicular cancer. These rapidly rising
rates of chronic disease threaten the health of our children
and the future security of our Nation. It may create a
situation that has not been witnessed since the Great
Depression, in which our current generation of children may be
the first to enjoy a shorter life span than the generation
before them.
Toxic exposures at Superfund sites are also costly to our
economy. Four of the leading diseases of environmental origin
in American children have been found to cost our Nation $54.9
billion annually. Mercury pollution has been found to cost our
Nation $8.7 billion annually, as a result of lost economic
productivity, not to mention the 1,566 cases of mental
retardation annually that have been associated with mercury
pollution. Each of these cases is associated with additional
special education and health care costs, and thus the reduction
of unnecessary toxic exposure to Superfund chemicals can be an
effective and cost-effective approach to improving child health
in America.
This subcommittee should therefore continue to assure that
EPA is fully executing its duties under the Superfund program
to identify and clean up hazardous waste sites in the safest
and most expeditious manner possible. The benefits of
preventing exposure to Superfund chemicals have been proven
time and time again, first with lead, then with PCBs and more
recently with pesticides and methylmercury. Delays in
preventing toxic exposure will lead to preventable and costly
diseases in children such as developmental disabilities, birth
defects and childhood cancer.
I would like to close my testimony and urge the members of
this subcommittee to take two additional steps to prevent the
health effects of Superfund chemicals in American children.
First, the National Institute of Environmental Health Sciences
Superfund Research Program has developed cutting edge
technology to assess and evaluate human exposure, determine
effects of hazardous substances and track their transport
through various media at waste sites. The program improves the
efficiency of cleanup at Superfund sites and ensures that our
public health is most fully protected.
Finally in this testimony, I wish to point out the urgent
need for full funding of the National Children's Study, which
will unearth critical information of the health effects of
chemicals found at Superfund sites. I would like to take this
opportunity to thank the Chairman, Senator Thune and the
Ranking Member, Senator Boxer, for their strong support. Nearly
all of the 105 study sites overlap geographically with National
Priority List sites, and thus the National Children's Study
will provide extremely useful guidance about the health effects
of Superfund chemicals and ensure that the clean up of those
sites most efficiently protects their health.
Congress first authorized the National Children's Study in
2000. Since then, thousands of scientists have invested their
time and energy in planning the study, and Congress has
appropriated $55 million since then to design the study,
complete the preparatory research and designate the seven
Vanguard sites that will conduct preliminary testing. To move
forward, the study will require $69 million in fiscal year
2007. By failing to provide those funds and abandoning the
study at this point, we would forego all of that dedication,
all of that incredible effort and all that logistical
preparation, just when it is poised to do so much for our
children's health and prevent toxic exposure at Superfund
sites.
I thank you and I would be pleased to answer your
questions.
Senator Thune. Thank you, Dr. Trasande.
Mr. Steinberg.
STATEMENT OF MICHAEL W. STEINBERG, SUPERFUND SETTLEMENTS
PROJECT
Mr. Steinberg. Good morning, Mr. Chairman and members of
the subcommittee. On behalf of the Superfund Settlements
Project, I am very pleased to be here this morning. I would
like to begin with a big picture comment and then move on to
some specific recommendations for improving Superfund.
Superfund today is far from perfect. But we should
recognize that it is a mature program. It has largely achieved
its original objectives and it has largely addressed its
original workload. The gaps in our environmental laws that led
to the creation of so many contaminated sites have long been
filled. Today, responsible parties are cleaning up most of the
sites on the NPL and they are paying the full cost of those
cleanups. EPA is using Superfund to pay for cleanups at orphan
sites where no responsible parties exist who can pay.
So looking ahead, perhaps the most important thing that EPA
can do is to make the best possible use of its appropriation
from Congress. This morning I would like to offer four
recommendations, each aimed at conserving more of that
appropriation for the core mission of this program: cleaning up
NPL sites that have no responsible parties.
First, as Dr. Porter mentioned, a sizable chunk of the
Superfund appropriation is transferred each year to other EPA
offices that are not involved in cleanup work. These include
the Office of Administration, the Chief Financial Officer, the
Office of Inspector General. These offices provide what are
essentially shared services to many EPA programs, including
Superfund. Together, they receive something on the order of
$200 million each year, right off the top. That is roughly a
fifth of the total Superfund budget. We believe there is ample
room to trim those allocations and bring them more in line with
the program's current needs. Doing so will conserve more money
for the core mission of cleaning up NPL sites.
Second, each new NPL site that gets listed is a long-term
financial obligation for Superfund. So before a new site is
listed, it is important to think clearly about why that site is
being listed and what other options might be available for
addressing it. It may be, for example, that the State's
enforcement program was unable to secure cleanup from
responsible parties. It may be that there are no responsible
parties to pay for a cleanup.
Whatever the reason for listing a particular site on the
NPL, what we need here more than anything else is transparency.
Each proposed listing should say something about why EPA wants
to list the site and what alternatives have been considered.
This transparency will allow the local communities and other
members of the public to submit meaningful comments on how best
to handle the site. It will help us avoid listing sites that
can be addressed through other programs instead.
Third, EPA headquarters should have a larger role in key
decisions about cleanups. Dr. Porter alluded to this as well. I
would actually take it a step further. The reason this is so
important is that after the NPL listings, the next most
important decisions in terms of their impact on Superfund's
budget are the decisions about how to clean up the sites. Each
new record of decision, or ROD, selects the cleanup plan for an
NPL site. In practical terms, each new ROD is a long-term
financial commitment. So it is important that the cleanups
selected in these RODS are protective, practical and cost
effective.
Today, most of these cleanup decisions are made in EPA's
regional offices. Under an internal delegation dating back to
1994, most of the RODs are signed by division directors in the
10 regions. Now, there are advantages to this kind of
decentralized decisionmaking. But we think it is essential that
headquarters be able to manage the rate at which this program
takes on new long-term financial obligations. For that reason,
we recommend having Superfund program managers at EPA review
the new RODs before they are signed. This will allow program
management to address any concerns they have before final
decisions get made.
Fourth and last, EPA should reduce its spending on
oversight of cleanup work performed by experienced private
parties. All too often, as Dr. Porter mentioned, EPA hires
outside contractors to perform oversight, and those contractors
devote excessive time to the job. When this happens, the result
is large oversight bills and money is diverted away from
Superfund's other priorities. EPA has long recognized that it
needs to reduce oversight. But to date, the Agency has made
only very limited progress. We would encourage decisive action
here, which will in turn free up money that can be used for
Superfund's core mission.
Thank you, Mr. Chairman.
Senator Thune. Thank you, Mr. Steinberg.
Mr. Spiegel.
STATEMENT OF ROBERT SPIEGEL, EXECUTIVE DIRECTOR, EDISON
WETLANDS ASSOCIATION
Mr. Spiegel. Thank you, Senator Thune, Senator Boxer, and
the committee for having me here to testify.
My name is Bob Spiegel. I am the executive director of the
Edison Wetlands Association. Since 1989, we have been working
to clean up contaminated sites throughout New Jersey and other
States. I personally work actively to clean up, or am working
on 75 sites currently. Twenty of them are Superfund.
As you know, funds have all been dried up for orphan sites,
or sites with a lack of a viable responsible party. While the
EPA publicly states that the cleanups are on track, it is clear
at many sites that work is proceeding at a far slower pace or
not at all. This is especially troubling, because many New
Jersey Superfund sites are located in densely populated
residential areas, and their impact to public health and
environment is immediate and direct.
I want to talk about one site to illustrate the point at
hand, and that would be the Cornell-Dubilier Superfund Site in
South Plainfield. On the EPA's own Web site, they have a nice
little icon, when they talk about those sites that are not
under control, there is a little OK with a line through it. It
is kind of comical, because it really doesn't give the full
picture. It says that that site is not under control, the
Cornell-Dubilier site. It is now called the Hamilton Industrial
Park, and it is home to approximately 15 active businesses. The
site is approximately 26 acres, and it sits adjacent to a
working class residential neighborhood.
From 1936 to 1962, Cornell-Dubilier manufactured electronic
components and capacitors, and they dumped PCB-contaminated
material directly on site. As was the custom up until 1980,
onsite disposal was how businesses disposed of their waste. In
addition to the PCBs, there are 26 other contaminants of
concern that they are worried about at the site, which impact
the soil, the groundwater, both onsite and offsite, the stream
sediments and the Bound Brook as well. PCB capacitors from this
site were also found at another separate Superfund site nearby.
Even in the State with more contaminated sites with any
other, I believe we have about 18,500, which is a pretty big
record for New Jersey, Cornell-Dubilier stands out. The EPA's
own risk assessment has found cancer risks in excess of 3 out
of 100. Three out of one-hundred. That is a very high cancer
risk. That is a big number. Many residents have asked us how
they can get cancer studies for the neighborhood, which also
have a very high prevalence of cancer and other illnesses.
Some of the highest levels of PCBs in the State of New
Jersey are caught in the fish caught adjacent to the brook at
the site. Many local residents still consume the fish, they
still catch them for subsistence for them and their families.
EWA first got involved with this site after we received a
phone call that children were riding their bikes around the
disposal areas in the rear of the property and a truck driving
school was operating at one of the most contaminated areas,
creating a toxic dust cloud that moved through the adjacent
community. Although owners, elected officials and regulators
all knew that the area was highly contaminated, no one seemed
willing to take the lead.
After 21 years, after the EPA first got to the site, the
scope of the contamination remains staggering. They have
buildings on site where people are working inside these
buildings, including women of child-bearing age, where there is
dust with high levels of PCBs, lead and other chemicals. The
EPA calculated the hazard index for the PCBs at about 150. To
give you an idea what that means, at one they have to take an
action. But they are allowing people to work in these
buildings.
Local families continue to catch the fish adjacent to the
site. Children continue to trespass on the site. The
groundwater remains highly contaminated. Homes around the site
still contain unacceptable levels of PCBs and require
additional testing. There are day care centers that have PCBs
as well.
Rather than waiting indefinitely for the EPA's next action,
we tested the Bound Brook and we found TCE in the surface water
downstream from the site at over 200 times the New Jersey
surface water criteria. While EPA maintains that the cleanup is
moving forward, this illusion is just a house of cards ready to
collapse. The Agency is making a promise they can't deliver.
The remediation of the onsite soils at the site alone are
going to cost $90 million to $100 million. The PRPs have
already told the EPA that they don't have the money. So where
is the EPA going to come up with the money for the cleanup?
They are saying it is going to start this fall. They haven't
told us yet where this $100 million is going to come from.
The ATSDR, their sister Agency, and EPA, are allowing
people to continue to work in these buildings, instead of doing
a simple measure which would vacuum them out or clean the dust
out of them and protect public health. EPA's lone action,
which--this is the most shocking--they told workers the way to
protect their health is to wash their hands and wash their feet
before they go home, and then provide no insight to make sure
that is done.
I know my time is short, I know we are running out of time
here as well. But while we look at a vast array of
environmental problems, like global warming and over-
development, we must not forget another inconvenient truth:
without the Superfund tax there will be no funding to clean up
the sites like Cornell-Dubilier. I would invite all the
Senators who haven't been to a Superfund site to come out and
visit one either in New Jersey or in their own community.
Thank you.
Senator Thune. Thank you, Mr. Spiegel.
I have a question which I will, in deference to my
colleagues who have a high level of interest in this, submit
for the record.
Senator Lautenberg, you are recognized.
Senator Lautenberg. You are very kind, Mr. Chairman, I
appreciate it greatly.
I would ask two questions, one of Mr. Steinberg. As I read
your testimony and listened carefully to what you said, you
said the project you represent regards Superfund as a mature
program that has largely accomplished its goal. I ask you, if
you were in a theater and someone screamed fire and you saw the
flames, but half of the people got out, would you say it was a
successful evacuation?
Mr. Steinberg. I would be concerned, Senator.
Senator Lautenberg. Oh, I am glad. I am glad you said that.
Because to suggest that the mission is largely accomplished, I
would tell you, if you want to move to 1 of 19 places in New
Jersey, very cheap real estate near these Superfund sites, you
could bring your family there and live there, expose your
children.
Bob Spiegel is someone who is an expert because he has been
hands-on, working, pushing, cajoling, you name it, to get a
couple of sites cleaned up. One of them is a now infamous site
that took place in Ringwood, NJ, I didn't hear whether you
mentioned it in your testimony.
Mr. Spiegel. It was in my testimony but I didn't have time
to talk about it.
Senator Lautenberg. They said that the site was cleaned up
and it was closed off. What happened, please? Tell us very
briefly if you can.
Mr. Spiegel. Well, this really goes to speak to the heart
of why we need adequate funding. The Ringwood Mine Superfund
site is a site where the Ramapough-Lenape Indian Nation has
probably been poisoned as a result of the Ford Motor Company's
dumping of toxic paint sludge throughout the community. EPA
originally listed this as a site and de-listed it without
properly cleaning it up.
What they basically did was allowed the polluter, Ford
Motor Company, to come in, do the cleanup, submit the paperwork
and then essentially walk away and de-list the site. As a
matter of fact, this site is going to be the first site in the
United States to be relisted, because of the amount of toxic
waste that was dumped.
One of the biggest problems that we see with the lack of
funding is, it takes away the EPA's hammer. When I say the
EPA's hammer, right now they have the treble damages where they
can go out, do a cleanup and then collect triple damages to a
polluter. That is why we have had 70 percent of the polluters
step up to the plate and do the work, because they know that if
they didn't, EPA had the ability to go in, do the cleanup and
then recover costs.
Well, that is not there any more. The polluters all know
that EPA is not going to step in and do the cleanup, because
they don't have the funds. How are they going to step in and do
$100 million cleanups? They are not. As such, the processes
have slowed down, the cleanups are less comprehensive and there
is more interim measures, I'm sorry, no interim measures done
at sites, because EPA is afraid they will lose their places in
the line. At least in Region II we have seen a very big
slowdown in interim measures, because EPA tells us privately
they don't want to lose their place in line for funding, even
though they know that the funding is scarce.
So the site in Ringwood really speaks to a lot of troubling
issues. As a matter of fact, yesterday at this time I was up in
Ringwood with Bob Degroot and his wife, with their grandkids,
pulling up toxic sludge out of their backyard where their kids
play. It is something, if you don't see it, it is easy to just
dismiss it. Thank you.
Senator Thune. Senator Boxer.
Senator Boxer. Two brief questions. Mr. Steinberg, I found
your testimony to be just--I won't characterize it. I find it
unbelievable. The first thing you say is the Superfund program
has done most of its work. I think Senator Lautenberg pointed
that out, so I won't harp on that.
But then you say, don't do oversight, and now we hear from
Mr. Spiegel that without oversight, we might have these sites
listed again.
Mr. Steinberg. To be clear, Senator, I am not suggesting
that oversight is unnecessary. I am suggesting what EPA itself
admitted 10 years ago, which is that far too much of their
Superfund dollars go to oversight of PRPs.
Senator Boxer. OK, so you think there should be oversight,
but not as much oversight?
Mr. Steinberg. Correct.
Senator Boxer. OK. Who do you represent today?
Mr. Steinberg. I am here today for the Superfund
Settlements Project, Senator.
Senator Boxer. Who pays for that?
Mr. Steinberg. It is an association of eight companies, and
our members are listed in my prepared statement.
Senator Boxer. OK. Are they polluters?
Mr. Steinberg. They each have a number of Superfund sites
that they are involved in cleaning up.
Senator Boxer. OK, well, that puts it in context.
Doctor, would you tell us please, I cannot thank you enough
for your testimony and for the work you do. Because children,
that's it for me. If we can't come around and all of us say, it
is our job to protect them, we have failed as human beings, let
alone Government officials. So you are doing this every day.
What are the effects--you said something really frightening,
that we may see that there is not as long a life expectancy
among our children as we had because of exposure to toxics. Am
I saying it correctly?
Dr. Trasande. Senator, we are facing an epidemic of chronic
disease in childhood. A vast array of chronic diseases are on
the rise in American children and a large number of those
chronic disease have their origins in environmental exposures.
Senator Boxer. OK. I also noted the other day, with shock,
to see an article that our own life expectancy in this country
has fallen way below where it used to be. I want to get that
information put into the record if I might. I don't have it
here, but it is just sinking in terms of the world.
So, we don't know why everything is happening, but
certainly you have raised an alarm. Could you tell us what
impacts you have seen from these toxins on our children, the
lead, the arsenic, the PCB? What happens to children, in
graphic terms, what happens to children when they have this
exposure.
Dr. Trasande. Senator, there is what we know and much of
what we don't know and need to learn more. But what we know is
unfortunately quite frightening. We learned first 100 years ago
with lead that lead caused children to have seizures, coma. Now
at lower levels, we have found that children were suffering
loss of IQ, behavioral problems and other neuro-developmental
problems from lead exposure.
Unfortunately, that was just the tip of the iceberg. I
can't say that we have gotten much deeper into understanding
the effects of other chemicals.
Senator Boxer. And mercury? What does that do?
Dr. Trasande. Methyl mercury toxicity has affected on the
order of 300,000 children in the 2,000 U.S. birth cohort,
costing our Nation $8.7 billion annually in lost economic
productivity.
Senator Boxer. $8.7 billion lost?
Dr. Trasande. Yes.
Senator Boxer. And what does it do, though, to kids?
Dr. Trasande. Methyl mercury is ingested by women, it
enters the bloodstream, it then crosses the placenta and then
causes brain damage during the prenatal period.
Senator Boxer. Brain damaged kids. And then PCBs?
Dr. Trasande. PCBs also cause brain damage through a number
of mechanisms. Most especially the concern is that it may also
displace thyroid hormone, which is so important for prenatal
brain development.
Senator Boxer. OK. Well, Mr. Chairman, I will stop here.
You know where I am coming from on this, it is not surprising
to you, because you have known me for years. But here is the
thing. When we talk about these Superfund cleanups, we are
talking about protecting our children, our families and our
communities. I think a lot of it gets lost in these memos that
are marked privileged, where people are just told, give me the
cheapest thing we can get away with, don't fess up to what we
need to do.
This whole baloney we hear that you can't answer the
question if you have more money you could cleanup sites,
Senator Lautenberg has a document that is not privileged where
that is stated clearly, in many sites after sites after sites.
Yes, if we had more funding, we'd do this.
So what I would love to have is an honest debate about
this. In other words, if we want to say it is not a priority,
that's OK, let's have that debate. I am willing to engage in
it. But let's not hide information. Let's not have this
committee decide that the members of the public don't deserve
to know.
I will say this, Mr. Chairman, and I know you are a
reasonable person to work with, and I appreciate your allowing
us to discuss these documents, although we didn't name them and
identify them, we are going to pursue this with Chairman
Inhofe, the Democrats. I don't know about you and the rest of
my colleagues, but the Democrats that I have talked to are
intent upon getting these documents out in the public. We are
just going to make the fight. If we have to go all the way to
wherever we have to go, we will do it.
But this is a Government of, by and for the people. If the
people don't know information that they should know, it is not
a national security question. As far as I can tell, by looking
at these documents, a lot of them don't even refer to cases,
they are nothing to do with it. It seems like it is being
hidden from the public because of political reasons. I can't
think of anything else.
So I am going to work--I hope we can work together on this.
If not, we will just have to debate it and see where we go. I
thank you so much for having this hearing. We haven't had this
in 4 years. I can kind of see why some people didn't want to
have for 4 years. I appreciate that we have had it.
Senator Thune. Thank you, Senator Boxer. I will alert
Chairman Inhofe that he will be hearing from you on that
subject, among other subjects.
Senator Jeffords. Mr. Chairman?
Senator Thune. Senator Jeffords.
Senator Jeffords. Dr. Trasande, thank you for reminding us
about the critical role of Superfund in preserving the health
of our Nation's children. In your written testimony, you
mentioned a stunning funding, that environmental pollutants
cost our Nation an estimated $55 billion annually. I would like
to enter this study into the record of today's hearing. Could
you give us a copy of that?
Dr. Trasande. I would be most happy to.
Senator Jeffords. Thank you. Dr. Trasande, could you please
elaborate on this study a little bit, tell us your concerns?
Dr. Trasande. Certainly. My mentor and the director of the
center, Dr. Philip Landrigan, led a study in 2002, published in
the Journal of the National Institute of Environmental Health
Perspectives, in which he looked at just four diseases for
which the evidence was strongest for the relationship between
environmental exposure and harm to children. Those are lead
poisoning, developmental disabilities, childhood cancer and
asthma.
They aggregated the economic costs of those diseases and
the total morbidity of those diseases, and they assigned a
conservative percentage to limit the percent of that cost that
could be attributed to the environment. That is where they came
up with the estimate of $55 billion annual cost to society.
Given what we don't know of the environmental exposures and
their role in children's health, it is likely that that number
is a gross underestimate.
Senator Jeffords. Mr. Steinberg, I understand you are
familiar with the U.S. Supreme Court case involving the ability
of private parties to seek contribution from other potential
responsible parties?
Mr. Steinberg. Yes, Senator.
Senator Jeffords. How has this ruling impacted the
willingness of private parties to voluntarily cleanup
contaminated property?
Mr. Steinberg. I think the Supreme Court ruling has to be
considered a setback in terms of the incentives for companies
to perform voluntary cleanups. Often what is required to begin
the cleanup process is for a company to sign up and agree to
clean up a site that a number of other companies also helped to
contaminate. So you sign up for 100 percent of the cleanup, and
you do that typically in the hope that you will eventually get
some equitable contribution down the road from the other
companies that helped or the other Government Agencies that
helped to create the mess.
What the Supreme Court has done is to make that much more
difficult. It is now much more uncertain whether the right of
contribution will ever be available. So companies have another
reason to stop and think before signing on to a new consent
decree for a new NPL site.
Senator Jeffords. Well, this concerns me, what you are
telling us. I hope that you will follow up, give us some help
in trying to see what we can do.
Mr. Steinberg. I would be glad to, Senator.
Senator Jeffords. Thank you.
Senator Thune. Thank you, Senator Jeffords. I appreciate
your asking that question. That is one also that it seems to me
at least we ought to be able to address. There ought to be a
way that legislatively we can provide a solution. We would look
forward to working with you and Senator Boxer and others to
make that happen.
I want to thank the panel for your testimony and for your
answers in response to the questions. It has been very
insightful. I would note, too, for the record, that the record
will be open for another 5 days for people who want to submit
additional testimony or questions. So with that, we will
adjourn.
Thank you.
[Whereupon, at 12:16 p.m., the subcommittee was adjourned.]
[Additional statements submitted for the record follow.]
Statement of Hon. James M. Jeffords, U.S. Senator from the
State of Vermont
Mr. Chairman, thank you for holding this hearing.
Superfund has successfully cleaned up thousands of toxic waste
sites and protected the health of millions of Americans. Thousands of
communities have benefited from short-term removal actions, and
remedies have been constructed at about 665 of the most contaminated
sites in the Nation.
In addition, fear of Superfund liability has prompted corporate
America to minimize its toxic waste generation and take extra care to
prevent waste mishandling. The Nation is healthier as a result.
Yet, our work is not done. Even today, the EPA estimates that one
in four Americans live within 3 miles of a Superfund site.
Approximately 600 sites remain on the National Priorities List, with
over 100 having ``human exposure not under control.''
Let me highlight four issues that must be confronted to ensure that
the Superfund program is effective in protecting public health.
First, we must fully fund Superfund, which has been on life support
in recent years. In real dollars, the program is operating with about
35 percent less money than it had in 1993. The result of chronic
underfunding is less cleanup. In Vermont alone, we have three sites
that have languished for years on the National Priorities List due to
insufficient funds. In this tight budget climate, the only way to fully
fund the Superfund program is to reinstate the ``polluter pays'' fees.
Second, we must make sure that companies that handle hazardous
substances set aside enough money to meet their cleanup obligations
before they cease operating. The EPA has yet to issue the regulations
required in 1980 to address this problem.
Third, a GAO Report I requested last year found that 83 percent of
recent Superfund remedies were designed to leave residual contamination
in place. Yet, the report found that controls to minimize future
exposure to this contamination were rarely properly implemented,
monitored, or enforced. If the EPA cannot resolve this problem,
cleanups at thousands of sites will need to be revisited.
Finally, the U.S. Supreme Court ruled last year that parties liable
under Superfund cannot sue other liable parties for contribution unless
they themselves have been sued by the Government. The result of this
ruling is confusion and, I fear, fewer voluntary cleanups. A wide range
of stakeholders, including major corporations, environmental groups,
and the National Governors Association have called on Congress to
overturn this decision. I hope we are able to do so before this
Congress adjourns.
Again, I thank the Chairman for holding this hearing.
__________
Statement of Hon. Joseph I. Lieberman, U.S. Senator from the
State of Connecticut
Thank you Mr. Chairman. Contaminated industrial sites in this
country continue to harm our children, our families, and our
communities. I am disturbed by the mounting evidence that children are
especially vulnerable to suffering brain damage and malignant disease
as a result of exposure to the chemicals still found at these polluted
sites. The Center for Children's Health and the Environment at the
Mount Sinai School of Medicine points out that 3 to 4 million children
and adolescents live within 1 mile of a Superfund site.
EPA concedes that there is current, actual human exposure to
hazardous contaminants at two sites in my State:
In Stratford, CT, wastes containing lead, asbestos, and PCBs are
found at 30 locations, including a residential parcel and a community
park. Groundwater contaminated with volatile organic compounds flows
beneath 120 homes in the town. Indoor air testing has confirmed
probable intrusion of those compounds unto the basements of those
homes.
In Durham, CT, 80 houses abut and surround a contaminated
industrial site.
Children live in approximately 30 of those homes. All of the homes,
in addition to three churches and a school, lie within the lateral
extent of the plume of contaminated groundwater that extends from the
industrial site. All of the buildings in the area get their water from
wells.
Both of these sites are in the Superfund pipeline, and I deeply
appreciate the ongoing work of dedicated EPA employees, State
employees, and neighborhood activists to minimize harmful exposure and
to clean up the waste. But the people doing that vital work need
adequate funding. They are unlikely to get adequate funding if the
entire Superfund program is under-funded. I believe that if the
Superfund program is under-funded, the responsible officials at the
U.S. EPA have an obligation to own up to that fact, so Congress can do
something about it. Moreover, I believe the obligation is a moral one,
because the health of children is at stake.
I am concerned, then, over indications that EPA is not divulging a
significant inadequacy in this vital program's funding. I would like to
rely on EPA's assurances, because I have tremendous respect for the
expertise and dedication of the Agency's career employees. But I have
seen enough to make me suspect that whenever a senior EPA official
tells Congress that Superfund does not need increased funding, career
EPA employees shake their heads in disbelief and dismay.
As Resources for the Future points out, annual appropriations for
the Superfund Program have not kept pace with inflation. In fact, the
program's Fiscal Year 2005 appropriation of $1.2 billion represents a
40 percent decrease in purchasing power when compared with the Fiscal
Year 1987 appropriation of $1.4 billions. Meanwhile, as EPA
acknowledges, highly complex and expensive mega-sites make up an
increasing percentage of the program's cleanup burden.
As the tension has increased between reality and EPA's insistence
that Superfund is adequately funded, EPA management has made less and
less in the way of program details available to the public. That
secrecy has fostered a suspicion that, in certain instances, sites have
been allowed to progress through the Superfund pipeline even though
their cleanup has not met the standards to which we can and must hold
ourselves in order to protect Americans.
So I am proud to cosponsor Senator Boxer's bill to reinstate the
polluter fee, which is justified and necessary to replenish the
Superfund Trust Fund. As a government, we owe that to the children of
Stratford, Durham, and countless other communities across the country.
Thank you, Mr. Chairman.
__________
Statement of Susan Parker Bodine, Assistant Administrator, Office of
Solid Waste and Emergency Response, Environmental Protection Agency
Good morning Mr. Chairman and members of the subcommittee. I am
Susan Bodine, Assistant Administrator of the Office of Solid Waste and
Emergency Response, Environmental Protection Agency. Thank you for the
opportunity to appear today to discuss the Superfund program: the
tremendous progress that has been made, the challenges that remain, and
what EPA is doing to address those challenges.
the superfund program
As the subcommittee knows, the Superfund program was established
under the Comprehensive Environmental Response, Compensation, and
Liability Act (CERCLA or Superfund), which Congress passed in December
1980 to respond to citizen concerns over Love Canal and other toxic
waste sites. Through the Superfund program, the Environmental
Protection Agency (EPA) and its partners address abandoned,
accidentally spilled, illegally dumped or intentionally released
hazardous substances that pose current or future threats to human
health and the environment.
The Superfund program has been very successful in protecting human
health and the environment. To date, EPA and its State and Tribal
partners have assessed 46,515 sites; the removal program has conducted
8,948 removals at 6,415 sites; and 1,612 sites have been proposed to,
listed on, or deleted from the National Priorities List (NPL). Of the
1,553 final or deleted sites, 95 percent have begun construction
activity, have been completed, or have been deleted from the NPL.
Remedy construction is complete at 970 sites. EPA expects the Superfund
program to complete cleanup construction at an additional 40 Superfund
sites in fiscal year 2006.
EPA also has been very successful in leveraging Federal dollars to
secure private party cleanups. In fiscal year 2005, EPA secured
commitments from Potentially Responsible Parties (PRPs) to carry out
cleanups worth more than $857 million and to reimburse EPA for more
than $248 million in costs. The cumulative value of private party
cleanup commitments and cost recovery settlements is more than $24
billion. EPA's enforcement efforts have allowed the program to focus
the Agency's appropriated funds on sites where PRPs cannot be
identified or are unable to pay for or conduct the cleanup.
To fully understand the status of the Superfund program today, it
is important to understand the process for cleaning up toxic waste
sites, as well as how the Superfund program has evolved over the past
25 years.
The Superfund Pipeline
To achieve protection of human health and the environment, the
Superfund program takes each site through a process of investigation,
study, and finally cleanup, commonly referred to as the ``Superfund
pipeline.''
The Superfund cleanup process begins with site discovery or
notification to EPA of possible releases of hazardous substances. Sites
are discovered by various parties, including citizens, but the majority
of sites are referred to EPA by State agencies. Once discovered, sites
are prescreened. For example, in 2004, approximately 80 percent of
sites were screened out because they posed little or no potential
threat to human health or the environment. The remaining 20 percent of
the sites were entered into the Comprehensive Environmental Response,
Compensation, and Liability Information System (CERCLIS). Next, EPA or
the State evaluated the potential for a release of hazardous substances
from these sites through a preliminary investigation. This stage
screened out 65 percent of the remaining sites. At the sites still
remaining, EPA or the State conducted a site assessment. Another 64
percent were screened out at this stage, and those that were not,
received additional assessment (screening out another 13 percent of the
sites that reach this stage). The data from a site assessment are used
to evaluate a site under the Hazard Ranking System (HRS). Sites that
score above 28.5 under this system are eligible for NPL listing and, if
listed, become eligible for remedial funding.
For the sites that are listed on the NPL, EPA or PRPs, then conduct
further investigation to determine the most appropriate remedy for the
site (called the remedial investigation/feasibility study). This phase
culminates with a record of decision, selecting a remedy for the site,
following public notice and comment. EPA, or cooperating PRPs, then
design and construct the remedial action. Following completion of a
remedial action, often operation and maintenance activities often must
continue.
In addition, at any point during the site investigation process,
EPA may conduct a removal action at a site, to address an emergency
situation, an immediate threat to public health, or to jump-start a
remedy with an interim action. For example, EPA has provided
alternative water supplies to more than 2 million people to cutoff
exposure to contaminated water. During the first half of fiscal year
2006, EPA has conducted removal actions at 82 NPL sites.
EPA also conducts searches for PRPs during this process, and takes
action to ensure cleanup work is conducted or paid for by those PRPs,
rather than by EPA using appropriated dollars. Finally, sites that are
screened out during the site investigation process are considered
eligible response sites, which are sites that are eligible for funding
under EPA's Brownfields Program.
Superfund Program's Early Years
In the 1980s, Superfund was a new program that was just getting
started. EPA issued regulations to implement the Superfund program in
July 1982, by revising the National Contingency Plan, which was first
promulgated under section 311 of the Clean Water Act, to incorporate
the Superfund program requirements. In September 1983, EPA promulgated
the first National Priorities List (NPL), identifying 406 sites as
national priorities among the known releases or threatened releases of
hazardous substances, pollutants, or contaminants throughout the United
States.
From listing a site on the NPL to the completion of the
constructing a remedy, the cleanup process takes more than 10 years, on
average. As is discussed later, simple sites may take less time, but
more complex sites take considerably longer. As a result, during the
early days of the Superfund program, most of the activity
understandably centered on the investigation and study phase of the
Superfund pipeline.
A Maturing Program
Progress continued throughout the 1980s. However, very few sites
were cleaned up. In fact, before 1991, remedies were completed at only
49 sites, 16 of which required no construction. As a result, there was
a public perception that the Superfund program was addressing sites too
slowly. EPA addressed these issues with two initiatives. First, to
leverage Federal dollars and increase the number of sites being cleaned
up, EPA adopted an ``enforcement first'' policy in 1991 to require PRPs
to perform cleanups, rather than using appropriated dollars and seeking
cost recovery. Second, to help explain to the public the progress that
the Superfund program had made, in 1993 EPA created the category called
``construction completion,'' and began tracking and reporting the
number of Superfund sites where the physical construction of the
cleanup remedy was finished.
During the 1990s, many sites that had been placed on the NPL in the
1980s finally moved through the Superfund pipeline. Remedial
investigations and feasibility studies were completed. Records of
decision selecting remedies were issued. Cleanup remedies were
constructed. Between 1991 and 1995, 297 additional sites reached
construction completion (33 of which were determined not to need
construction).
Despite this progress, the program continued to be criticized that
the pace of cleanup was too slow. In response, EPA began aggressively
managing the program to achieve construction completions. Between 1996
and 2000, 411 sites achieved the construction completion stage of the
pipeline (16 of which were determined not to need construction).
However, 162 of these sites cost EPA less than $1 million per site to
achieve construction completion (including both fund lead and PRP lead
sites). An additional 165 cost EPA less than $5 million. Thus, while
the program was achieving on average 82 construction completions per
year during this timeframe, the vast majority of those sites were
smaller, low cost sites, or were PRP sites with low EPA oversight
costs.
Between 2001 and 2005, an additional 209 sites have achieved the
construction completion phase. If one looked only at construction
completions, one could conclude that the pace of cleanup in this
country declined. This would be untrue. While the number of low cost
sites reaching construction completion declined, the number of costly
and complex sites that have reached construction completion has
increased. Moreover, cleanup has progressed significantly at the
remaining costly, complex sites.
In addition, cleanup of low cost sites is continuing, just not as
often through listing on the NPL. During the late 1990s, a fundamental
shift in how sites are cleaned up occurred as a result of the
development and growth of State cleanup programs and State brownfields
programs. Today, less costly and less complex sites, and sites with
cooperative PRPs, are much more likely to be addressed through a State
cleanup or voluntary cleanup program or a State brownfields program
than through the Federal Superfund program.
This trend was not unexpected. In fact, in November 1998, the
General Accountability Office (GAO, then called the General Accounting
Office) surveyed States and EPA regions regarding all sites that were
then in CERCLIS and determined that, of the 3036 sites in the active
CERCLIS data base in 1997, EPA or a State program identified only 232
sites as potential candidates for NPL listing. The actual number of
sites listed after 1997 is 172 and an additional 59 sites have been
proposed to the NPL, totaling 231.
Working with our State partners, EPA Regions now try to identify
the most appropriate program to address sites that require cleanup.
This may be a State program; it may be the Resource Conservation and
Recovery Act (RCRA) corrective action program; it may be the Superfund
removal program or the Superfund remedial program and listing on the
NPL. As a result, cleanup is continuing through a variety of programs
and the NPL has become more of a list of sites that need Federal
funding or Federal expertise than a list of all uncontrolled toxic
waste sites.
The NPL Universe Today
At this point in the history of the Superfund program, the universe
of sites not yet complete and the type of sites being listed on the NPL
are very different from the universe of sites on the list 10 years ago.
EPA has completed work at many low cost sites that were listed in the
past, and new sites in this category are being addressed through other
programs. The remaining sites are more complex.
As can be expected given the Superfund pipeline, 893 of the 970
sites that have reached construction completion to date were listed
before 1991. At 61 percent of these sites, only one, or in some cases
no remedy required construction. In Superfund parlance, these sites had
only one ``operable unit'' (OU).
It is important to remember that many of the sites that have not
reached the construction completion stage have been part of the
Superfund program for many years, but are large, complex sites that
simply take more time to address. Of the 583 sites that have not
reached the construction completion state, 318 (54 percent) also were
listed before 1991. That means the Superfund program has been
addressing these sites for over 15 years, making progress while dealing
with technically challenging issues. 367 (63 percent) of the remaining
583 sites have more than one OU. 189 of the remaining 583 sites have
been identified as sites where the remedy costs will have or have the
potential to exceed $50 million (32 percent). In Superfund parlance,
these are called ``mega-sites.''
Management of Current Superfund Program
Given the complexity of many sites that remain on the NPL, EPA must
carefully manage the program. First, management attention and resources
are given to the sites that present the greatest risk. Second, actions
are taken to protect human health and the environment while remedies to
achieve long-term protection are developed and constructed. Third, to
ensure efficiency in contracting, the largest sites are managed as
long-term construction projects. Fourth, to turn a community blight
into a community asset, EPA looks for land revitalization opportunities
when developing remedies. Fifth, with so many sites reaching the
construction completion stage, attention is now focused on the
achievement and maintenance of long-term protection at these sites.
Finally, EPA is taking steps to ensure that all Superfund resources are
being put to their highest and best use.
Prioritizing Sites Based on Risk
To help EPA manage its funding decisions in a risk-based manner,
sites that are ready to begin construction and will be paid for using
EPA's appropriated funding are subject to a rigorous prioritization
process. EPA's National Risk-Based Priority Panel reviews new cleanup
construction projects as they become ready for EPA funding. The Panel
prioritizes the projects based on three factors: protection of human
health, protection from significant environmental threats, and
potential threats based upon site conditions at the time of review. A
number of factors are then used to weigh funding priorities among the
sites including: human exposure risk, contaminant characteristics and
stability, significant environmental risk, and program management
considerations. The Panel is composed of national EPA Superfund program
experts from both Regional and Headquarters offices.
Addressing Immediate Risks Through Interim Actions
Even though selection, design and construction of what are often
multiple remedies at a site may take many years, EPA can and does take
interim actions to address immediate risks to human health. EPA has
taken removal actions at 58 percent of the sites listed on the NPL. For
example, EPA did not wait to list the Omaha Lead site on the NPL before
taking action to reduce the risk posed to residential communities. EPA
started cleanup work in 1999 using Superfund Removal authorities. The
site was listed on the NPL in 2003, and using an expedited interim
remedy process, is on schedule to have completed cleanups of more than
2000 residential yards by the end of fiscal year 2006.
EPA is developing tools to identify and improve the management of
risks at ongoing NPL cleanups. Beginning in 2002, EPA applied the Human
Exposure Under Control Environmental Indicator to document the interim
progress made toward achieving long-term human health protection by
controlling unacceptable human exposures at NPL sites. This measure
tracks the status of whether human health exposures are controlled
under current site use. EPA considers human exposure to be not under
control if, under current site use, there are complete pathways for
human exposure to contaminants at levels that present an unacceptable
risk. EPA does not require documentation of actual exposure when
applying this measure. A complete exposure pathway is sufficient.
As the subcommittee knows, the list of sites where human exposure
is not under control is dynamic. Over time, sites are removed and new
sites are added, depending on changed site conditions or new
information. Since becoming Assistant Administrator, I have made it a
priority to improve the quality of the data supporting this
environmental indicator so that it can be used to prioritize and manage
the program.
Managing ``Mega-Sites''
The largest and most complex Superfund sites must be managed as
multi-year construction projects. This is particularly true of the
``mega-sites'' with estimated costs over $50 million. EPA funded
``mega-sites'' consume the majority of our resources. In fiscal year
2005, approximately 50 percent of the Superfund obligations for long-
term, on-going cleanup work were committed to just 11 sites. The Agency
expects to have a similar situation this year. For this reason, EPA has
developed long-term funding plans for a number of complex, costly,
sites. These funding plans are based on the construction plans for the
sites, and allow EPA to enter into contracts that provide for efficient
use of resources.
Land Revitalization
The land revitalization initiative, launched in April 2003,
includes all of EPA's cleanup programs as well as partners at all
levels of government and in the private and non-profit sectors. The
goal of land revitalization is to restore our Nation's contaminated
land resources and enable America's communities to safely return these
properties to beneficial economic, ecological, and societal uses. EPA
is ensuring that cleanup programs protect public health, welfare, and
the environment; and also ensuring that the anticipated future uses of
these lands are fully considered in cleanup decisions.
Experience has taught us that one of the best ways to clean up
contaminated sites and to address blighted properties in communities is
to expressly consider the future uses of the land. The country has
accepted the economic and ecological importance of recycling various
consumer products--and our understanding of sound resource management
must now also embrace the recycling of contaminated properties.
Post-Construction Completion Strategy
With so many sites now at the construction completion stage, the
Superfund program also must focus attention and resources to address
post-construction activities to ensure that remedies remain protective
over the long term and sites can be returned to productive use.
In October 2005, to ensure that completed sites remain protective
of human heath and the environment, EPA published its Post Construction
Completion Strategy. The strategy was developed to improve site
operations and maintenance, remedy performance tracking, institutional
control implementation and tracking, and reducing barriers to
beneficial site reuse. Under this strategy, EPA is ensuring that 5-year
reviews are completed and any discrepancies identified in the reviews
are acted upon. EPA also is developing an Institutional Control
Tracking System, to document and make public the institutional controls
that are needed to ensure long-term protectiveness.
In addition, EPA is developing a new post-construction completion
measure for the Superfund program as part of its fiscal year 2006-2011
Strategic Plan under the Government Performance and Results Act. This
new measure will track and target the number of sites that have been
made ``ready for reuse'' by the Superfund program. These are sites that
have achieved the cleanup goals and have implemented the institutional
controls that ensure long-term protection and allow reuse of land.
EPA already is collecting and will continue to collect and report
data on the number of acres that are ``ready for reuse'' at Superfund
sites, even if the entire site is not construction complete, and is
working on developing similar information for all of EPA's cleanup
programs. Both the new GPRA measure and the ongoing information on
acres made ``ready for reuse'' demonstrate how cleaning up waste sites
to protect human health and the environment can produce the
accompanying benefit of returning properties to beneficial reuse.
Managing Superfund Resources
EPA is undertaking a number of actions to ensure that Superfund
resources are not expended on unnecessary activities and are available
to carry out site cleanup work. For example, EPA has:
Initiated a workforce analysis to determine if staff
resources should be reallocated
Started benchmarking studies of EPA performance
Shared best practices among the EPA Regions
Established the Contaminated Sediments Technical Advisory
Group, comprised of Agency experts, to provide technical support to
Regions with potentially high cost contaminated sediment sites
Increased the number of sites addressed by the Remedy
Review Board, which reviews high cost cleanup remedies, by lowering the
threshold cost of remedies that will be reviewed from $30 million to
$25 million
Continued to optimize long-term groundwater remedies in
order to reduce operating costs and restore potential drinking water
sources more efficiently
Aggressively deobligated funds from contracts, grants,
cooperative agreements and interagency agreements, resulting in more
than $600 million for new cleanup activities over the past five fiscal
years.
These efforts are, in part, a result of several studies, including
an internal review of the Superfund program, known as the 120-Day
Study, which identified opportunities for the Agency to put its
resources to better use.
emergency response
EPA's Emergency Response activities are another facet of the
Superfund program. The Emergency Response program provides national
leadership to prevent, prepare for, and respond to human health and
environmental emergencies, including terrorist events. EPA7s Superfund
Emergency Response program was actively involved in the response to the
events of 9/11 and the subsequent anthrax attacks, and, most recently,
in the response to Hurricanes Katrina and Rita.
Beginning on August 25, 2005, to prepare for Hurricane Katrina, EPA
deployed personnel to the Federal Emergency Management Agency (FEMA)
National Response Coordination Center and sent On-Scene Coordinators
(OSCs) to the Florida, Louisiana, Alabama and Mississippi Emergency
Operations Centers. The OSC is the Federal official responsible for
monitoring or directing responses to all oil spills and hazardous
substance releases reported to the Federal Government. EPA sent
additional personnel to the affected areas as soon as travel into the
region was possible. In anticipation of Hurricane Rita, EPA also
deployed response experts to the multi-agency Regional Response
Coordination Center in Denton, TX on September 20. Nearly 400 EPA staff
and contractors are continuing to assist with recovery in the Gulf
Coast. EPA's hurricane response related activities are being funded by
FEMA under a mission assignment pursuant to the President's disaster
declarations for the Gulf Coast.
EPA is the lead Federal Agency under the National Response Plan for
Emergency Support Function (ESF) No. 10, which addresses oil and
hazardous materials, and works with other agencies to provide support
for a number of other Emergency Support Functions, including ESF No. 3,
which addresses Public Works and Engineering. Specifically, EPA's
responsibilities include preventing, minimizing, or mitigating threats
to public health, welfare, or the environment caused by the actual or
potential releases of hazardous materials; testing the quality of flood
waters, sediments, and air; and assisting with the restoration of the
drinking and waste water infrastructure. Also under ESF No. 3, the
Agency works with the U.S. Army Corps of Engineers to address final
disposition of the large volumes of debris from homes, buildings and
other structures damaged by Hurricane Katrina. EPA, in coordination
with the States, is providing information to both workers and the
public about sampling test results, as well as assisting communities
with debris disposal and hazardous waste issues.
conclusion
Administrator Johnson and the Bush administration are fully
committed to Superfund's mission, protecting human health and the
environment by cleaning up our Nation's worst toxic waste sites. The
Superfund program has produced significant accomplishments and EPA is
continuing its efforts to manage the program efficiently and
effectively in order to protect human health and the environment, and
provide opportunities for reuse and redevelopment to communities across
the country.
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Statement of Katherine N. Probst,* Senior Fellow and Director, Risk,
Resource, and Environmental Management, Resources for the Future
Mr. Chairman and distinguished members of the subcommittee, thank
you for inviting me to testify before you today about the critical
issues facing the Superfund program. I am a Senior Fellow at Resources
for the Future (RFF) and the director of RFF's Risk, Resource, and
Environmental Management Division.
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*The views expressed herein are those of the author only, and do
not represent the views of the staff, management, or Board of Directors
of Resources for the Future.
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RFF is an independent, nonprofit 501 (c)(3) research and
educational organization located here in Washington, DC. For over 50
years, researchers at RFF have been conducting research on a wide
variety of issues related to energy, natural resources, and the
environment. RFF does not lobby and does not take positions on
legislation or regulations as an organization. The views I present
today are mine alone, and do not reflect the opinions of the staff,
management, or Board of Directors of Resources for the Future. I will
try to keep my oral remarks brief, and I would appreciate it if you
would include my full written statement in the record.
For more than 15 years, I have conducted research on issues related
to the evaluation, management, and improvement of the Superfund
program. I was the lead author of a Report to Congress, issued by RFF
in July of 2001, titled Superfund's Future: What Will It Cost? which
included estimates of the funding that would be needed by EPA from
fiscal year 2000 through fiscal year 2009 to fully implement the
program, assuming no change in the program's policies or regulations. I
was also the lead author of a more recent report, Success for
Superfund: A New Approach for Keeping Score, published by RFF in April
2004. In this report, I recommended that EPA develop a one-page
``report card'' for each site on the National Priorities List (NPL)
that would include key information not only on site progress, but also
on major site contaminants and other key site attributes. I have also
directed a number of studies about other aspects of the Superfund
program as well as studies of ways to improve the cleanup of sites in
the nuclear weapons complex, which, as you know, are the responsibility
of the Department of Energy.
In all of theses studies, in addition to addressing key policy
issues, I have made specific suggestions for improving the data and
management systems used by the Superfund program, an issue near and
dear to my heart.
The subcommittee asked for comments regarding oversight of the
Superfund program. I would like to first very briefly summarize the
status of the program as it relates to progress at sites on the NPL and
then focus on four key issues:
1. Cleanup funding;
2. Monitoring and enforcing institutional controls;
3. Improved data and public information; and
4. The need for independent evaluation.
a snapshot of cleanup at npl sites
After a site is listed on the NPL, each site is either addressed as
a whole or divided into multiple projects. Each major project goes
through a number of steps: the site is characterized, alternative
remedies are evaluated, a remedy is selected, and then a detailed
remedy design is prepared. After that, the site (or project) enters
what is called the ``construction'' phase, which is the actual
implementation of the remedy. When all remedies at a site (some sites
have multiple remedies) have been fully implemented--that is, when all
the construction and engineering work is done--the site is deemed
``construction complete.'' Construction complete is one of EPA's major
milestones for reporting individual site progress, and the progress of
the program as a whole. It is worth noting that just because a site is
categorized as ``construction complete'' does not mean that the cleanup
goals at the site have been achieved. And, as discussed in more detail
later in my testimony, at many sites where hazardous substances are
left on site at levels that preclude unrestricted use of the site,
restrictions on land, water, or groundwater use--referred to as
``institutional controls''--are required to ensure that people do not
come into contact with contamination remaining at the site.
As of the end of May 2006, there were 1,244 final sites on the NPL
(this number does not include ``proposed'' NPL sites, nor sites that
were once final NPL sites and have since been formally ``deleted'' from
the NPL.) Just over half of these sites (665) are construction
complete. That is the good news. The bad news is that the remaining 579
sites--or 47 percent--are not yet construction complete, which means
that the cost of site studies and remedies lies in the future and that
substantial additional funds will need to be appropriated to complete
cleanup activities at many of these sites. Most of these sites are in
the construction stage, but there are a large number where studies are
underway or have not yet begun, meaning that a sizable number of theses
sites are just beginning to make their way through the ``Superfund
pipeline.''
According to information available on EPA's Superfund Web site, a
large number of these sites still present some kind of current risk to
human health or the environment. Of the 579 final NPL sites that are
not construction complete, there are:
128 sites (22 percent) where human exposure is not under control,
and
192 sites (33 percent) where groundwater migration is not under
control.
Clearly, there is not enough information on the Superfund Web site
(a subject I return to later in my testimony) to know exactly what this
information means and how large the risks at these sites are, but it
does suggest that there is more critical work that needs to be done,
and in an expedited manner.
Although many would like to think that after 25 years of the
program's existence, we are nearing the end of the need for the
Superfund program, this appears to be wishful thinking. While fewer
sites have been listed in recent years than in the heyday of the
program, some of the new sites being added are large and complex, and
there are still a large number of ``old'' sites yet unfinished. Current
and future NPL sites need cleanup, attention, funding, and EPA and
congressional oversight.
Cleanup Funding: Coming Clean about What Lies Ahead
Since 1987, Superfund's annual appropriations have fluctuated from
a low of $1.1 billion in fiscal year 1988 to a high of $1.6 billion in
FYs 1991 and 1992, as shown in the figure below. In recent years, EPA
Superfund appropriations have been relatively constant at just under
$1.3 billion a year, at least in what are referred to as ``nominal
dollars.'' In constant 1987 dollars, however, the Superfund's program
spending power has decreased substantially since 1987, as also shown in
the figure below. The program's fiscal year 2005 appropriations of $1.2
billion are the equivalent of $820 million in constant 1987 dollars--a
40 percent decrease in purchasing power when compared with actual
fiscal year 1987 appropriations of $1.4 billion. Thus, the Superfund
program's real purchasing power has decreased dramatically at the same
time as large, complex, and expensive sites--often referred to as
``mega sites'' make up an increasing proportion of the program's
workload. It should come as no surprise that, as predicted in the July
2001 RFF Report to Congress--and documented by many subsequent reports
since then--there is a shortfall in funds needed for cleanup.
[GRAPHIC] [TIFF OMITTED] 42282.001
Over the past few years, the U.S. Government Accountability Office
and the EPA Office of Inspector General have clearly documented that
the Superfund program suffers from a funding shortfall and that EPA has
had to delay cleanup actions at NPL sites as a result. One solution to
this problem, of course, is to increase annual funding for the
Superfund program. In fact, in the past 2 years, the Administration has
included in the President's budget a request (although not with much
force) for an additional $150 million targeted specifically for cleanup
actions at NPL sites. This funding request most likely represents the
minimum, not the maximum shortfall, based on the work of RFF and other
independent organizations. Any funding increase by Congress should be
targeted specifically to clean up related activities.
If the needed funding is not forthcoming, however, it is critical
that EPA ``come clean'' about the implications of this shortfall on the
future pace of cleanup, and on progress at individual NPL sites. This
will only happen if Congress, either in oversight hearings such as this
one, or as part of the annual appropriations process, requires that EPA
identify on a site-by-site basis the specific funding shortfall for
each site on the NPL, and specify which sites will be delayed--and by
how much--if funding is not increased over current appropriations.
In addition, Congress should ask EPA, on an annual basis, to
present to this subcommittee and to the relevant appropriations
committees how much funding would be needed to ``fully fund'' cleanup,
assuming no change in current cleanup standards and policies. This is
exactly the charge that was given to RFF in the conference report that
accompanied the fiscal year 2000 VA-HUD independent agencies
appropriations bill. RFF was asked to conduct this study by
congressional staff because it was felt that EPA did not have the
credibility to do this work.
If there is still concern about EPA's credibility, the subcommittee
could require the report be subject to independent external peer review
(on an expedited basis) at all stages of the project (conceptual, first
set of results, final results). This would assure that the analysis and
assumptions are sound. Conversely, Congress could again request that
the Agency contract with an independent third-party for this
information. In addition, Congress should require that EPA develop a
reliable model for estimating future cleanup and other related costs
and update this model annually. In fact, EPA had just such a model,
called the ``outyear liability model,'' for many years, but it is now
defunct. It is critical for effective congressional oversight that EPA,
and Congress, know the estimated future costs of the Superfund program.
In this era of ever-scarcer Federal dollars, the Superfund program
also must take a hard look at its own budget, identify areas that are
not very productive, and reprogram funds wherever possible to
activities that are directly related to clean up. This does not mean
cutting the enforcement program, but it does mean examining the myriad
initiatives that have sprouted over the years to assess which ones are
truly worthwhile. These include everything from efforts to focus on
redevelopment of Superfund sites to efforts to stimulate new
technologies for cleanup. While almost all the initiatives sound good,
it is critical that their benefits and costs be evaluated to make sure
that the best use is being made of scarce Superfund dollars. While it
is unlikely that reprogramming from existing programs and initiatives
will release enough funds to address the cleanup shortfall, it is
important that the program be willing to undertake this kind of self-
reflection and put funds where they are most needed. There is little
appetite in many quarters for increased cleanup funding until EPA takes
a hard look at where current funds are going and makes needed
adjustments.
Monitoring and Enforcing Institutional Controls: Let's Get On With It!
Since the mid-1990s, researchers from RFF, the Environmental Law
Institute (ELI), and the University of Tennessee, among others, have
published a number of studies documenting the need for closer
monitoring and more active enforcement of institutional controls at
Superfund sites. Many in government, academia, and the private sector
have written about these issues as well. What has actually been
accomplished in the past 10 years? Well, a lot and not much.
In some ways, a lot has happened regarding institutional controls
(now fondly referred to as ``ICs''). A decade ago, few people in the
cleanup field even knew what institutional controls were, and even
fewer were concerned about them. Now there are frequent ICs meetings
and conferences, and various Web sites and other Internet resources
devoted to ICs, land use controls, long-term stewardship, call it what
you will. More importantly, after many long meetings and discussions, a
group of experts developed the Uniform Environmental Covenants Act
(UECA), which has been enacted or introduced in more than a dozen
States. This uniform law, once enacted, ensures that States would be
able to implement and enforce durable environmental covenants to
restrict land use. However, UECA will do nothing to solve the
institutional problem of assigning responsibility to a specific entity
to ensure that ICs are monitored regularly, or to clarify who will have
the responsibility for bringing enforcement actions when needed.
We appear to be no closer to what is really needed: reliable
information on ICs for all NPL sites and annual on-the-ground
inspections and enforcement of institutional controls. The Superfund
program still does not have a consistent and reliable approach to
tracking and monitoring ICs, which is critical to the protection of
public health and the environment at contaminated sites. More and more
contaminated site remedies rely on ICs to ensure protection of public
health and environment. EPA must make monitoring and enforcement of ICs
a top priority.
Ironically, the most recent major report on ICs by the U.S.
Government Accountability Office (Hazardous Waste Sites: Improved
Effectiveness of Controls at Sites Could Better Protect the Public,
GAO-05-163, January 28, 2005) reached many of the same conclusions as
the many prior studies conduced in the 1990s by RFF, ELI, and others.
GAO concluded that:
Institutional controls are increasingly part of Superfund
remedies and their effective implementation is critical in ensuring
protection of public health, that is, to limit exposure to
contamination that remains onsite even after a remedy has been
implemented.
There is often great uncertainty regarding what level of
government--local, State, or Federal--is responsible for monitoring
these restrictions on land, water, and groundwater use. And, of course,
without consistent monitoring, we don't really know if ICs are in place
and working.
Due to the nature of institutional controls, it is often
not clear what organization has the authority to enforce institutional
controls.
Currently available information suggests that for a non-
trivial number of sites, the institutional controls required to ensure
a remedy is protective are not in fact being fully implemented.
The real question is, why isn't EPA moving forward aggressively to
establish a robust monitoring and enforcement program now for ICs at
NPL sites, which is what is really needed?
So far, EPA's main response has been to focus its resources on
developing a complex (and much-delayed) data base to track
institutional controls and to issue a variety of guidance documents.
While these are positive actions, it is unclear whether we are any
closer to having reliable information on ICs at all NPL sites. It is
taking many years and untold dollars to get the data base up and
running, and the guidance documents suggest that EPA will rely on 5-
year reviews to monitor implementation of ICs.
Five years is a long time interval between IC inspections--to long
a time--when the issue is assuring compliance with land use and other
restrictions needed to protect public health. While guidance documents
are nice, and EPA can get them issued without going through the Office
of Management and Budget (OMB) and the White House, the reality is that
they ``do not have the force of law.''
Simply put, institutional controls ``work''' only when people know
about them and comply with them. Having restrictions on the use of
land, water, and groundwater only on paper is meaningless, unless these
controls are actively enforced and monitored. And, if the controls are
not enforced, the public can be at risk.
What then is to be done?
Ideally, EPA would make institutional controls part of the
regulatory framework governing Superfund cleanups. This would require
amending the National Oil and Hazardous Substances Pollution
Contingency Plan (NCP) to address how institutional controls should be
developed, monitored, and enforced. When the NCP was written, EPA's
policy analysts (and most of us on the outside) were focused on getting
remedies selected at Superfund sites. The NCP lays out very detailed
requirements, including provisions for public comment, on the process
that results in the selection of a site remedy. However, the NCP is
quite sparse in regard to regulatory requirements after that point. In
fact, even though ICs usually are not fully developed until after a
remedy is selected--typically as part of a settlement agreement--there
is no provision for public input on ICs, nor is EPA required to
maintain an administrative record after a remedy is chosen.
Given that ICs are a critical part of the effectiveness of many
remedies, there should be clear and consistent requirements for how ICs
are selected, monitored, and enforced that have the force of law. No
matter how difficult it might be to get the NCP amended, we have been
operating with the band-aid of IC guidance documents for long enough.
The recommendations I am making today are identical to those
included in a 1997 RFF report Linking Land Use and Superfund Cleanups
that I co-authored with colleagues Bob Hersh, Kris Wernstedt and Jan
Mazurek:
EPA should revise the National Contingency Plan (NCP)--the
regulatory blueprint for the Superfund program--to address the role of
land use in remedy selection, including incorporating the development
of institutional controls into the formal remedy selection process.
EPA should, in consultation with State and local
governments, develop a strategy (for eventual codification in the NCP)
to ensure effective long-term regulatory oversight of Superfund sites
where contamination remains at levels that present a risk to public
health after the remedy has been constructed and implemented.
Sadly, these recommendations are just as relevant today as when we
made them 9 years ago. If EPA does not move forward to amend the NCP,
EPA can still take action right now to implement a simple and
streamlined ICs tracking system that would give the Agency the
information it needs to find out if ICs are being complied with, and,
if they are not, to take the necessary follow-up action. There is
absolutely nothing that precludes EPA from doing this; all that is
needed is senior management direction and attention.
The first step is to implement a simple and straightforward ICs
tracking and compliance data base, available to all on EPA's web site.
We have ample evidence that the more complex the data base, the less
likely it is that the data in it will be reliable. The old adage ``keep
it simple stupid'' is still apt. After many years, and many hours of
work by EPA, consultants, and the input of many experts, we still don't
have a workable ICs tracking system that is up and running and
available to the public.
It is time, as economists are fond of saying, to forget about
``sunk costs'' and create a relatively simple ICs tracking system right
now. Such a tracking system could be up and running in 3 to 6 months if
it has the backing of senior management in the Office of Solid Waste
and Emergency Response.
To jump-start this process, I lay out below the kind of information
that should be collected by EPA for each site on the NPL that requires
institutional controls. This information should be accessible on the
EPA Web site.
What is the legal basis for the IC?
What specific kind of control is required?
Who is responsible for implementing the IC?
Has the IC been implemented, and if not, why?
Who is responsible for monitoring the IC?
When was the last time someone from EPA, the State, or one
of their contractors went to the site to see if the IC is being
complied with?
If it appears that the IC is not being implemented as
required, what steps have been taken to remedy the situation?
Is specific information about the nature of the IC
requirement and who to call if the IC is not being complied with for
individual sites readily available on all EPA Web sites?
This is just a preliminary list of information that needs to be
included in a simple ICs tracking system. EPA should, of course, review
and refine this set of questions and get input from both internal and
external experts. That said, I strongly recommend a very streamlined
data base with perhaps 10 to 15 pieces of critical information that
would give EPA, and the public, enough information to know what kinds
of ICs are required at each site and if they have been fully
implemented.
It is true my list of questions will not tell you everything you
ever wanted to know about ICs at a given site, but it will give EPA
management and the concerned public enough information to know if there
is a problem that requires attention. And, this kind of data base would
be relatively quick and inexpensive to develop, and easy to maintain.
Perhaps most importantly, the questions are simple enough that it
should be possible to have highly reliable information that can be
trusted. While other more sophisticated information may be required in
the future, this information should have been collected years ago, and
we need to start someplace.
After this initial assessment is completed, EPA needs to develop an
inspection strategy to ensure that ICs are monitored at least once a
year and are implemented as required. The safety of those living near
these sites depends on this, and it is hard to see what could be more
important for the vast majority of NPL sites where some contamination
remains on site, even after cleanup activities have been fully
implemented. At these sites, ICs can be as important in protecting
public health as the engineering remedy itself. It would be foolish to
spend tens or hundreds of millions of dollars on a site remedy, and
then skimp on the monitoring and enforcement of institutional controls.
The Love Canal site--which in many ways ``begat'' the Superfund
program--is the proverbial poster child for the failure of
institutional controls. EPA has a choice to make--it can try to prevent
future ``Love Canals'' by monitoring and enforcing ICs, or it can
create an environment where the next Love Canal is just waiting to
happen.
Improved Data and Public Information
Getting information on the progress, contamination, costs, and
health risks of NPL sites is still a challenge. If you log on to the
main Superfund site (www.epa.gov/superfund) and click on ``sites'' it
is not readily apparent where to go to get different kinds of
information on individual sites among the many choices, nor is it clear
where to go to get the most ``user-friendly'' information. There is in
fact some good information to be found on individual sites, but one has
to be a Superfund maven to know what is on the Superfund Web site, and
how to find it. In addition, it is quite difficult to obtain
information on overall program progress, that is, the number of sites
that have institutional controls, or where current sites are in the
``Superfund pipeline.''
In addition, there are still major questions about the quality of
much of the information in the Superfund program's two major systems--
CERCLIS, which is the main Superfund data base, and IFMS, the Agency's
financial management system. Both systems suffer from too many
individual codes that are inconsistently applied, and the way the
systems are organized is anything but ``user friendly.'' It is a well-
known fact that individual Superfund offices have created their own
data bases to serve their needs, leading to multiple systems with
multiple data, and, one can only assume, increased total cost to the
program. These systems need a major overhaul, not tweaking. They also
have many substantive gaps. Ideally, senior management in EPA should be
able to access, on their own personal computer, up-to-date information
on each and every NPL site, including future funding needs, when
various site actions will be started and completed, the status of ICs,
the major risks at the site, etc.
Overall, the Superfund Web site is extremely difficult to navigate.
In this day and age, when so many people go ``on-line'' to get
information, the Superfund Web site, especially as it relates to site-
specific information, could be greatly improved. More attention should
be paid to describing the various sources of information and to
improving the graphics and user-interface of the site. In our report
Success for Superfund\1\, my colleague Diane Sherman and I recommended
a one-page report card for all NPL sites, and a longer ``NPL site
scorecard.'' While EPA has improved the information that one can get
from the main EPA Web site in recent years, it is still difficult to
obtain basic information about the timing of future site actions, and
what exposure pathways may be of concern.
---------------------------------------------------------------------------
\1\ This report can be found at http://www.rff.org/documents/RFF-
RPT-Superfund Success.pdf
---------------------------------------------------------------------------
Creating better internal systems and a more accessible and ``user-
friendly'' Superfund Web site should be a top priority. That said, it
is critical that any such effort have very strong management from EPA
so that the systems created are simple, and the data is reliable. This
will require working with EPA's regional offices, who are on the front
line in terms of site response activities--and making sure that
whatever consultant is charged with this task does not create a complex
system that will only serve to ensure them full future employment for
the rest of their careers.
The need for independent evaluation: The Superfund program should
develop and fund a 3- to 5-year research and evaluation
strategy.
Finally, the Superfund program--like many Federal programs--needs
to do a better job of evaluating itself. Although there have been many
mandates in recent years--requirements under GPRA, the PART analyses
led by OMB, and others--to stimulate more and better program
evaluation, this new culture seems not to have taken hold yet in
Superfund.
The first task is for the program to create the policy and analytic
capability internally to create a 3- to 5-year research and evaluation
strategy, and to set aside funds to implement it. Some of these
projects can and should be done internally (by EPA staff or their
contractors); others studies must be done independently--through
contracts assuring contractor independence or requests for proposals to
the academic and nonprofit community. All of the work should be subject
to some form of external peer review to assure credibility.
The goal of program evaluation should be to improve implementation
in the future and to assure that funds are being spent in the most
efficient and cost-effective fashion. With Superfund, everyone has an
anecdote about what works, what doesn't, and what the benefits and
costs are. All of these elements need to be part of a broader, credible
assessment of the program's accomplishments--not simply as a
``communications'' initiative.
I think it is fair to say that almost every other program in EPA
has a more robust capability for policy and economic analysis than does
Superfund. I suspect this is because the Superfund program has never
had to comply with the requirements of the various executive orders
requiring regulatory impact analyses. Superfund, however, still does
not have a core policy analytic capability charged with independent
analysis and evaluation. A group needs to be created within OSWER that
has the charge of looking at the entire program, including enforcement,
as that is so crucial to Superfund, and the group needs to be protected
from day-to-day fire drills and have resources to fund external
research and analysis.
Once such a critical mass is created, the next step is to develop
and implement a 3- to 5-year strategy for independent research and
evaluation of the Superfund program and to set aside funds for this
purpose on an annual basis. This should be done with input from
external experts, as well as with input from senior EPA management.
Even though the program is short of funds for cleanup, good evaluations
should help the program save money and be more effective in the long
term. Needless to say, I think it is very important that the results of
these studies be made public.
What kinds of questions would be included in such a research
strategy? Below are some suggestions. These are just some of the many
questions that, if asked, might lead to improvements in the Superfund
program. For a program that costs the American taxpayer $1.3 billion a
year, and that has been in existence for over 25 years, we should know
the answers to some of these questions.
Why does it take so long to reach ``construction
complete'' at some sites? Are there patterns to the causes of delay
that could be addressed to speed cleanup?
Why are there still so many sites where human exposure is
still not under control?
Which remedies have been most effective, and which have
not, for particular kinds of contamination?
How accurate have EPA's initial estimates been of site
costs and time to complete cleanup? What steps could be taken to
improve both estimates?
How much are responsible parties paying for cleanup
actions? How does this compare to initial cost estimates?
What makes a ``mega site'' a mega site? What drives the
high costs at these sites?
Are institutional controls being implemented? If not, why?
What, conceptually, are the benefits and costs of
Superfund cleanups, and do the data and methodologies exist to actually
estimate them?
What is the quality of site studies and remedy designs?
Are there changes to these processes that would both improve the
quality of these efforts, and decrease program costs?
Are all Superfund moneys actually going to Superfund-
related activities, or are some funds and staff siphoned off to other
programs and EPA initiatives?
How do sites listed in recent years compare to those
listed in earlier years in terms of complexity, costs, and pace of
cleanup?
What are the findings of the 5-year reviews, in terms of
whether site remedies are being implemented as designed and whether
cleanup goals are being met?
In closing, it is clear from even a brief look at the status of
sites on the NPL and the fact that new sites continue to be added each
year that the Superfund program is going to be with us for some time
yet. Thus, it is worthwhile to invest in improving current data and
management systems, and to conduct independent evaluations of key
aspects of the program in order to make improvements in how the program
is managed and implemented. These investments will pay off by leading
to a more efficient program, and ultimately, allow the Agency to do
more with the funds it has.
EPA has a responsibility to people living on and near contaminated
sites to ``come clean'' about what has been done at these sites, what
contamination and health concerns remain at ``their'' sites, and when
they can expect each site to be cleaned up. While ``coming clean'' is
always scary--and carries with it the risk of disclosing problems and
concerns of which Congress and the American public were previously
unaware--it is a crucial first step to improved management and
credibility of this important environmental program.
Lasting reform is unlikely to be the result of a series of new
initiatives, or quick fixes. After 25 years, many of the same
challenges remain as in the early years of the program. There is a need
for better data, for independent evaluation, for a willingness to
consider--and make--radical changes in funding and management
priorities. And there is a need for increased transparency in all
aspects of the program. I urge EPA to have as its goal not making the
program better this year or next, but to try to ensure that, 5 years
from now, the program is better focused and managed, and that there is
better data and information about Superfund sites available to the
public. With an eye on the long-term (rather than on tomorrow's news)
EPA can give the American public a much stronger and more effective
Superfund program.
Thank you very much for asking me to testify before you today. I
would be happy to answer any questions.
Responses by Katherine N. Probst to Additional Questions
from Senator Jeffords
Question 1. In your testimony, you suggest that EPA should come
clean about the impact of the funding shortfall on the future pace of
Superfund clean ups. What specifically do you recommend?
Response. I recommend that EPA detail, for each site on the NPL,
the total amount of additional funding needed to complete cleanup of
each site as expeditiously as possible, and specify how much in funding
would be needed each year until cleanup is complete to finish all
remedial activities at each site as soon as possible.
EPA should then specify the implications, on cost and duration of
cleanup, of current funding levels, i.e. for each site, EPA should
detail the likely delay in each phase of the cleanup process due to the
current funding shortfall, and any increase in total costs (both in
discounted and undiscounted dollars), for that site as a result of the
cleanup being spread out over more years than dictated by any physical
or engineering constraints at the site.
It should be noted that while past evaluations have made clear that
more cleanup funding would speed clean up, there are physical and
engineering constraints in how quickly any individual site can be
cleaned up. For example, when we completed our study of future cleanup
costs, EPA staff estimated that the New Bedford Harbor site needed
approximately $300 million in additional funds to complete cleanup
activities. If that full amount were allocated to the Regional Office
today, they could not finish that cleanup in one year.
Question 2. In your testimony, you also discussed a number of steps
that EPA needs to take to ensure that institutional controls at
Superfund sites are monitored and enforced. Am I correct in stating
that, without proper monitoring and enforcement, EPA clean ups that
rely on institutional controls are not protective?
Response. Without proper monitoring and enforcement of
institutional controls there is no way to know if a site that relies on
institutional controls as part of the remedy is protective. If, in
fact, the required institutional are not in place, then the site remedy
is not protective.
Question 3. Your written testimony notes that EPA's annual
Superfund appropriations has decreased substantially when adjusted for
inflation. How has this impacted the Superfund program? Am I correct
that EPA could clean up more abandoned sites if it had greater
resources?
Response. Many people (including myself) often say that the
Superfund program has had ``level funding'' for the past few years, and
refer to funding levels over the life of the Superfund program in what
are called ``nominal dollars.'' In so doing, we all minimize the very
real ``cuts'' to the program that has occurred over the past 20 years.
The reason to point out the decrease in appropriations when the amounts
are adjusted for inflation is to make clear that the Superfund
programs' purchasing power has in fact decreased dramatically over the
past 15-20 years.
As noted in my response to question No. 2 above, I think
unquestionably some cleanups at some NPL sites could be accelerated,
and additional sites contaminated with hazardous substances could be
cleaned up if annual Superfund appropriations were increased, and if
these funds were targeted specifically to cleanup activities. That
said, as noted in my response to question No. 2, there is a limit to
how much some cleanups can be accelerated--as there are limitations on
what can be done that are imposed by the physical characteristics of
each site, as well as engineering constraints.
Clearly, with more funds, more sites could be placed on the NPL, or
more removal actions could be completed. That said, at some point,
limited EPA staffing could itself be a constraint on the number of
cleanups that could be implemented.
__________
Responses by Katherine N. Probst to Additional Questions
from Senator Boxer
Question 1. Your testimony states that ``it is critical that EPA
``come clean'' about the implications of [a funding] shortfall on the
future pace of cleanup, and on progress at individual sites'', and that
EPA should tell Congress on an annual basis ``how much funding would be
needed to `fully fund' cleanup, assuming no change in current cleanup
standards and policies.''
Do you think that EPA's release of this information would help
increase program accountability and efficiency, and play an important
role in increasing public involvement in cleanups?
Response. I think that releasing information on the amount of funds
needed to complete cleanup at each and every NPL site, whether PRP or
Fund-lead would increase program accountability and efficiency and play
an important role in increasing public involvement in cleanups. I would
refer you to the recommendations in a report for which I was the lead
author, Success for Superfund: A New Approach for Keeping Score, which
us available at http://www.rff.org/Documents/RFF-RPT-
SuperfundSuccess.pdf.
Question 2. Your 2001 report to Congress, ``Superfund's Future'',
recommended that EPA ``improve the management and financial systems for
tracking Superfund progress and costs.'' Today, in 2005, you are again
recommending that EPA improve their data management, but also that the
Agency increase the public's access to useful information on sites.
Could you please describe the main actions that you think EPA
should undertake in order to provide truly useful information to the
public.
Response. Again, I would refer you to the recommendations in a
report for which I was the lead author, Success for Superfund: A New
Approach for Keeping Score, which us available at http://www.rff.org/
Documents/RFF-RPT-SuperfundSuccess.pdf.
The main recommendations that we make in that report is that EPA
should:
Create a standardized NPL Scorecard for each NPL site
that contains concise up-to-date information on site progress
and key attributes (updated at least quarterly). The NPL
Scorecard would have six sections: (1) background information,
(2) site progress to date and expected future actions, (3)
baseline contamination and population information, (4) risk
reduction accomplishments, (5) post-construction activities,
and (6) cost information.
In our report, we detail the specific information that we
recommend be included in each section of the Scorecard. The
information we recommend is easy to understand and technically
accurate at the same time. We recommend that EPA include in
this report planned future activities at each site, as well as
past and estimated future costs.
Create a one-page NPL Report Card, which would
include a subset of information from the NPL Scorecard
containing the most important measures of site progress, along
with a small amount of background information. A mock up of the
Report Card is included in our report.
Institute a Web-based Superfund annual report that
would include summary information on site progress, as well as
other indicators of program performance. This annual report
would be similar to the formerly issued Superfund Annual Report
to Congress. As part of this new report, EPA should include an
annual (or biannual) program evaluation agenda. This agenda
should identify the key issues that are ripe for an in-depth
qualitative or quantitative evaluation and make public the
topics and schedule for these evaluations. To develop this
agenda, EPA staff would regularly solicit suggestions from
states, tribes, local community representatives, environmental
groups, industry, external experts, and other stakeholders.
I would note that while we do not say this explicitly in the
report, our assumption was that this NPL scorecard and report card
would be the first item you would see for each NPL site when logging on
to the EPA Superfund Web site, i.e. it would be easy to find.
Question 3a. Your 2001 report provided low, middle and high funding
scenarios for the Superfund program from 2000 to 2009.
Please provide me with a comparison, in figures adjusted for
inflation to 2005, of your low, middle and high funding estimates and
the amount of money appropriated to or requested for EPA between 2001
and 2007.
Response. This information is included in the figure and table
below.
Question 3b. Please provide an annual and cumulative total for any
amount of underfunding.
Response. This information is included in the figure and table
below.
[GRAPHIC] [TIFF OMITTED] 42282.029
Statement of J. Winston Porter, President, The Waste Policy Center
Mr. Chairman, my name is J. Winston Porter, and I am president of
the Waste Policy Center in Leesburg, Virginia. The WPC is a private
research and consulting organization which deals with management,
policy, and technical issues in the areas of solid and hazardous waste
management, as well as other environmental subjects. From 1985 to 1989,
I was EPA's Assistant Administrator for Solid Wastes and Emergency
Response.
It is a pleasure to be here today to provide testimony on the
status of Superfund, particularly as it relates to the possibility of
improved efficiencies in the program.
In my testimony I will draw upon some 20 years of Superfund
management and consulting experience, including that with EPA, the
Departments of Energy and Defense, several States, and numerous private
parties. My professional background also includes the fields of
chemical engineering and project management. I will start with a brief
background statement, followed by my recommendations related to
Superfund's study, remedy selection, and remedy construction phases.
background
Briefly, the current status of EPA's Superfund program is that
about two-thirds of the 1,550 national priority list sites have reached
the construction completed (remedy installed) phase, almost 400 sites
are in the remedy design or construction phases, and approximately 150
sites are in the study phase.
In addition, many thousands of ``emergency removals'' have been
conducted at Superfund sites in order to quickly, cost effectively, and
directly deal with obvious problem areas. This program has perhaps been
Superfund's biggest success.
It is also important to note that the EPA has a significant number
of Superfund sites in the remedy construction phase for which both
potential responsible party (PRP) and Federal funds are very limited.
In addition to the EPA, both the DOE and DOD have major Superfund-
related programs underway. The DOE work primarily involves a few dozen
large facilities, most of which have been components of the nuclear
weapons program. The DOD sites are much more numerous and include both
Superfund and base closure activities.
So, a large amount of work is underway or has been completed by a
group of knowledgeable and dedicated Federal and State governmental
personnel as well as PRPs and specialized private contractors. My
overall assessment is that much has been achieved under the Superfund
program, but much remains to be done. For this remaining work it is
important to improve program efficiency in order to ensure timely and
technically sound cleanups in a more cost-effective manner.
As we strive to improve the ongoing program, let me first make
several general observations related to the Superfund program, which
will serve as the bases for my later recommendations.
First, Superfund is not an ``exact science.'' Science and
technology are very important in addressing Superfund waste sites, but
selecting a sound remedial action at a site requires a good dose of
common sense and ``engineering judgment'' since no two sites are the
same. The Superfund regulations themselves require decisionmakers to
consider such elements as cost effectiveness, implementability, and
state and community acceptance in selecting a remedy. These are not
primarily technical issues.
Second, while much has been accomplished by Superfund, site study
and remediation activities generally take too long and cost too much.
Third, the trend in recent years to use the Superfund program for
only the most complex and hazardous sites is sound. Most waste sites in
the country can now be managed under other EPA or State programs,
brownfields activities, and various voluntary cleanup processes.
Most of the following recommendations will be directed at the EPA
Superfund program, but will also have important implications for other
Federal agencies. My comments will be further divided into study,
remedy selection, and construction phases.
the study phase
While the study projects related to Superfund sites are a
decreasing part of the overall program, such activities are still very
important to overall program success. Superfund projects usually begin
with a ``remedial investigation/feasibility study'' (RI/FS). This
complex study process is described in some detail in Superfund's
primary regulation--the National Contingency Plan.
Very briefly, the RI portion calls for characterization of the site
in terms of its natural features, as well as the amount and location of
contamination and likely risks of such contamination to both humans and
the environment. The FS part involves selection of alternative remedial
actions, and then comparison of such alternatives against a set of nine
remedy selection criteria.
Based on the RI/FS process, as well as substantial stakeholder
input, EPA then selects a remedy for the site through a ``record of
decision'' (ROD) process.
In general, the RI/FS process has gotten steadily more complex and
lengthy over the years, for almost all types of sites. My
recommendations for conducting faster, less costly, and more
technically sound RI/FSs are as follows:
1. Most importantly, timeframes for completing the study phase
should be agreed to by the EPA and other key participants, such as
PRPs.--Unfortunately, at many sites the study work simply meanders
around for many years without much focus or mid-course corrections,
leading to wasted time and money, and ,in some cases, an unimaginative
or noncost-effective remedy selection. Frankly, part of this lengthy
process has to do somewhat with the fact that Superfund has become a
large ``jobs program'' for governmental employees, as well as various
consultants, contractors, and lawyers. All of these specialists are
needed, but their work needs to be more directed toward results rather
than complex processes.
Some complex Federal and other sites (eg., some major river
sediment problems) will require longer study periods, but for most
sites about 2-4 years should be adequate to produce a sound RI/FS.
So, early in the RI/FS process the EPA, PRPs, and other relevant
organizations, should work together to set a clear goal to complete the
study activities. This end date can be modified if necessary, but it is
important for all to understand that, like almost every other type of
engineering project, schedule (and budget) are key factors and should
be adhered to.
There a number of examples of the success of target setting in
Superfund, but perhaps the most dramatic has been the DOE Rocky Flats
Closure Project, near Denver. For this site the ``completion
contractor,'' Kaiser-Hill, and the DOE agreed upon a 2005 target date
for all study and remedy implementation work to be completed. If
successful, the contractor was to receive a completion bonus. Not only
was the project completed on time, but billions of dollars and decades
of time were saved. This work, of course, required good cooperation
among the DOE, EPA, the State of Colorado, local stakeholders, and the
contractor. The firm completion target date greatly focused this
cooperation.
Finally, this project illustrates the importance, for both study
and construction work, of the site personnel developing what I have
referred to as a ``culture of completion.''
2. When the RI/FS process begins one of the first orders of
business should be to use experienced staff and key stakeholders to
quickly identify about 4-7 major remedial action alternatives.--Where
relevant, use should be made of EPA's list of ``presumptive remedies''
for many types of problems, as well as experience gained at similar
Superfund sites.
This set of alternatives can always be modified during the study
phase, but the current process which often involves ``taking data'' for
many years before detailed focus on remedial options often leads to
overly costly information, much of which is not needed, or with
shortages of the data which is actually needed to compare remedial
alternatives for the site.
An iterative approach should be used where information collection
and analysis of remedial alternatives work cooperatively in order to
achieve sound comparisons of options, leading to a good remedy
selection.
Even more importantly, the identification of key options early in
the study process allows the decisionmakers and stakeholders to begin
their dialog on the non-technical factors which are contained in the
remedy selection criteria. These include such items as cost-
effectiveness, implementability, and state and community acceptance.
Many times these types of factors are at least as important as the
strictly technical matters.
3. Significantly streamline the process for developing the myriad
of deliverables at Superfund sites.--While certain documents are
clearly needed to guide the RI/FS activities, the long, tedious process
of developing lengthy draft and final work plans, for example, should
be expedited. This is also true of other ``deliverables'' which take so
much time at Superfund sites, many of which should be quite standard by
now.
There are several perverse effects which have led to such lengthy
periods for document development and review. One has to do with the
fact that Superfund is the only Federal environmental program where
responsible parties have to pay for additional oversight beyond that
which salaried regulators normally provide. Thus, if a group of
companies are forced to give EPA, say, $5 million for oversight, then
EPA can retain contractors to provide hundreds of pages of ``comments''
on such items as the aforementioned work plans. So, we now have dueling
contractors battling over many pages of detailed text, before work can
even begin.
One near term answer would be for review periods and oversight
dollars to be reduced substantially, so participants can focus more on
results than elaborate processes.
4. The PRPs should be encouraged to conduct the RI/FSs themselves
with their own contractors and under EPA's overall supervision.--While
this concept has been largely accepted and successfully promoted by
EPA, more could be done to encourage PRPs to do the study work,
particularly where PRPs would commit to more reasonable timeframes than
EPA often takes for its own studies.
5. Finally, innovative study approaches should be developed which
recognize newer technologies, as well as a quarter of a century of
Superfund experience.-- An example is EPA's ``Triad Approach,'' which
promotes real time technical decisionmaking in order to move rapidly
through the study and cleanup phases.
the selection of remedy phase
The RI/FS process discussed above presents the decisionmaker with
detailed comparisons of alternative remedial actions, from which this
person must select a remedy, present it to the public for comment and
make a final determination. The selection of protective, cost-effective
remedies is, of course, a key to the overall success of the Superfund
program. My suggestions in this area are as follows:
1. The decisionmaker should be a very senior EPA official who can
oversee all of the considerations which go into remedy selection.-- As
noted earlier, technical factors are very important in this process,
but non-technical factors are also key. For example, if there is very
strong community opposition to a particular remedial action, or if a
remedial option is not cost-effective, such factors must be considered
by the decisionmaker.
During my tenure as an EPA assistant administrator I made a number
of ROD decisions, mainly at ``nationally significant sites.'' Most
decisions I delegated to the ten EPA regional administrators (RAs).
However, over the years the ROD decision responsibility has, in most
cases, been delegated further down the line in the EPA regions.
My own view is that the RA should be the decisionmaker in this
important process since he or she is the one who can speak for the
region and has the position and stature to consider all aspects of the
problem, while ``pushing'' the staff to provide the necessary
information to complete remedy selection expeditiously.
2. The role of expected land use should be an important factor in
selecting a remedy.--While all remedies should be protective, it does
not make much sense to demand that a cleanup be sufficient for, say, a
children's center, when the site is slated for use as a golf course, or
a factory, or a wildlife preserve. All of these uses have their own
requirements, but we do not need a one-size-fits-all approach to waste
sites. The goal should be for a site to always be protective, so the
remedial action may need to be modified at a later date if the site use
changes dramatically.
During Superfund's history one of the better examples of the role
of land use in remedy selection has to do with the DOD's Rocky Mountain
Arsenal in Colorado. For this site, the DOD decided ultimately that the
land use would be for a wildlife refuge. Once this decision was made
the DOD, Shell Oil, EPA, and the State and local stakeholders worked
together to select the remedy and move quickly into the construction
phase.
Another DOD issue may also be instructive with respect to the land
use issue. This has to do with the DOD's Superfund-related remediation
sites versus those conducted under the base closure program. Simply
stated, the base closure cleanups, including the selection of remedy,
seem to proceed much faster than those related to Superfund. One of the
reasons, I believe, has to do with the fact that local communities and
others are usually highly motivated to finish base closure cleanups in
order to bring the affected land into productive use. The same time
pressure often does not exist with Superfund remedial activities.
the construction phase
As noted earlier the major activity these days has to do with the
construction phase at Superfund sites. Almost 400 sites are in the
phase where the selected remedy is being either designed or
constructed. Currently, this is also the most controversial phase in
that EPA apparently does not have sufficient funds to expeditiously
complete all of the construction work now planned.
This is particularly true for so-called fund-financed sites where
EPA must install the remedy itself as there are insufficient willing
and able PRPs to conduct this work at some sites. This issue is further
compounded by the views of some that at a significant number of sites
the community may not be fully protected since construction funds are
not readily available.
The following are my recommendations on these construction-phase
issues:
1. The roughly $1.2 billion which is annually appropriated to EPA
by Congress should be looked at very carefully by EPA senior management
to ensure that the highest priority is given to protecting human health
and the environment. While I have not done a detailed review of the
current Superfund budget, my general view is that large amounts of
money are still being used for nonsite-specific activities and
overheads.
2. If Congress is satisfied that EPA has done all it can do to
squeeze out funding for as many construction sites as possible, then it
might consider a supplemental appropriation to EPA to focus on
additional construction activities.
3. The EPA might selectively revisit the ROD decisions made at
these sites to see if some savings can be made based on new information
or technology.
4. Although I suspect that this is already being done, that portion
of the site which may provide actual, near term risk to the community
should receive very high priority for funding.
5. While aiming at the highest risks is always the most important
priority, I personally believe that where sites can be finished for
very modest sums of money, such funding should be considered, as there
are usually site ``carrying charges'' which can then be reduced.
6. The EPA and others should be creative in finding non-Federal
funds for completing sites. In some cases, local developers or others
may be so interested in having access to a completed site that they may
be interested in helping financially. This type of financial driver
has, of course, been instrumental in dealing with brownfields sites,
which can often be very valuable when cleanup measures are completed.
7. Other creative measure should be pursued in the future to
mininimize costs and to develop more creative financing. A good example
is the joint EPA and Army Corps of Engineers eight pilot program
referred to as the ``urban rivers restoration initiative.'' In this
program the EPA and the Corps, along with State and other agencies,
work together to achieve a better and more cost-effective restoration
program than by using Superfund alone.
8. Finally, it was mentioned earlier in this testimony that the
removal (or early action) program has been one of Superfund's major
successes. This program can deal with obvious contamination problems
anytime during the Superfund process, with much less process costs than
the remediation program. Given, this program's success, Congress might
consider allowing EPA to spend more than the current limit on
individual removal actions.
Implicit in all the above is the fact that I don't believe that the
chemical and petroleum feedstock taxes should be renewed on Superfund.
These taxes are unfair in that they target only two industries, which
together account for much less than half of Superfund's contamination
problems. Also, Superfund sites are a broad societal problem which has
been created by many types of industries; local, State, and Federal
agencies; and even individuals. Therefore, I believe the current
process of using general revenues and funds from directly responsible
parties is the right approach.
Finally, I am not convinced that EPA and the Congress have done all
they can to increase Superfund efficiencies and to prioritize the use
of existing funds.
Mr. Chairman, I hope my remarks will be helpful to Congress in
dealing with this important program, and will be happy to answer any
questions which you might have.
__________
Statement of Leonardo Trasande, M.D., MPP, Assistant Director, Center
for Children's Health and the Environment, Department of Community and
Preventive Medicine, Mount Sinai School of Medicine
Good morning, Mr. Chairman and members of the subcommittee. I am
Dr. Leonardo Trasande. I am a pediatrician and Assistant Professor of
Community & Preventive Medicine and Pediatrics at the Mount Sinai
School of Medicine. I am also the Assistant Director of the Center for
Children's Health and the Environment, the Nation's first academic
policy center devoted to the protection of children against
environmental threats to health.
Approximately 3 to 4 million children and adolescents in the United
States live within 1 mile of a federally designated Superfund hazardous
waste disposal site. These children are at especially high risk of
exposure to chemical toxicants released from these sites into air,
groundwater, surface water, and surrounding communities. In the face of
a growing body of scientific knowledge about the preventable,
environmental causes of learning and behavioral problems in our
children, we must take prudent action, and today I urge the members of
this subcommittee to take three important steps to prevent chronic
disease in American children:
Expeditious identification and cleanup of Superfund sites,
Full funding for the NIEHS/EPA Superfund Basic Research
Program, and
Full funding for the National Children's Study.
the need for identification and cleanup of superfund sites
The EPA Superfund program is especially critical to the health of
these children. Rapid identification and cleanup of these sites is so
important because children are especially vulnerable to many chemicals
that exist at many of the Superfund sites in our Nation. There are
several reasons why children are so sensitive to chemical toxins, and
the research that we have undertaken in our Superfund Basic Research
Program at Mount Sinai has contributed greatly to the understanding of
these factors:
One important reason why children are so vulnerable to
environmental chemicals is that they have disproportionately heavy
exposures. Pound per pound of body weight, children drink more water,
eat more food, and breathe more air than adults, and so they take
proportionately more of the toxins in water, food and air into their
little bodies. Small children's exposure is magnified further by their
normal behaviors--their play close to the floor, and their hand-to-
mouth activity, which we pediatricians call ``normal oral exploratory
behavior.''
A second reason for their great susceptibility to chemical
toxins is that children do not metabolize, detoxify, and excrete many
toxins in the same way as adults; thus the chemicals can reside much
longer in children's bloodstreams and cause more damage.
A third reason is that children are undergoing rapid
growth and development, and those very complex developmental processes
are easily disrupted.
Finally, children have more future years of life than most
adults and thus have more time to develop chronic diseases that may be
triggered by early environmental exposures.
Over the past 30 years, chronic diseases of environmental origin
have become epidemic in American children, and are the diseases of
greatest current concern. These include:
Asthma, which has more than doubled in frequency since
1980 and become the leading cause of pediatric hospitalization and
school absenteeism;
Birth defects, which are now the leading cause of infant
death. Certain birth defects, such as hypospadias, have doubled in
frequency;
Neurodevelopmental disorders--autism, dyslexia, mental
retardation, and attention deficit/hyperactivity disorder (ADHD). These
conditions affect 5-10 percent of the 4 million babies born each year
in the United States. Reported rates of autism are increasing
especially sharply--more than 20 percent per year.
Leukemia and brain cancer in children and testicular
cancer in adolescents. Incidence rates of these malignancies have
increased since the 1970s, despite declining rates of mortality.
Testicular cancer has risen by 55 percent, and primary
brain cancer by 40 percent. Cancer is now the second leading cause of
death in American children, surpassed only by traumatic injuries; and
Preterm birth, which has increased in incidence by 27
percent since 1981.
These rapidly rising rates of chronic disease threaten the health
of our children and the future security of our Nation. Indeed, concern
is strong among the pediatric community that these rapidly rising rates
of disease may create a situation unprecedented in the 200 years of our
Nation's history, in which our current generation of children may be
the first American children ever not to enjoy a longer life span than
the generation before them.
Evidence is increasing that many environmental chemicals found at
Superfund sites contribute to the causation of disease in children.
Lead, mercury, polychlorinated biphenyls (PCBs) and certain pesticides
have been shown to cause brain damage and to contribute to learning
disabilities and to disruption of children's behavior. Benzene, 1,3-
butadiene, and pesticides have been etiologically associated with
childhood malignancies. Ambient pollutants--airborne fine particulates,
ozone, oxides of nitrogen, and diesel exhaust also have been shown to
increase incidence of asthma and to trigger asthmatic attacks. Although
many of the causes of developmental problems in children are still not
known, a recent National Academy of Sciences study suggests that at
least 28 percent of developmental disabilities in children--dyslexia,
attention deficit disorder and mental retardation--are due to
environmental causes.
Diseases of environmental origin in American children are also
extremely costly to our Nation. Four of the leading diseases of
environmental origin in American children--lead poisoning, childhood
asthma, neurodevelopmental disabilities and childhood cancer--have been
found to cost our Nation $54.9 billion annually. Mercury pollution has
been found to cost our Nation $8.7 billion annually as a result of lost
economic productivity, and an additional 1566 cases of mental
retardation have been associated with mercury pollution. Each of these
cases is associated with additional special education and health care
costs that are disproportionately borne by the American taxpayer. By
cleaning up toxic waste sites, we reduce toxic exposures and prevent
chronic disease, and thus reduction of unnecessary toxic exposure to
Superfund chemicals can be an effective and cost-effective approach to
improving child health in America. This subcommittee should therefore
continue to ensure that EPA is fully executing its duties under the
Superfund program to identify and cleanup hazardous waste sites in the
safest and most expeditious manner possible.
the need for continued full funding of the superfund basic
research program
The Superfund Basic Research Program (SBRP) is equally critical if
we are to understand and prevent the environmental causes of chronic
childhood conditions that have now reached epidemic proportions in our
Nation. The National Institute of Environmental Health Sciences'
(NIEHS) Superfund Basic Research Program is a unique program of basic
research and training grants directed toward understanding, assessing,
and reducing the adverse effects on human health that result from
exposure to hazardous substances. Grants made under this program are
for coordinated, multicomponent, interdisciplinary programs. The
technology within this program is on the cutting edge of assessing and
evaluating human exposure, effects of hazardous substances and
transport of chemicals through various media from waste sites. This
program is researching and developing many innovative technologies for
detecting, assessing, and reducing toxic materials in the environment.
The NIEHS/EPA SBRP had previously focused on understanding the
impact of toxic environmental exposures on the health of adults.
However, it has become apparent that this data base of information is
not necessarily applicable to children. The program recognized this
deficit early and, accordingly, has directed an increasing percentage
of its diverse research efforts toward understanding the effects of
environmental exposures on children's health. These studies in
universities across the United States include fetal, infant, childhood,
and adolescent research. Research in exposure assessment is of
particular interest.
The below Table provides a snapshot of some of the previous
projects that have been supported in the past by the SBRP in the area
of children's health.
[GRAPHIC] [TIFF OMITTED] 42282.002
While it seems that studies of adult exposures might most
efficiently investigate gene-environment interactions related to the
disorders that produce the greatest disability, hospitalization, and
death, which occur in adults rather than children, this focus ignores
the growing evidence of important and even crucial environmental
contributions to adult disorders that start early in development.
Because early environmental exposures are so important, a longitudinal
assessment of the environment from the preconceptual period through
infancy is essential to unravel the underlying susceptibility to
diseases of adulthood. It is now clear that vulnerability to a
particular risk factor is often determined not only by the genome
acquired at conception, but also by dynamic modifications to the
genome, and therefore to assess gene-environment interactions
adequately, not only will the stable DNA sequence be essential but also
epigenetic modifications to nuclear and mitochondrial DNA will have to
be identified. Thus continued emphasis on child health studies within
the Superfund Program is especially critical going forward.
the national children's study--safeguarding the health of our children
Finally, in this testimony I wish to point out the critical need
for funding the National Children's Study, which will unearth so much
important information of the health effects of chemicals found at
Superfund sites.
The National Children's Study is a prospective multi-year
epidemiological study that will follow 100,000 American children, a
nationally representative sample of all children born in the United
States, from conception to age 21. The study will assess and evaluate
the environmental exposures these children experience in the womb, in
their homes, in their schools and in their communities. It will seek
associations between environmental exposures and disease in children.
The diseases of interest include all those listed above. The principal
goal of the Study is to identify the preventable environmental causes
of pediatric disease and to translate those findings into preventive
action and improved health care. The National Children's Study was
mandated by Congress through the Children's Health Act of 2000. The
lead Federal Agency principally responsible for the Study is the
National Institute of Child Health and Human Development. Other
participating agencies include the National Institute of Environmental
Health Sciences, the Environmental Protection Agency, and the Centers
for Disease Control and Prevention. By working with pregnant women and
couples, the Study will gather an unprecedented volume of high-quality
data on how environmental factors acting either alone, or in
combination with genetic factors, affect the health of infants and
children. Examining a wide range of environmental factors--from air,
water, and dust to what children eat and how often they see a doctor--
the Study will help develop prevention strategies and cures for a wide
range of childhood diseases. By collecting data nationwide the study
can test theories and generate hypotheses that will inform biomedical
research and he care of young patients for years to come. Simply put,
this seminal effort will provide the foundation for children's
healthcare in the 21st Century.
Six aspects of the architecture of the National Children's Study
make it a uniquely powerful tool for protecting the health of America's
children:
1. The National Children's Study is prospective in its design.--The
great strength of the prospective study design is that it permits
unbiased assessment of children's exposures in real time as they
actually occur, months or years before the onset of disease or
dysfunction. Most previous studies have been forced to rely on
inherently inaccurate retrospective reconstructions of past exposures
in children who were already affected with disease. The prospective
design obviates the need for recall. It is especially crucial for
studies that require assessments of fetal and infant exposures, because
these early exposures are typically very transitory and will be missed
unless they are captured as they occur.
2. The National Children's Study will employ the very latest tools
of molecular epidemiology.--Molecular epidemiology is a cutting-edge
approach to population studies that incorporates highly specific
biological markers of exposure, of individual susceptibility and of the
precursor states of disease. Especially when it is embedded in a
prospective study, molecular epidemiology is an extremely powerful
instrument for assessing interactions between exposures and disease at
the level of the individual child.
3. The National Children's Study will incorporate state-of-the-art
analyses of gene-environment interactions.--Recognition is now
widespread that gene-environment interactions are powerful determinants
of disease in children. These interactions between the human genome and
the environment start early in life, affect the health of our children,
and set the stage for adult disorders. The heroic work of decoding the
human genome has shown that only about 10-20 percent of disease in
children is purely the result of genetic inheritance. The rest is the
consequence of interplay between environmental exposures and
genetically determined variations in individual susceptibility.
Moreover, genetic inheritance by itself cannot account for the sharp
recent increases that we have seen in incidence of pediatric disease.
4. The National Children's Study will examine a nationally
representative sample of American children.--Because the 100,000
children to be enrolled in the Study will be statistically
representative of all babies born in the United States during the 5
years of recruitment, findings from the Study can be directly
extrapolated to the entire American population. We will not need to
contend with enrollment that is skewed by geography, by socioeconomic
status, by the occurrence of disease or by other factors that could
blunt our ability to assess the links between environment and disease.
5. Environmental analyses in the National Children's Study will be
conducted at the Centers for Disease Control and Prevention.--The CDC
laboratories in Atlanta are the premier laboratories in this Nation and
the world for environmental analysis. Because the testing will be done
at CDC it will be the best available, and the results will be
unimpeachable.
6. Samples collected in the National Children's Study will be
stored securely and will be available for analysis in the future.--New
tests and new hypotheses will undoubtedly arise in the years ahead.
Previously unsuspected connections will be discovered between the
environment, the human genome and disease in children. The stored
specimens so painstakingly collected in the National Children's Study
will be available for these future analyses.
Congress has already laid a firm foundation for the National
Children's Study. Between 2000 and 2005, the Congress invested more
than $55 million to design the study and begin building the nationwide
network necessary for its implementation. Seven Vanguard Centers and a
Coordinating Center were designated in 2005 at sites across the
Nation--in Pennsylvania, New York, North Carolina, Wisconsin,
Minnesota, South Dakota, Utah and California--to test the necessary
research guidelines--with plans to expand the program to 38 States and
105 communities nationwide. The tough job of designing and organizing
is nearly complete. Funding for the Study this year will permit
researchers to begin achieving the results that will make fundamental
improvements in the health of America's children. To abandon the Study
at this point would mean forgoing all of that dedication, all of that
incredible effort, and all of the logistical preparation.
The National Children's Study will yield benefits that far outweigh
its cost. It will be an extraordinarily worthwhile investment for our
Nation, and it can be justified even in a time of fiscal stress such as
we face today. Six of the diseases that are the focus of the Study
(obesity, injury, asthma, diabetes, autism and schizophrenia) cost
America $642 billion each year. If the Study were to produce even a 1
percent reduction in the cost of these diseases, it would save $6.4
billion annually, 50 times the average yearly costs of the Study
itself. But in actuality, the benefits of the National Children's study
will likely be far greater than a mere 1 percent reduction in the
incidence of disease in children. The Framingham Heart Study, upon
which the National Children's Study is modeled, is the prototype for
longitudinal medical studies and the benefits that it has yielded have
been enormous. The Framingham Study was launched in 1948, at a time
when rates of heart disease and stroke in American men were
skyrocketing, and the causes of those increases were poorly understood.
The Framingham Study used path-breaking methods to identify risk
factors for heart disease. It identified cigarette smoking,
hypertension, diabetes, elevated cholesterol and elevated triglyceride
levels as powerful risk factors for cardiovascular disease. These
findings contributed powerfully to the 42 percent reduction in
mortality rates from cardiovascular disease that we have achieved in
this country over the past 5 decades.
The data from Framingham have saved millions of lives--and billions
of dollars in health care costs. The National Children's Study, which
will focus on multiple childhood disorders, could be even more
valuable. We do not need to wait 21 years for benefits to materialize
from the national Children's Study. Valuable information will become
available in a few years' time, as soon as the first babies in the
Study are born.
Consider, for example, data on premature births. The rate of U.S.
premature births in 2003 was 12.3 percent, far higher than the 7
percent rate in most western European countries. Hospital costs
associated with a premature birth average $79,000, over 50 times more
than the average $1,500 cost for a term birth. Just a 5 percent
reduction in rates of prematurity would cut hospital costs by $1.6
billion annually. Within just 2 years, that savings would match the
full cost of the Study.
The Study enjoys a broad group of supporters, including The
American Academy of Pediatrics; Easter Seals; the March of Dimes; the
National Hispanic Medical Association; the National Association of
County and City Health Officials; the National Rural Health
Association; the Association of Women's Health, Obstetric and Neonatal
Nurses; United Cerebral Palsy; the Spina Bifida Association of America;
and the United States Conference of Catholic Bishops, just to name a
few. This broad and diverse group recognizes the overwhelming benefits
this Study will produce for America's children.
Congress first authorized the National Children's Study in 2000,
and has appropriated $55 million since then to design the Study,
complete preparatory research, and designate the seven Vanguard sites
that will conduct preliminary testing.
This has been a wise investment that should not be abandoned just
as the Study is about to bear fruit. Unfortunately, the Administration
has not provided continued funding in the fiscal year 1907 budget, a
decision which threatens to squander the investment already made and to
throw away the multi-generational benefits the Study will yield.
Funding for the Study this year requires a commitment of $69 million.
These funds will be used to begin enrolling children in the study. They
will enable the NIH to continue establishing the 105 study sites around
the country. We urge Congress to fully fund the National Children's
Study. It is an investment in our children--and in America's future.
The National Children's Study will give our Nation the ability to
understand the causes of chronic disease that cause so much suffering
and death in our children. It will give us the information that we need
on the environmental risk factors and the gene-environment interactions
that are responsible for rising rates of morbidity and mortality. It
will provide a blueprint for the prevention of disease and for the
enhancement of the health in America's children today and in the
future. It will be our legacy to the generations yet unborn.
In summary, Congress is poised to take three critical steps to
improve the health and economic security of our Nation. Through
continued expeditious cleanup of Superfund sites and prevention of
toxic chemical exposures from these hazardous waste sites, we can
prevent disease before it occurs in children. We need to continue to
support the Superfund Basic Research Program which provides desperately
needed information about the environmental fate and toxic effects of
Superfund compounds, and we need full funding for the National
Children's Study if we are to develop effective methods of preventing
diseases of environmental exposure among American children.
Thank you. I shall be pleased to answer your questions.
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Responses by Leonardo Trasande to Additional Questions
from Senator Boxer
Question 1. If EPA is stretching out timelines for cleanups and
using institutional controls that have been shown to be of questionable
effectiveness, could this result in increased risks of cancer and other
disease?
Response. Yes, Senator, delays in cleanup can most definitely
increase risk for chronic diseases, especially in children.
Uncontrolled chemical exposures pose special dangers to children for
the reasons that I have described in my oral testimony. As I stated in
my oral testimony, the benefits of preventing exposure to Superfund
chemicals have been proven time and again--first with lead, then with
PCBs and more recently with pesticides and methylmercury. Delays in
preventing toxic exposure will lead to preventable and costly diseases
in children such as developmental disabilities, birth defects and
childhood cancers.
Question 2. Mr. Trasande, Mr. Spiegel's testimony described a
situation where EPA was recommending that people wipe off contaminated
dust from their shoes as a way of reducing exposure.
How effective is this type of activity to reducing potentially
harmful exposures to chemicals such as PCBs?
Response. This approach is ineffective at best, and not an adequate
substitute for removing the offending agent or preventing contact. For
example, in our Pediatric Environmental Health Specialty Unit, we
advise parents who work with asbestos, lead or other chemicals to keep
their work clothes at work, and change into new clothes there so that
they do not needlessly track toxic dusts into the home. Once they
deposit in the home, chemical dusts can be extremely difficult to
remove, and can easily be ingested in hand-to-mouth behavior. Once
ingested or even inhaled in some cases, lead and other chemical dusts
can harm the brain and other developing organs in children.
__________
Responses by Leonardo Trasande to Additional Questions
from Senator Obama
Question 1. Based upon your experience observing the effect of
toxic chemicals on children, do you believe children may potentially be
at risk of cancers and other medical conditions at lower exposure
levels than we previously believed?
Response. Thank you for asking this important question, Senator.
Yes, our Nation's children are at increased risk of cancers,
respiratory illness, developmental disabilities and a host of other
chronic childhood conditions as a result of chronic, low-level
exposures that are currently considered ``safe.'' Genetics cannot
explain the massive epidemic of chronic childhood diseases we are
experiencing in America. Unfortunately, we still do not know which
chemicals contribute most significantly to this epidemic because we
have limited data about the toxicity of many widely used environmental
chemicals. Our effort to understand the role of environmental chemicals
in chronic childhood disease is further complicated by the reality that
many of these chemicals also cause harm without leaving a permanent and
detectable fingerprint to which to trace exposure.
Our current regulatory process for chemicals also presumes safety,
and allows a dangerous natural experiment to ensue. Of the 2,800 high
production volume chemicals, of which more than one million pounds are
produced annually, fewer than half have undergone any toxicity testing
at all, and fewer than one-fifth have had any previous testing for
developmental toxicity. Among those chemicals that have been studied,
the little we know suggests that chemicals are likely to be harmful to
children. In the past few years, we have learned that even one
microgram per liter of lead can stunt a child's cognitive development.
Ten micrograms per liter is the current action threshold according to
the Centers for Disease Control. The American Academy of Pediatrics has
called for major changes of outdoor air quality standards because
studies have found that particulate matter, sulfur dioxides and other
pollutants harm lung development, may precipitate asthma, and may pose
increased risk of cancer. Levels below the EPA's Reference Dose for
mercury have been associated with abnormalities on behavioral evoked
auditory response tests. This is unfortunately just the tip of the
iceberg, and in the absence of adequately toxicity testing, families
are unknowingly placing their children in harm's way.
Question 2. Should we be looking more closely at the risks posed to
children by these sites than to adults?
Response. Yes, Senator, the standard for environmental abatement at
Superfund sites should always be set to protect our Nation's most
valuable resource, our children. This standard was most recently set in
the 1993 Food Quality Protection Act, which was passed unanimously by
both houses of Congress. This law codified the scientific reality that
our children are especially vulnerable to toxic chemical exposures, and
that special consideration should always be taken to protect children,
even when the scientific evidence has not confirmed the certainty of
chemical toxicity.
We also desperately need to determine child safety thresholds for
many chemicals, and if there is one study that can provide insight into
the risks that chemicals pose for children, it is the National
Children's Study. A study of its magnitude is desperately needed
because so many factors complicate understanding the role of chemicals
in childhood disease--genetic variability, social factors and other
chemical exposures make teasing out the role of individual toxicant
extremely difficult. To date, small epidemiologic studies have provided
piecemeal knowledge about chemicals, but often we have so little
information that Superfund cleanup efforts are based on toxicity to
adults or hypothetical, unseen risks. Superfund cleanup could thus be
made more cost-effective and efficient through the National Children's
Study.
__________
Statement of Michael W. Steinberg, on Behalf of the Superfund
Settlements Project
executive summary
Superfund today is a mature program that has largely accomplished
its goals. Private parties are cleaning up most of the sites on the NPL
and paying the full cost of those cleanups. Superfund has also
addressed most of its original workload; construction of the remedy has
already been completed at most of the sites on the NPL.
Despite Superfund's accomplishments, there is still considerable
potential for improvement. In particular, EPA can do more with the
Superfund appropriation it receives from Congress each year.
Specifically, EPA can take action to conserve more of its annual
appropriation for the core mission of the Superfund program--completing
long-term cleanup at sites on the NPL. Among the steps EPA should take
are the following:
revisiting the amount of money transferred each year to
EPA offices other than OSWER;
providing greater transparency on key decisions, such as
adding sites to the NPL;
exercising greater management authority over remedy
selection decisions, which increase Superfund's long-term financial
obligations;
reducing spending on oversight of work performed by
experienced private parties; and
reducing spending on non-emergency removal actions.
statement
The Superfund Settlements Project (``the Project'') appreciates the
opportunity to share with the subcommittee some industry perspectives
on the Superfund program as it operates today. The Project is a not-
for-profit association of eight major companies from various sectors of
American industry.\1\ It was organized in 1987 in order to help improve
the effectiveness of the Superfund program by encouraging settlements,
streamlining the settlement process, and reducing transaction costs for
all concerned.
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\1\ The current members of the Project are Chevron, Ciba Specialty
Chemicals Corporation, the DuPont Company, FMC, General Electric
Company, Honeywell International Inc., United Technologies Corporation,
and Waste Management, Inc.
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introduction
The members of the Project share an extraordinary degree of
practical, hands-on experience with the Superfund program. These
companies have been involved at hundreds of Superfund sites across the
country over the last 25 years. Representatives of the Project have
testified before Congress on many occasions regarding various aspects
of the Superfund program. The Project has also played an active
leadership role in the national policy debate over many Superfund
issues, and has been a strong supporter of EPA's Superfund
Administrative Reforms since they were announced in 1995.
Collectively, these eight companies have spent well over $6 billion
on site cleanups and site studies since 1980. That spending covered not
only the companies'own shares of liability, but also sizable shares
attributable to other parties that were defunct, insolvent, or
otherwise unable to pay their fair shares. On top of that, these eight
companies also paid out hundreds of millions of dollars more in Federal
Superfund taxes during the first 15 years of the program's life. All
told, these companies have paid far more than any fair or equitable
measure of their actual responsibility for the contamination at these
sites.
The Project regards Superfund as a mature program that has largely
accomplished its goals (albeit at a cost that was not always justified
by the risks being addressed\2\). The gaps in environmental regulatory
programs that led to the creation of many Superfund sites have been
filled by the Clean Water Act, the Resource Conservation and Recovery
Act, and the Toxic Substances Control Act. Today, private parties are
cleaning up most of the sites on the National Priorities List
(``NPL''), and they are paying the full cost of those cleanups. The
Superfund Trust Fund is paying for cleanups at the ``orphan'' sites
where no responsible party exists.\3\
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\2\ Superfund does consider ``cost-effectiveness'' to a limited
extent. After EPA develops a list of remedial alternatives that are
protective, meet applicable or relevant and appropriate requirements
(ARARs), satisfy the statutory preferences for treatment and
permanence, etc., then Superfund asks whether the cost of each
alternative is ``proportional to'' its effectiveness. 40 C.F.R.
Sec. 300.430(f)(1)(ii)(D)(2005). But the more fundamental questions--
such as the benefits of meeting ARARs and satisfying the statutory
preferences in the first place--are not asked.
\3\ This includes ``orphan'' sites where the responsible party is
insolvent, or has been exempted from liability by Congress. The Trust
Fund is also paying for general informational and outreach programs
such as technical assistance to community groups, research and
development, remedial and brownfields policy development, and public
participation.
---------------------------------------------------------------------------
Superfund has also largely addressed its original workload.
Significantly, construction of the remedy has already been completed at
most of the sites on the NPL. Today, Superfund is working on the
remaining NPL sites, which include some of the largest, most complex,
and most challenging sites.
overview
In this statement, we address several key aspects of the Superfund
program's past, present, and future. First, we describe the evolving
partnership between EPA and industry that has enabled the program to
achieve notable successes, particularly since EPA's announcement of the
administrative reforms in October 1995.
Second, we describe the current need for EPA to do more with the
Superfund appropriation it receives each year from Congress.
Third, we note that a significant fraction of EPA's Superfund
appropriation is transferred every year to other EPA program offices
that are not involved in actual cleanup work. We recommend that EPA
conserve more of its appropriation for the core mission of the
Superfund program--completing long-term cleanup at NPL sites.
Fourth, we urge that the process of listing sites on the NPL be
focused and transparent. The NPL should continue to be ``the tool of
last resort.'' EPA should also begin explaining to the public why it is
listing on the NPL sites with viable Potentially Responsible Parties
(``PRPs'').
Fifth, we recommend that EPA Headquarters have a major role in
making the key decisions about cleanups, in order to achieve more
effective management of Superfund's long-term costs.
Sixth, we urge EPA to reduce spending on oversight of work
performed by experienced private parties and to redirect this money to
the program's core mission.
Seventh, and last, we propose refocusing the removal action program
on its original purpose of addressing ``emergency'' threats to human
health or the environment.
I. Superfund Today Represents a Highly Successful Partnership Between
EPA and Industry
Although the Superfund program has generated extraordinary levels
of controversy and criticism, EPA has, over time, developed
institutional capability and expertise, solved problems, improved
relationships, and ultimately established a program that operates
relatively effectively and performs a critical function in society. To
be more specific:
tens of thousands of contaminated sites have been
evaluated;
short-term removal actions have been taken at several
thousand of those sites;
longer-term remedial actions have been completed at most
of the non-Federal sites on the NPL; and
construction is underway at most of the remaining NPL
sites.
Superfund--once a topic of intense public concern, dominated by
controversy and emotion--has fundamentally achieved its objectives and
accordingly has receded in the public focus. Today a general public
recognition exists that at most sites, the actions which should be
taken are being taken.
In the process and in recent years, EPA has also worked to improve
relationships with Potentially Responsible Parties (``PRPs'') and has
minimized its previously confrontational approach to private parties.
For the most part, there now exists an atmosphere of cooperation and
mutual respect. EPA should be commended for its accomplishments in this
field.
It should also be recognized that industry has made major
contributions to the success of this program. Perhaps unfairly,
industry initially bore the brunt of criticism for past disposal
practices that in essence reflected the values and scientific knowledge
of society in an earlier era. Stung by such criticism and offended by a
liability system that many regarded as totally unfair, much of industry
initially protested and resisted the obligations imposed on it by the
Superfund statute.
By the mid to late 1980s, however, those attitudes had changed, and
most national corporations accepted the imperative that they must
participate constructively in addressing this national problem. At site
after site across the country, those companies rose to the challenge.
They organized PRP groups, established committees within those groups,
investigated the conditions of contamination, and developed action
proposals. Once EPA selected the remedies, those companies carried out
remedial actions, and today they are managing long-term operation and
maintenance at most sites. They provided the leadership, the technical
resources, and the funding to perform required work at an ever-
increasing percentage of contaminated sites. That percentage is now
greater than 70 percent of NPL sites.
Welcoming the more cooperative spirit that EPA has demonstrated
since adoption of the administrative reforms in 1995, those companies
have themselves taken pride in the results of this program. They have
earned the right to be regarded as constructive partners in the
achievement of success under Superfund. They will continue to be
constructive partners in addressing other sites through other cleanup
programs.
Despite Superfund's notable successes, however, the program still
has considerable room for improvement. In particular, EPA can and
should do more with the money it receives each year from Congress.
Accordingly, in the spirit of constructive criticism, we describe below
several ways in which EPA can direct more of its annual Superfund
appropriation to the core mission of completing long-term cleanup at
NPL sites. Importantly, all of the measures that we recommend here are
steps that EPA can take without the need for legislative action or
rulemaking.
II. EPA Can Do More With the Money it Receives Each Year from Congress
The Superfund program today faces a variety of challenges relating
to financial management. The central theme that connects all of these
issues is the pressing need for EPA to manage its annual appropriation
more effectively.
Currently, the Superfund program:
transfers a significant fraction of its appropriation each
year to other EPA offices that are not involved in cleanup work;
takes on new long-term financial obligations each year
with little transparency and limited management review; and
spends money each year on projects that are not high
priorities and activities that are not essential.
In sum, EPA is not yet managing either its Superfund ``income'' or
its Superfund ``expenses'' as well as it can.
We offer below a series of recommendations aimed at helping EPA
address these challenges. In particular, EPA should:
conserve more of its annual Superfund appropriation for
the program's core mission--completing long-term cleanup work at NPL
sites;
provide greater transparency for key decisions;
exert greater management control over the key decisions
that increase Superfund's long-term financial obligations; and
reduce unnecessary spending wherever possible.
We address each of these topics below in greater detail.
III. EPA Should Conserve More of Its Superfund Appropriation for
Cleaning Up NPL Sites.
Currently, some $200 MM/yr of EPA's annual Superfund appropriation
is directed not to the Office of Solid Waste and Emergency Response
(``OSWER''), but to other EPA offices that provide varying degrees of
indirect support to the Superfund program. These other offices include:
Office of Research and Development (``ORD'');
Office of Administration and Resource Management
(``OARM'');
Office of the Chief Financial Officer (``OCFO'');
Office of Inspector General (``OIG'');
Office of Policy and Environmental Information; and
Office of General Counsel (``OGC'').
The net effect of these transfers is that nearly one-fifth of the
total Superfund appropriation is diverted ``right off the top'' to
other EPA offices that are not actually involved in cleaning up any
Superfund sites. This is significant for several reasons.
First, the amount of money involved here is large, particularly in
comparison to the total amount that EPA actually spends on cleanup
work. For example, the amount transferred to these other offices in
fiscal year 2003 was about the same as the total amount that EPA spent
that year on Remedial Design and Remedial Action at NPL sites, which is
the core mission of the Superfund program. To put it another way,
Superfund has been spending about as much on indirect support in non-
Superfund offices as it spends on actual cleanup of NPL sites.
Second, the dollar amounts of these annual transfers to other
offices were established years ago. These amounts apparently have not
been revisited in light of the current level of program support that is
actually needed from these other offices. Thus, it is not clear that
these allocations reflect Superfund's current needs, or that they
reflect sound management decisions about the wisest use of public
funds.
Third, we know of no policy reason why the Superfund program should
pay for the support of OARM, OCFO, and OIG, among others. These support
offices provide shared services to EPA's many programs, and these
offices are directly funded by Congress as part of EPA's annual
appropriation. The current practice of having the Superfund program pay
for these shared services is a glaring departure from the normal
practice, both at EPA and throughout the Federal Government.
Finally, apart from the magnitude of these transfers to other
offices, the transfers are open-ended, in the sense that any funds not
actually used by the offices receiving the transfer apparently remain
available for their use in subsequent fiscal years. Any funds not
actually used in a given year should be returned to OSWER at the end of
that year, so that they may be used on cleanups. In sum, we recommend
that EPA carefully scrutinize its use of its Superfund budget so as to
conserve more for the core mission of the Superfund program.
IV. The NPL Listing Process Should be Focused and Transparent
Each new site listed on the NPL effectively imposes long-term
financial obligations on the Superfund budget for many years to come.
We believe that new sites should be listed on the NPL only after (1) a
finding that they require Federal intervention because no other options
will work (``the tool of last resort''), and (2) a transparent process
that allows the public to comment on these issues. We address these two
points in turn.
A. The NPL Should Remain the ``Tool of Last Resort''
In thinking about the purpose and scope of the NPL, it is helpful
to bear in mind the lessons learned during the past 25 years in three
main areas:
the universe of contaminated sites;
the alternatives available for addressing those sites; and
the strengths and weaknesses of the Superfund program.
We briefly address each of these points below, before explaining
why the NPL is, and should remain, the ``tool of last resort.''
First, experience has dramatically changed our knowledge about the
number and character of contaminated sites throughout the country, as
well as the risks associated with them. Rather than facing a few
hundred sites, each of which was initially believed to pose severe
threats to public health, it now is clear that we have a great many
sites, most of which pose relatively small, if any, risks. For example,
one EPA count of potential Brownfield sites indicated over 600,000
sites perceived to be impacted by contamination, the great majority of
which either are being addressed through State programs or pose no
severe or immediate risk to human health or to the environment. These
factors mean that contaminated sites should be managed by leveraging
all appropriate private and public resources. The framework for
response should emphasize State, local, and private efforts, rather
than ``making a Federal case'' out of each site.
Second, the choices available to society to address contaminated
sites are far greater today than those in existence when Superfund was
enacted in 1980. Virtually all states have developed their own ``mini-
Superfund'' programs and voluntary cleanup programs that have achieved
success. In addition, at the Federal level, EPA's RCRA corrective
action program governs thousands of operating facilities, and another
program covers underground storage tanks.
Third, Superfund's strengths and weaknesses as a cleanup program
can be seen more clearly today based on 25 years of experience. As to
its strengths, Superfund has focused attention on the need to remediate
sites contaminated due to the inadequacies of pre-1980 disposal
requirements. It has galvanized cleanup efforts, and it has achieved
cleanups at most of the roughly 1,500 sites listed on the NPL.
Superfund has also performed many successful emergency removal actions,
most of them at non-NPL sites.
As to its weaknesses, Superfund has attached a lasting stigma to
some sites and the communities that surround them. In many cases,
Superfund has also imposed excessive operational, legal, and financial
restrictions on these sites that will interfere with their future reuse
or redevelopment. Moreover, the cost at which Superfund has achieved
results--some $35 billion in EPA appropriations alone since 1980, and
at least that much more in private sector spending--is widely viewed as
far higher than necessary or justified in light of the risks being
addressed.
In hindsight, at least, it seems clear that many sites addressed
under Superfund did not present major risks to human health or the
environment.\4\ Instead, sites were listed on the NPL based on fairly
crude assessments of their potential risks. Once a site is listed on
the NPL, however, the focus shifts from risk reduction to ``cleanup,''
where progress is much slower and completion is maddeningly elusive.
Ironically, this focus on ``cleanup'' often delays or limits the risk
reduction that should be Superfund's focus.
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\4\ See, e.g., U.S. General Accounting Office, Environmental
Protection-- Meeting Public Expectations With Limited Resources 17-18
(1991) (GAO/RCED-91-97) (risks from contaminated sites ranked
relatively low by EPA scientists, but relatively high by the public).
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In light of this experience, it is clear that the NPL should
continue to be the tool of last resort--a tool that because of its
unique nature should only be used in those situations that require such
a high-cost, inefficient mechanism. EPA adopted this term--``the tool
of last resort''--as its unofficial policy some years ago, but then
failed to communicate this policy clearly in its actual NPL listings.
As we show below, the resulting lack of transparency makes it difficult
for the local communities or other interested parties to understand why
some sites are listed and others are not.
The circumstances warranting use of the Superfund NPL as ``the tool
of last resort'' might include sites that:
are severely contaminated; and
pose immediate or severe risks; and
have no near-term prospect of cleanup by viable PRPs.
But apart from the sites that meet the above criteria for NPL
listing, nearly all other sites should be managed under other programs.
This would include the RCRA corrective action program and the full
range of state cleanup programs. If those other programs are viewed as
deficient in some respects, then those programs should be improved
rather than shifting sites to Superfund and thereby removing the
incentive to remedy the perceived shortcomings of those other Federal
and State programs.\5\
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\5\ This same approach should also govern NPL delistings or
deletions. The core idea is that if the studies and cleanup work
performed at an NPL site have brought it to the point where the
remaining risk would no longer justify application of ``the tool of
last resort,'' then EPA should find a way to remove that site from the
NPL so it can be addressed in a more appropriate way. Whatever the
criteria for NPL listing, it makes little sense to keep a site in the
NPL universe once it no longer meets those criteria.
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It is fully expected that PRPs--mostly private companies, as well
as governmental departments and agencies--will continue to perform and
fund cleanups, either individually or in conjunction with regulatory
agencies, at sites they have contaminated. The point here is simply
that Superfund is not the proper mechanism to address most of these
sites.
We now turn to the process used to list sites on the NPL, with a
focus on the need for greater transparency regarding the reasons why
sites are being listed.
B. NPL Listings Should Be Transparent
When it comes to transparency in government, more is better. Yet
for a process with such high stakes, EPA's NPL listing decisions are
somewhat opaque.
EPA adds sites to the NPL each year. It does so without offering
any public explanation of what other options EPA considered for
addressing those sites, or why EPA decided that the other options were
inadequate.\6\ This means that the local communities and other
interested parties have no way, as a practical matter, to submit
meaningful comments on proposed NPL listings, because EPA has never
said why it wants or needs to list the sites.
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\6\ EPA's Federal Register notices provide the names of the sites
that are proposed to be listed, but no explanation of what EPA hopes to
accomplish by listing them on the NPL. See, e.g., 71 Fed. Reg. 20052
(April 19, 2006) (proposing to list 6 sites on the NPL without
explaining what EPA hopes to accomplish by listing them).
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To address this deficiency, EPA should include a brief statement
along with each proposed NPL listing. In that statement, EPA should
note any other approaches it has considered for addressing the site
(e.g., state voluntary cleanup program). EPA should also explain why it
believes the NPL is the best approach for this particular site.
Based on EPA's brief statement, the public could then submit
comments that address these issues. Such comments might point out the
availability of other approaches to getting the site cleaned up. EPA
would then consider those comments before making a final decision on
whether or not to list the site. The net result would be a huge
increase in transparency.
In sum, two aspects of the NPL listing process present room for
improvement. First, strong Headquarters management of the NPL listing
process will help insure that the NPL remains ``the tool of last
resort.'' Second, greater transparency in the listing process is also
critically needed.
V. EPA Headquarters Should Have A Major Role in Making the Key
Decisions About Cleanups
After NPL listings, the next most important decisions in the
Superfund program are the selection of final cleanup plans for those
NPL sites. Each year, EPA issues new Records of Decision (``RODs'')
selecting remedies for NPL sites around the country.
As a practical matter, each of these new RODs effectively imposes
financial obligations on the Superfund budget for years to come. If a
site has no viable PRPs, or if the PRPs fail to step forward, then EPA
eventually ends up paying for the cleanup. In this way, each new ROD
effectively controls some of Superfund's future spending.
Because the RODs are so important to Superfund's budget, it would
seem important to have Superfund management at EPA Headquarters review
them closely in advance before the final decisions are made. But that
is not the norm today. Instead, EPA's Regional Offices usually have the
final say on these cleanup decisions.
Under a delegation of authority dating back to 1994, most new RODs
are signed by Division Directors in EPA's Regional Offices. Review by
Superfund program management at EPA Headquarters is typically very
limited. For all practical purposes, then, EPA Headquarters does not
actively manage the rate at which the Superfund program takes on new
financial obligations each year.
We recommend that EPA take several actions to address this problem:
EPA should revise its delegation of authority so that
Superfund managers at Headquarters review all, or virtually all, new
RODs before they are signed;
EPA should expand the National Remedy Review Board so it
can review more sites and help insure that future remedy decisions are
both technically sound and also (as required by section 121(a) of
CERCLA) cost-effective; and
EPA should expand its use of the Fund-balancing ARAR
waiver, the ``inconsistent applications of state standard'' ARAR
waiver, and the Technical Impracticability ARAR waiver to facilitate
the selection and prompt implementation of cost-effective remedies.
VI. EPA Should Reduce its Spending on Oversight of Work Performed by
Experienced Private Parties
A decade ago, then-EPA Administrator Carol Browner recognized that
EPA devotes excessive contractor dollars and excessive FTEs to
monitoring the studies and cleanup work performed by private parties
(``oversight''). In a 1995 Administrative Reform, and again in guidance
a year later, Administrator Browner pledged a 25 percent reduction in
oversight at sites with capable and cooperative PRPs.
Despite that 1995 proclamation, however, EPA has yet to implement
the necessary across-the-board reduction in oversight spending. In
fact, EPA has yet to embrace the general policy of tailoring oversight
levels to reflect the experience of the private party and its
contractor, the complexity of the site, the nature and strength of any
public concern, etc.\7\
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\7\ EPA's RCRA corrective action program, on the other hand,
embraced the policy of tailored oversight some years ago. See 65 Fed.
Reg. 58,275 (Sept. 28, 2000) (announcing release of guidance document
entitled ''Results-Based Approaches to Corrective Action: Tailored
Oversight'').
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Moreover, EPA does not separately track its own spending on
Superfund oversight, thereby limiting the potential for sound financial
management. What is clear is that EPA could free up additional
resources for remedial construction by fulfilling its 10-year-old
pledge to reduce its oversight of work performed by experienced private
parties. Accordingly, we recommend that EPA take the necessary actions
to reduce its oversight spending.
VII. The Removal Program Should be Refocused on Its Original Purpose of
Addressing Emergency Situations
The Superfund removal action program was designed primarily to
address emergency situations. Yet today, emergencies account for barely
one-fourth of all removal actions taken by EPA. The other three-fourths
consist of ``time-critical'' actions, where EPA believes work should be
commenced within 6 months, and ``non-time-critical'' actions. Of the
2,440 removal actions commenced during the period from FY 1992 through
fiscal year 1999, a total of 1,892 (77.5 percent) were either ``time-
critical'' or ``non-time-critical'' actions.\8\
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\8\ K. Probst, et al., Superfund's Future--What Will It Cost? at
25, Table 2-4 (2001).
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Many of these non-emergency actions are undoubtedly beneficial. But
it is unclear why a continuing $250 MM/yr Federal program is needed to
perform primarily non-emergency actions. Superfund removal actions
should focus on those sites, orphan or otherwise, that need immediate
action to address an actual emergency.
The point here is not to launch a debate over the precise contours
of the term ``emergency.'' Rather, the idea is to limit the removal
program to sites that present an emergency under some reasonable
definition of that term. Most Superfund removal actions today, by EPA's
own definition, do not involve emergencies in any sense of the term.
Accordingly, the removal program should be refocused on its original
purpose. As with all of the measures that we are recommending today,
EPA can accomplish this change as a matter of policy, without the need
for legislative action or rulemaking.
__________
Statement of Robert Spiegel, Edison Wetlands Association
Thank you for the opportunity to testify here before you. I am here
to tell the committee about how the funding shortfall in the Federal
Superfund program is putting people in danger and hurting our shared
environment. Since 1989, I have worked as the founder and executive
director of Edison Wetlands Association (EWA), the only non-profit
organization in New Jersey working to get toxic sites cleaned up in a
thorough and timely manner. I personally have worked actively to ensure
the remediation of over 75 toxic sites in New Jersey, including over 20
Federal Superfund sites. With EWA's increasing success, we have also
been brought in to help on toxic sites in other States, including New
York, Nebraska and California.
As you know, funds have all but dried up for Orphan Sites, or sites
that lack a viable Responsible Party. While the U.S. Environmental
Protection Agency (USEPA) publicly states that their cleanups are on
track, it is clear at many sites I work on that work is proceeding at a
far slower pace or not at all. This is especially troubling because
many of New Jersey's Superfund sites are located in densely populated
residential areas, and thus their impacts to public health and the
environment are immediate and direct.
The residential factor makes the Superfund program all the more
vital. As home to the industrial corridor that helped build the entire
Nation, New Jersey holds approximately one-eighth of all Federal
Superfund sites, despite being the fourth smallest State in the Nation.
In fact, we can claim a number of unfortunate titles. New Jersey is No.
1 in its 18,000 known contaminated sites, No. 1 in population density,
and No. 1 in the prevalence of cancer. As a parent and lifelong
resident of New Jersey, I cannot help but wonder how much these factors
are related.
To illustrate the problem at hand, I would like to talk about one
site in particular, less than a mile from my home: the Cornell-Dubilier
Superfund Site in South Plainfield, New Jersey. On the USEPA's own Web
site, Cornell-Dubilier is listed as a site where public exposure is not
under control. Now called Hamilton Industrial Park and home to
approximately 15 active businesses, the site is approximately 26 acres
and sits in a working-class residential and industrial area.
From 1936 to 1962, Cornell-Dubilier manufactured electrical
components and capacitors, and they allegedly dumped PCB-containing
materials directly onsite. In addition to PCBs, there are still 26
other contaminants of concern onsite, including metals and
trichloroethene. The contamination impacts onsite soil, groundwater
both onsite and offsite, and stream sediments in the Bound Brook, which
flows into the Raritan River and ultimately Raritan Bay. PCB capacitors
labeled ``Cornell-Dubilier'' were also found buried in the nearby
Woodbrook Road dumpsite, which is now a separate National Priority List
Superfund Site.
Even in the State with more contaminated sites than any other,
Cornell-Dubilier stands out. The U.S. EPA's own risk assessment found a
cancer risk in excess of 3 out of 100. At public meetings for this
site, we are constantly approached by residents living nearby who ask
how they can get cancer studies for their neighborhoods, which have
very high prevalence of cancer and other illnesses. Likewise, some of
the highest levels of PCBs in the State are found in fish caught in the
Bound Brook adjacent to the site. Many local residents still
unknowingly fish these waters, primarily low-income residents who fish
to feed their families. Some cannot read the few signs warning of the
dangers of fish consumption, which are posted in English only.
EWA first got involved at this site after we received a phone call
that children were riding their bikes around the disposal areas in the
rear of the property. We also learned that a truck driving school was
operating on one of the site's most contaminated areas, creating toxic
dust clouds that moved through the adjacent community. What amazed us
is that it seemed to be common knowledge by the site owners, elected
officials and regulators that this area was highly contaminated. Yet no
one seemed willing to take the lead to protect the children or relocate
the truck driving school.
We walked the site with USEPA personnel, who recognized the site's
public exposure and wanted to work with us to have a fence installed
and urge the Township to relocate the truck driving school. Yet 21
years after USEPA first got involved with the site, the scope of the
contamination remains staggering. Following are some of the current
exposures at the site:
People still work inside the contaminated onsite
buildings, including women of child-bearing age. Dust inside the
building is contaminated with high levels of PCBs, lead and other
chemicals. The USEPA calculated the Hazard Index for PCBs alone at 150.
To give you an idea of what that means, anything above 1 requires USEPA
action--and PCBs alone are 150!
Local families continue to consume fish caught from the
adjacent Bound Brook, even though they contain the some of the highest
levels of PCBs in the State of New Jersey.
Children continue to trespass on the site regularly, due
to poor site security and a lack of adequate sign postings.
Groundwater remains highly contaminated with chlorinated
solvents, PCBs and many other chemicals. USEPA still does not know the
extent of the groundwater plume, its direction or how much of an impact
it has on public health.
Homes around the site still contain unacceptable levels of
PCB and require additional testing and remediation. Daycare centers and
other buildings around the site were found to be contaminated enough to
require remediation.
These public health risks are even more sobering when you realize
that the USEPA has had 21 years to address them. Yet after all this
time, the best plan USEPA could come up with was to leave the majority
of PCB contamination onsite, while ignoring large amounts of soil that
New Jersey considers a residential hazard. We believe the USEPA has
refrained from planning a more comprehensive cleanup because of their
lack of funds.
Our engineering expert, Richard Chapin of Chapin Engineering, holds
over 25 years experience in remediating contaminated sites. On our
behalf, he has reviewed USEPA plans and the underlying contamination
issues at this site. His review of the Agency's Record of Decision
(ROD) has noted the following problems:
The ROD addresses approximately 278,000 cubic yards of
PCB-contaminated onsite soil. Yet the only soil that will definitely be
removed is 7,500 cubic yards of soil with PCBs at greater than 500
parts per million. Less than one-half of the balance will be treated,
if possible, to reduce the PCB level to below 500 parts per million.
The overwhelming majority of the soil will simply be left onsite under
a ``cap.'' Since the estimated cost of this ``cleanup'' is over $90
million, it certainly seems like a lot of money to do little more than
covering the site.
The ROD assumes the cap will be maintained for a 30-year
period by an undefined person or corporation, and assumes that entity
will readily take responsibility for a massive deposit of PCB
contamination. After that 30-year period is over, the site simply falls
into an undefined void. In essence, the USEPA is creating a major PCB
landfill.
Site buildings are highly contaminated with PCBs, and
demolition and offsite disposal is the preferred long-term solution.
Yet nothing has been done to clean up the immediate hazards to current
workers in the buildings.
Highly contaminated groundwater is not delineated and
offsite contamination of the Bound Brook has yet to be addressed. Given
the potential magnitude of these problems, an additional $50 million
could easily be required to complete the cleanup.
Rather than wait indefinitely for the USEPA's next action, EWA
recently tested the Bound Brook both upstream and downstream of
Cornell-Dubilier. Our findings were alarming, to say the least. While
no PCBs or volatile organic compounds were found in surface water
upstream, TCE was found in surface water downstream of the site at over
200 times the New Jersey Surface Water Quality criteria. Cornell-
Dubilier's contaminated groundwater is uncontrolled and apparently
discharging significant amounts of TCE into the Bound Brook. Finally,
we also found PCBs in the soil of a publicly accessible bank of the
Bound Brook downstream of the site at a concentration exceeding State
criteria. This area is not even addressed by USEPA's proposed cleanup.
While USEPA maintains that the cleanup is moving forward, this
illusion is just a house of cards ready to collapse. As the following
concerns indicate, the Agency is making a promise they cannot deliver.
The remediation of the onsite soils and building alone is
estimated to cost $90 to $100 million. With the site cleanup in final
design, the USEPA has publicly stated that they expect to begin work
this fall, and that funding is available to cover the costs. Yet the
Potential Responsible Parties have already indicated to the Agency that
they do not have such funds. So where will the funds come from to begin
a nearly $100 million cleanup? Privately, the USEPA acknowledges that
they are unsure where those funds will come from, let alone the
additional millions needed to address the groundwater and offsite
contamination.
USEPA and their sister Agency, the Agency for Toxic
Substances and Disease Research (ATSDR), continue to allow people work
in the onsite buildings despite the extremely high levels of
contaminated dust in the building. If the cleanup must be delayed,
USEPA and ATSDR should at least protect public health by immediately
closing down the building.
Instead of this common-sense solution, USEPA has relied on
cheap, unregulated institutional controls, putting the health of the
workers and their families at risk by letting operations continue in
these toxic buildings. USEPA's lone action to address the public health
concerns was to direct the property owner to have the workers wash
their hands and clean their shoes before leaving the buildings. They
implemented no oversight, and to this day, the Agency has not checked
with the tenants to ensure their recommendations are being followed. As
a result, USEPA is continuing to allow unsuspecting workers to track
toxic dust out of the buildings to potentially contaminate their homes.
With USEPA's glaring lack of transparency about the
funding for Cornell-Dubilier's cleanup, we can only wonder how many
communities around the country are being led to believe there is
funding available, when the Agency clearly knows funds are scarce.
My organization is not sitting back and waiting for USEPA to win a
$100 million lottery so the cleanup of Cornell-Dubilier can begin. We
are closely monitoring the cleanup process for this disgusting
nightmare of a site, and working with the New Jersey Department of
Environmental Protection, local community groups and other non-profits
like the Work Environment Council to ensure USEPA protects public
health here, as we do at other sites across New Jersey. At the Ringwood
Mines/Landfill Superfund Site, we have been successful in jump-starting
the cleanup and re-listing of this Ramapough Mountain Indian Tribe
community and a State Park where Ford Motor Company dumped toxic lead
paint sludge, but this only occurred because Ford is a viable Potential
Responsible Party. And at the former Chemical Insecticide Corp.
Superfund Site (CIC) in Edison, where children once played in
contaminated creeks and ``green rabbits'' once roamed with fur tinged
green by a herbicide manufactured onsite, our advocacy and a successful
USEPA cleanup now has the site so clean it is slated to become a
community park.
The CIC cleanup, I should note, occurred just before the Superfund
ran dry. Since then, we have noticed an alarming trend within USEPA for
slower and less protective cleanups, along with fundamental and
institutional changes within the Agency. Among them are:
A Shroud of Secrecy.--USEPA appears to have gone into a
bunker mentality when it comes to limiting public access to documents
with information that impacts public health. My organization submitted
a Freedom of Information request for a list of sites in Region 2 where
exposure is not under control, but USEPA failed to comply. While USEPA
continues to mislead the public about the funding shortfall that is
affecting sites across New Jersey and the Nation, my organization works
to protect health around other Superfund sites, such as Imperial Oil in
Marlborough, Martin Aaron in Camden, and Horseshoe Road in Sayreville.
But with so many other Superfund sites across the State, we simply
cannot serve as watchdog for all of them.
Institutional Failure.--USEPA insiders have told us that,
except under the most egregious situations, the Agency no longer
utilizes interim remedies at Superfund sites. While interim remedies
often protect human and environmental health in the short-term, USEPA
fears that taking an interim action will lower their chances of
receiving funding for their final remedies. In addition, no matter how
bad the contamination levels or the public exposure, USEPA no longer
finds an imminent health threat on their sites, as that would force
immediate remediation for which there is no real funding.
Misleading the Public.--As the Cornell-Dubilier case
indicates, Agency's public stance has become one solely based on crisis
management. From speaking to a number of USEPA case managers, while
they say whatever is necessary to pacify members of the public and
elected officials, privately they admit that the funding source for all
of these pending site cleanups is one giant question mark.
While we look at the vast array of environmental problems like
global warming and overdevelopment, we must not forget another
inconvenient truth. Without the Superfund tax reinstated, there will
not be funding available to clean up all the Cornell-Dubiliers, and the
Ringwoods, and the Omaha Leads, in the United States. I invite you to
join us in touring these sites to see their first-hand impact on
children and families, or even to tour similar Superfund sites in your
State.
It is a real shame that in a country as wealthy as the United
States, we cannot protect the health of our children, our most valuable
resource. With the recent record profits for the ultra-wealthy chemical
and oil industries, it is not asking too much for polluters to pay for
the cleanups of their contamination.
Superfund was a promise the Federal Government made to clean up
toxic nightmares left by industry. I come before you today to ask that
you keep that promise. Without that tax and a strong commitment from
you, our Nation's trusted leaders, the promise is broken again and
again--one community at a time.
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