Good morning, Mr. Chairman, and Members of the Committee. I am pleased to have this opportunity to appear before you to describe the Superfund program and discuss legislative reform of Superfund in the 105th Congress.
Superfund is an important, and above all, a necessary program, dedicated to cleaning up our nation's hazardous waste sites. EPA has worked closely with the Agency for Toxic Substances and Disease Registry (ATSDR) in evaluating the impacts of these sites on public health. ATSDR studies show a variety of health effects that are associated with specific sites, including birth defects, cardiac disorders, changes in pulmonary function, impacts on the immune system (the body's natural defense system from disease and sickness), and increases in chronic lymphocytic leukemia. These findings support EPA risk estimates that show the impacts of these sites on public health. EPA also works with other federal agencies to assess the impacts of hazardous material releases on natural resources and the environment. Together, the efforts of these agencies, working with EPA, provide the basis for targeting cleanups to protect public health and the environment, and show the need for Superfund.
The Clinton Administration remains committed to responsible, Superfund legislative reform. We are also committed to participating in a process by which Republicans, Democrats, the Administration and a broad cross-section of stakeholder representatives work together to build consensus on the elements of Superfund legislative reform. As drafted, the Administration does not believe S. 8 provides the basis for consensus based legislative reform. The Administration is ready to work with you to craft Superfund reform legislation that can attract broad consensus support. Only through a consensus based legislative process can we craft a proposal that is fully protective and delivers on our commitment to the American people to accelerate toxic waste cleanup. By developing a broad consensus based process, we believe we can achieve Superfund reform in the 105th Congress.
We are determined that our third try at legislative reform address today's Superfund program, not out of date problems now resolved. The Superfund program is fundamentally different and better. It is faster, fairer, and more efficient -- reality, not just rhetoric-- than when the legislative debate started four years ago. Responsible legislative reform must build upon initiatives and reforms that have brought about program improvements, and must address remaining legislative barriers to success with an eye toward the 21st Century, in which we can all hope to see less exposure from toxic waste sites for all Americans, and the return of these resources to productive reuse.
My purpose today is threefold: 1) to forge an understanding of where the Superfund program is today by sharing with you the substantial accomplishments EPA has achieved over the past few years, not only maintaining, but accelerating the pace of cleanup through three rounds of Administrative Reforms; 2) to discuss a vision and potential components for responsible Superfund legislative reform; and 3) to discuss our concerns with S. 8, which fails to meet our principles for responsible, Superfund legislative reform in this Congress.
Finally, the Administration remains concerned over the expiration of the authority to replenish the Superfund Trust Fund. Without the availability of these funds, the Administration will be unable to continue cleaning up sites at the current pace, or guarantee our ability to respond to environmental threats.
A FUNDAMENTALLY BETTER SUPERFUND PROGRAM
Proof of a faster, fairer, more efficient Superfund program can be found in three simple indicators: first, We have completed cleanup at 423 sites on the National Priorities List, and 485 more are in construction. We have reduced by more than a year the average duration of the long-term cleanup process, with much faster cleanups at sites using presumptive remedies. The President's budget request for Fiscal Year 1998 allows us to establish a new cleanup goal of 900 completions by the end of the year 2000, representing approximately two-thirds of the sites on the NPL. Our most recent analysis make us optimistic that we can achieve our goal of a 20% reduction, or two years, in the total cleanup process time; and second, responsible parties are performing or funding approximately 75% of Superfund long-term cleanups, saving taxpayers more than $12 billion. Meanwhile, EPA has succeeded in removing over 14,000 small contributors from the liability system and has, in one year, offered orphan share compensation of more than $57 million to responsible parties willing to negotiate long-term cleanup settlements; and third, costs of cleanups, are decreasing because of a number of factors, including: the use of reasonably anticipated future land use determinations, which allow cleanups to be tailored to specific sites; the use of a phased approach or multiple approaches to ground water cleanups; EPA's current policy of concentrating on principle threats at sites, not the entire site; and EPA's 15 plus years of implementing the program provided greater efficiencies and lower costs when selecting cleanup options.
In addition, through the commitment of EPA, State, and Tribal site managers, and other Federal agencies, EPA has achieved real results for public health and the environment while experimenting with and instituting changes to our cleanup process through three rounds of Administrative Reforms. EPA is committed to further administrative and regulatory (including NCP) improvements in the Superfund program in the years ahead. Our objectives for administrative reforms have been to:
-- Protect public health and the environment over the long-term, while lowering the cost of cleanups
-- Increase the pace of cleanups
- Preserve the principle that parties responsible for contamination should be responsible for cleaning it up, while promoting fairness in the liability scheme, and reducing transaction costs and litigation
-- Involve local communities, States, and Tribes in decision making
-- Promote economic redevelopment at Superfund sites
The success of the Administrative reforms has been demonstrable. In a recent report, the Superfund Settlements Project (SSP), a private organization comprised of industry representatives, published in December 1996, acknowledges EPA's "substantial" track record "since EPA began implementing the October 2,1995 administrative reforms...especially in light of the severe obstacles that EPA encountered during fiscal year 1996 as it began implementation of these reforms." These positive comments, from a group of large corporations involved in many Superfund cleanups, echo the Agency's recent Superfund Administrative Reforms Annual Report, for Fiscal Year 1996, which details specific program accomplishments.
PROVIDING PROTECTIVE CLEANUPS AT LOWER COSTS
EPA has initiated a number of administrative reforms which promote cleanups that are technologically and scientifically sound, cost-effective and appropriately consistent. These reforms will lower cleanup costs, while assuring long-term protection of human health and the environment.
National Remedy Review Board
EPA has achieved significant success in creating substantial future cost reductions for parties at complex, high-cost Superfund sites across the country, by creating a national board of technical and policy experts within EPA to review high cost, long term cleanups. This newly established National Remedy Review Board, comprised of both Headquarters and Regional experts is providing targeted review of cleanup plans, prior to final remedy selection, without delaying the overall pace of cleanup. The Board's preliminary analysis indicates it has identified potential reductions in the range of $15-30 million in total estimated future costs for reviews completed during FY96.
Using Technology and Science Updates to Save Money
Approximately $280 million in future cost reductions are predicted as a result of the ~Agency~~~'s review and updates to previous remedy decisions made in the early years of the Superfund program. These early remedies were based on "state-of-the-knowledge-and-practice" available at the time. Where science and technology have advanced and adequate levels of public health and environmental protection are assured, EPA is revising remedies where future cost reductions can be achieved while still preserving appropriate levels of protection, and the current pace of the program.
Better Land Use Assumptions in Remedy Selection
EPA has improved its cleanup decisions by consistently using reasonable assumptions about current and future land use. Recognizing that land may be appropriate for uses other than residential use can yield a more realistic risk assessment and less expensive remedy. EPA is working with local land use planning authorities, other government officials and the public as early as possible during site investigation to develop reasonable land use assumptions to use in the decision making process. EPA also is making extra efforts to reach out to communities which may have environmental justice concerns to ensure that they are fully informed and able to participate in these decisions. Currently, about 60% of EPA's Records of Decision (RODs) include a land use scenario other than residential land use, typically where there is no residential land use on-site or adjacent to the site.
Setting Priorities for Cleanups
To ensure that available funds are directed to the highest priority response projects on a national basis, EPA established a National Risk-Based Priority Panel (Panel) in August 1995. Prior to this reform, individual Regions established the relative priority of their cleanup projects which were then funded on a first-come, first-served basis. This reform established a national priority system to fund cleanups based on the principle of "worst problems first." The Panel evaluates proposed cleanup actions, looking at the following factors: risks to humans and the ecology; stability and characteristics of contaminants; and economic, social and program management considerations. With the exception of emergencies and the most critical removal actions, cleanup projects are generally funded in order of priority based on the recommendations of the Panel. By early 1997, the panel had ranked projects approaching $1 billion in cleanup costs.
INCREASING THE PACE OF CLEANUPS
The completion of 423 Superfund toxic waste site cleanups (as of February 28, 1997) is a hallmark of the improved pace of cleanups. At the Lord-Shope Landfill near Erie, Pennsylvania (the 400th site to be cleaned up), parties used innovative technology to remove contaminants. Tons of industrial wastes had been dumped over 20 years (including organic and inorganic chemicals, solvents, cooling acids, and caustic agents) that resulted in ground water contamination. Today, the community no longer needs to worry about the safety of drinking water, the impact on farmland near the site, the effect on property values of their homes and businesses, or the possibility of children wandering onto the site and playing among the drums of toxic chemicals.
EPA (with the support of the Corps of Engineers and the Bureau of Reclamation and their cleanup contractors) also has implemented reforms which streamlined its rapid action cleanup authority. EPA's Superfund Accelerated Cleanup Model (SACM) accelerates cleanup and risk reduction at sites by consolidating site-assessment into a one-step process. SACM includes the following initiatives: taking early actions while assessing long-term cleanup; using "presumptive" remedies where appropriate; initiating enforcement activities earlier; and addressing the worst threats to people and the environment first. SACM reduces cleanup time through a single, continuous site assessment and early action process.
The Agency is saving time and money by using standardized or "presumptive" remedies for certain types of sites. Presumptive remedies are based on scientific and engineering analyses performed at similar Superfund sites and are used to eliminate duplication of effort, facilitate site characterization, and simplify analysis of cleanup options. EPA issued presumptive remedy guidances for the following: municipal landfill sites; sites with volatile organic compounds in soil; wood treater sites (with an update two years later); and a ground water presumptive response strategy. Regions are reporting significant reductions in costs and time required to complete remedies. A recent Office of Inspector General report focused on an independent review of the use of a presumptive remedy and concluded that "Use of a Presumptive Remedy increased consistency in decision making by taking advantage of lessons learned at similar sites, and allowed speedup of the Feasibility Study process."
PROMOTING FAIRNESS IN ENFORCEMENT
As I have stated, a core principle of the Superfund program is that the parties responsible for contamination should be responsible for the cleanup. EPA's "Enforcement First" strategy has assured that responsible parties perform or pay for approximately 75% of long-term cleanups, thereby conserving the Superfund trust fund for sites for which there are no viable or liable responsible parties.
Over the course of the Superfund program's implementation, however, stakeholders have expressed a variety of concerns regarding the fairness of the liability system. Issues related to excess litigation and associated transaction costs, the perceived inequities in the issuance of cleanup orders, the liability of parties contributing small amounts of hazardous substances to Superfund sites, the liability of parties that have limited assets, and the liability associated with the disposal of municipal solid waste, have all contributed to criticisms of the program. Through Administrative Reforms, EPA has addressed these concerns.
Recognizing the Orphan Share
EPA has fundamentally changed the way it conducts settlements at Superfund sites through implementation of its 1996 "orphan share compensation" policy. Under the new orphan share reform, EPA offers to forgive a portion of its past costs and projected future oversight costs during every settlement negotiation for long-term cleanup or non-time critical removal, to cover some or all of the orphan share at the site. The orphan share policy encourages parties to settle, rather than to litigate, and enhances the fairness and equity of settlements. Without a settlement, responsible parties at a site are potentially liable under the Superfund law for the entire cost of the cleanup, including the share that might be attributable to other parties that are insolvent or defunct. EPA's new approach creates a major incentive for responsible parties to agree to perform the cleanup without litigation and the associated transaction costs. In FY96, the Agency offered over $57 million in orphan share compensation to potential settling parties across the United States.
Getting the "Little Guy" Out Early
EPA's reforms are removing thousands of small volume waste contributors from the liability system. PRPs that are liable for cleanup costs have sometimes sued huge numbers of small businesses that had little or no connection to the toxic contamination - sometimes simply by naming every business in the local yellow pages as a defendant in a contribution lawsuit. EPA's reforms have responded to the burden this can place on parties that made a very limited contribution to the pollution at a site by using its settlement authority to remove small volume waste contributors from Superfund litigation. To date, the Federal government has completed settlements with over
14,000 small volume contributors of hazardous waste at hundreds of Superfund sites. These settlements protect the settling parties from expensive private contribution suits. In addition, EPA has stepped in to prevent the big polluters from dragging untold numbers of the smallest "de micromis" contributors of waste into contribution litigation by publicly offering to any such party $0 (i.e., no-cost) settlements that would prevent lawsuits by other PRPs.
Site Specific Special Accounts
Prior to the Administrative Reforms, any funds recovered in early settlements at a particular site were usually deposited in the Superfund Trust Fund, and could not be spent until appropriated. When appropriated, these funds could be spent at other sites. Through the use of Site Specific Special Accounts, EPA is able to direct settlement funds, as well as interest earned on those dollars, to future response actions at a specific site. As of August 31,1996, $226 million in principal, and $35 million in interest, had been set aside for exclusive use at specific sites.
Equitable Issuance of UAOs
To address the criticism that EPA routinely issues cleanup orders under section 106 of the Superfund law (unilateral administrative orders or UAOs) only to a subset of the parties identified at a particular site, EPA has established a protocol requiring a detailed explanation of the basis for not including certain parties when issuing a UAO. This new requirement will ensure greater equity among parties receiving UAOs, because these orders will be issued to the largest manageable number of PRPs at each site.
EPA is conducting pilot projects that test a fundamentally different approach to the allocation of Superfund costs (called the allocations pilots) in order to promote fairness in settlements. Allocations are one approach to determine PRPs' share of cleanup costs which may be used to settle their liability with the United States. A neutral party, known as an allocator, selected by parties to the process, conducts an out-of-court allocation. The allocator assigns shares of responsibility for cleanup costs among all PRPs at a site. In concert with an allocation, EPA expects to pay the "orphan share," which includes the shares of parties which are defunct or insolvent. EPA has offered allocation pilots at 12 Superfund sites.
EPA is evaluating the pilot projects and has learned valuable lessons about the relationship of allocations to settlement. We have learned, for example, that some PRPs prefer not to participate in a formal allocation process, instead preferring to allocate shares of responsibility among themselves. We have also learned that a single allocation process is inappropriate for all sites, and that any process must be
flexible to meet site-specific needs and promote settlements. We hope our on-going evaluation of the allocation pilots will continue to reveal valuable information about the process of conducting allocations.
Reducing Costs for PRPs Through Reduced Oversight
PRPs incur costs at sites in part because of EPA's need to oversee the quality of cleanup work. Oversight is the process EPA uses to ensure that all studies and work performed by PRPs are technically sound and comply with statutory requirements, regulations, guidances, policies, and the signed settlement agreement. Oversight may include reviewing reports submitted for approval, ensuring interim cleanup milestones are met, or conducting site visits. As the Superfund program matures, parties performing cleanup work have developed a considerable body of experience in conducting response activities at sites. EPA can reduce oversight of such parties while continuing to exercise sufficient oversight to ensure that the work is performed properly and in a timely manner.
EPA Regions have initially identified approximately 100 sites where reductions in oversight of ongoing work for cooperative and capable PRPs have occurred or will occur - significantly reducing PRP costs at some of these sites. EPA also may look at opportunities to involve communities in deciding the appropriate level of PRP oversight.
INVOLVING COMMUNITIES AND STATES IN DECISION MAKING
The Agency supports the principle that communities must be involved in the cleanup process from the time a site is discovered to the time it is finally cleaned up.
Involving Communities in Remedy Selection
EPA is promoting "consensus-based" approaches to the remedy selection process by involving community stakeholders in site pilot projects. This effort is intended to empower local citizens and other stakeholders to be involved in the remedy selection process that ultimately results in EPA choosing common sense remedies that meet statutory and regulatory requirements. For example, at the Lower East Fork Poplar Creek Site in Oak Ridge, Tennessee, the cleanup strategy, agreed to in August 1995, reflected the concerns of the local community in the remedy selection process. This included input into a change in cleanup goals. Through a citizen working group established by the Department of Energy, working in partnership with EPA and the State of Tennessee, the citizens' influence on the remedy selection decision averted the expenditure of more than $100 million and helped protect human health and the environment more quickly.
EPA established an Ombudsman in every Region to serve as a direct point of contact for stakeholders to address their concerns at Superfund sites. Prior to this reform, stakeholders raised concerns with Regional personnel, but had no formal mechanism for having their issues elevated. The Ombudsmen now serve as facilitators for stakeholders on concerns that have not been resolved between Regional personnel and the stakeholder through informal means. The Ombudsman reports to a top Regional management official in every Region to assure management attention to issues raised.
Improving Public Access to Superfund Information
EPA recognized that improving communication with stakeholders and improving access to Superfund information will help the public become more aware of, and informed about, Superfund. EPA is using electronic tools to improve communication, including having sites for both the Office of Emergency and Remedial Response (OERR) and the Office of Site Remediation Enforcement (OSRE) on the Internet, with separate pages devoted to Superfund reform. Each Region also is developing Internet "home pages" which will include information on Regional Superfund programs, such as Superfund site lists, site-specific information, successful site cleanup actions, and links to State Superfund activities.
State Programs Speed Cleanup of Non-NPL Sites
EPA recognizes the important role that State environmental agencies have in encouraging economic redevelopment of brownfields. EPA plans to provide $10 million, earmarked in FY97 appropriations, to encourage the development or enhancement of State programs that encourage private parties to voluntarily undertake early protective cleanups of less seriously contaminated sites, thus accelerating their cleanup and their redevelopment. EPA recently issued a memorandum setting out an interim approach for its relations with State voluntary cleanup programs. The memorandum includes criteria for State voluntary cleanup programs that are enabling EPA and the States to start negotiating a division of labor between EPA and the States in memoranda of agreement (MOAs) as well as ensuring protection of public health and the environment. Nine States have now signed MOAs with EPA regarding sites cleaned up under voluntary cleanup programs. The growing number of States creating and operating voluntary cleanup programs provides a unique opportunity to respond to the brownfields cleanup and redevelopment issues.
Greater Power for States in Picking Remedies
The goal of this reform is to provide qualified states with an increased role in the selection of cleanup alternatives at sites on the NPL, whenever possible. States selected for this reform enter into "Participating States" agreements with EPA, through which the States conduct the remedy selection process, consistent with applicable law and regulations. Participating States supervise the remedy selection process with minimal EPA oversight or involvement, giving the State significantly more control than usual over NPL site cleanups. Selected Federal facilities are achieving similar success through incorporation of a lead agency concept in interagency cleanup agreements.
PROMOTING ECONOMIC REDEVELOPMENT
EPA is promoting redevelopment of abandoned and contaminated properties across the country that were once used for industrial and commercial purposes ("brownfields"). While the full extent of the brownfields problem is unknown, the United States General Accounting Office (GAO\RCED-95-1 72, June 1995) estimates that approximately 450,000 brownfields sites exist in this country, affecting virtually every community in the nation. EPA believes that environmental cleanup is a building block, not a stumbling block, to economic development, and that cleaning up contaminated property must go hand-in-hand with bringing life and economic vitality back to communities. The Brownfields reforms are directed toward empowering States, communities, and others to work together to assess, safely clean up, and sustainably reuse these sites. EPA efforts have been accomplished through the Brownfields Action Agenda an outline of specific actions the Agency is conducting. The initial Brownfields Action Agenda outlined four key areas of action for returning brownfields to productive reuse: 1) awarding Brownfields Assessment Demonstration Pilots; 2) building partnerships to all Brownfields stakeholders; 3) clarifying liability and cleanup issues; and 4) fostering local workforce development and job training initiatives. A new Action Agenda for fiscal years 1997 and 1998 will further identify, strengthen, and improve the commitments EPA and its colleagues can make to brownfields.
Brownfields Pilots are Encouraging Redevelopment
The Brownfields Assessment Pilots form a major component of the Brownfields Action Agenda. EPA exceeded its commitment to fund at least 50 pilots by actually funding 76 pilots at up to $200,000 each by the end of 1996. And, just this month, EPA announced the addition of two more pilots, bringing the total to 78. These two-year pilots are intended to generate further interest in Brownfields redevelopment by bringing together public and private efforts including Federal, State, and local governments and affected communities. The Brownfield pilots will develop information and strategies that promote a unified approach to site assessment, environmental cleanup, and redevelopment. Many different communities are participating, ranging from small towns to large cities. Stakeholders tell the Agency that Brownfields development activities could not have occurred in the absence of EPA efforts. As the National Community Reinvestment Coalition (NCRC) said "[W]e wholeheartedly support the EPA's Brownfields Economic Redevelopment Initiative. NCRC believes that [EPA's] multifaceted initiative represents a significant step forward by the Administration in working with distressed communities on the local level in their revitalization efforts."
Getting Sites off the "List"
Prior to reform, EPA kept track of all potential hazardous waste sites in an inventory known as the Comprehensive Environmental Response and Liability Information System (CERCLIS). Even sites where no further Federal Superfund interest was warranted remained in the CERCLIS inventory. This practice led to unintended barriers to the redevelopment of these properties because sites listed in CERCLIS could be automatically considered risky by some lenders, making it difficult for potential purchasers to secure loans to develop these properties. To avoid this result, EPA redefined CERCLIS, deleting or archiving sites from the active CERCLIS inventory. EPA has archived approximately 30,000 sites (e.g., sites where `no further federal remedial action [is] planned') from CERCLIS to date, and EPA expects to archive over 2,000 additional sites from CERCLIS per year over the next several years.
Deleting Clean Parcels from the NPL
Prior to the Administrative Reforms, EPA's policy had been to delete releases from the NPL only after evaluation of the entire site. However, deletion of entire sites does not communicate the successful cleanup of portions of those sites. Total site cleanup may take many years, while portions of the site may have been cleaned up and become available for productive use before cleaning has been completed at other portions of the site. Some potential investors or developers may be reluctant to undertake economic activity at a cleaned up portion of real property that is part of a site listed on the NPL. This reform allows EPA to delete portions of sites, as appropriate, upon the receipt of petitions from interested parties, allowing redevelopment to occur quickly. Four parcels are currently moving through the deletion process.
Removing Redevelopment Barriers Based on Liability Concerns
EPA is promoting redevelopment of contaminated properties by protecting prospective purchasers, lenders, and property owners from Superfund liability. EPA's "prospective purchaser" policy is stimulating the development of sites where parties otherwise may have been reluctant to take action by clarifying (through agreements known as "prospective purchaser agreements") that bona fide prospective purchasers will not be responsible for cleaning up sites where they did not contribute to or worsen contamination. EPA issued new guidance in May 1995, which allowed the Agency greater flexibility in entering into such agreements. The new guidance expanded the universe of sites eligible for such agreements to include instances where there is a substantial benefit to the community in terms of cleanup, creation of jobs, or development of property. Of the 50 agreements to date, 60% have been reached since issuance of the May 1995 guidance. At the Indiana Woodtreating Site near Bloomington, Indiana, the work performed under a prospective purchaser agreement will prevent contaminants from entering Clear Creek, which is a drinking water source for the City of Bloomington, Indiana.
People owning property under which hazardous substances have migrated through ground water also feared liability under the statute. EPA responded by announcing that it will not take enforcement actions under CERCLA against owners of property under which contaminated ground water has migrated, but where the property is not also a source of contamination. Further, EPA also will consider providing protection to such property owners from third party lawsuits through a settlement that affords contribution protection.
EPA has given reassurance to the lending industry and to government entities acquiring property involuntarily. EPA outlined in guidance what it considered appropriate actions a lender may undertake without becoming a liable party. In September 1996, Congress passed legislation very similar to EPA's policy and guidance on lenders. EPA also is providing assurances ("comfort/status letters") in appropriate circumstances to new owners, lenders, or developers which assure them that they need not fear incurring Federal environmental liability.
The Agency is proud of the improvements to Superfund that have been made through Administrative Reforms. Throughout the course of the reauthorization process, we have heard stakeholders express their concerns and have taken the opportunity to address those concerns. We recognize, however, that there are areas of the law that could benefit from legislative provisions. Therefore, the Administration continues to seek responsible Superfund legislative reform to further improve the program.
VISION FOR RESPONSIBLE SUPERFUND LEGISLATIVE REFORM
Legislative reform must build upon the successes and lessons learned through the Administrative Reform effort and provide solutions to the problems that cannot be addressed administratively or through regulatory change. Our goals for legislative reform are consistent with the objectives of Administrative Reforms. We want a Superfund program that protects human health and the environment through cost- effective cleanups which are reliable over the long term and foster economic redevelopment. We want a Superfund program in which those who pollute are held responsible, but allows parties to resolve their liability as efficiently as possible and does not catch inappropriate parties in the liability net. We want a Superfund program in which citizens are encouraged and supported in their efforts to participate meaningfully in the cleanup decisions that affect their lives. We want a Superfund program that supports the continued development of State and Tribal cleanup programs and fosters collaboration between the Federal, State, and Tribal governments to divide up the enormous task of hazardous waste cleanup in this country in sensible, mutually supportive ways.
LONG-TERM, COST-EFFECTIVE PROTECTION
Any legislative changes addressing cleanup decisions must, as a baseline, continue to ensure that cleanups are protective of human health and the environment over the long term. Cleanups should also be cost-effective, and foster productive reuse of contaminated property, to the degree practicable.
In order to facilitate these goals, the Administration supports addressing statutory remedy preferences and supports treatment for those wastes that are highly toxic and/or highly mobile, in light of the continuing challenges in ensuring the long- term reliability of engineering and institutional controls, as well as the limitations that containment and institutional controls place on productive reuse or redevelopment of property. It is important to note that we can see the market impacts of the treatment mandates under current law in the development of new, often in-situ technologies which are giving us more alternatives to incineration, and a decline in the costs of those technologies as they are used increasingly. These changes in the treatment market are part of the reason for the decline in estimated remedy costs I mentioned earlier.
Additionally, legislation should not alter our goal of restoring ground water to beneficial uses. Over half of this nation's population relies on ground water as its source of drinking water. Superfund has raised consciousness about the need to prevent contamination of this resource by demonstrating the consequences -- financial, technological, and practical -- of contamination that threatens real people now and future generations.
"Smart" ~groundwater remediation as EPA has defined it in a series of Administrative Reforms is another major reason for declining remedy cost estimates. In the early days of the program, we relied solely on extraction and treatment of ground water to achieve cleanup objectives. In 1995, 60% of our ground water cleanup decisions reflect extraction and treatment being used in conjunction with other techniques, such as bioremediation, underground treatment walls, or monitored natural attenuation, which is often used to reduce low levels of contaminants. In 1995, about 25% of Superfund ground water remedies included monitored natural attenuation of contamination. It is worth noting that our success in developing ground water cleanup policy is consistent and concurrent with ongoing developments in science and technology and it uses the flexibility afforded under current law. Participants in the process of defining Superfund legislative reform in this Congress will have to balance thoughtfully the desire to be clear and specific to promote transparency and certainty, and the benefits of our current flexibility that permits continuous improvements to be made as our knowledge progresses.
FAIRNESS AND REDUCED TRANSACTION COSTS
In discussing any proposed legislative changes to the Superfund liability scheme, it is imperative to retain the fundamental principle of holding the polluter responsible for the cleanup. This has been the cornerstone of our ability to obtain as many cleanups as we have, and has left the Superfund trust fund available for truly abandoned sites and public health and environmental emergencies.
The Administration would support liability reform for de micromis parties. Their liability is often less in dollars than the transaction costs they incur in defending against a lawsuit. These are parties contribute truly small volumes of hazardous waste. The government does not currently bring these parties into the system, but they have occasionally been pulled in by other parties, with expensive and unfortunate results. Last year before this very committee, we heard from Ms. Williams, who runs a restaurant in Gettysburg, Pennsylvania. She was pulled into litigation at the Keystone Superfund site, not by the government, not by the PRPs brought in by the government, but as a fourth tier of PRPs pulled into the litigation by other responsible parties. We do not believe that a party such as this should be involved in the Superfund process, and we have worked to enter into settlements with these parties to help get them out. A de micromis liability exemption would protect Ms. Williams from other over-zealous PRPs.
Last year, EPA began offering orphan share compensation during every negotiation for long term cleanup and non-time-critical removal. The work we have done with orphan share compensation has significantly enhanced the fairness of the Superfund program. Although EPA does not need statutory authority to offer orphan share compensation, EPA would support legislation creating a separate mandatory spending account for orphan share, so that funds for orphan share do not compete with cleanup dollars.
We would also like to address the liability of municipalities and others who generated or transported municipal solid waste. EPA and the Justice Department have embarked on an exercise to address this issue through additional administrative reforms. As the legislative debate proceeds on Superfund reform, statutory provisions that efficiently and fairly address the liability of municipalities and generators and transporters of municipal solid waste should be considered. In addition, we believe that we should address the issue of prospective purchasers in our efforts to make sure that we can cleanup and reuse brownfield properties.
Finally, I reiterate that any changes to the liability and enforcement provisions of Superfund must ensure that those who created the problems be held responsible for cleanup. Further, changes in the law must not compromise the availability of cleanup dollars or endanger the speed or thoroughness of site cleanups and our ability to accomplish the President's goal of completing 500 additional cleanups by the year 2000. Any exemptions or limitations on liability -- or use of Trust Fund money -- must be considered against the backdrop of these principles. Therefore, the Administration has consistently opposed, and continues to oppose site-based "carve outs" that relieve viable, responsible parties of their obligation to clean up sites.
MEANINGFUL COMMUNITY INVOLVEMENT
Through years of implementation of the program, EPA has determined that early and meaningful community involvement can increase the overall pace of cleanups. Though enhanced community involvement may add steps in the early portions of the cleanup process, this investment generally accelerates later cleanup stages, as all parties are informed and have had time to work through their concerns. EPA has learned the hard way that a decision process that alienates the people our cleanups are supposed to protect results in constant revisiting of decisions, not quicker cleanups.
We have also learned that we need a variety of tools and resources, and the flexibility to tailor the application of those tools and resources, to meet the particular needs of citizens at different sites. No two sites or communities are alike. We have citizens who are disinterested in large-scale NPL cleanups, and keenly interested citizens at smaller scale removal sites.
Consistent with our experience, we would like to see Technical Assistance Grants (TAGs) available to citizens at non-NPL sites, in addition to NPL sites. Additionally, the Administration would like to ensure direct input from citizens into the development of assumptions regarding reasonably anticipated land uses upon which remedies are based. While we support processes which build consensus within communities, the achievement of consensus should never be the price of admission into the decision making process. We must always listen to the diversity of views among citizens affected by hazardous waste sites.
ENHANCED STATE AND TRIBAL EFFORTS
In addition to the many changes and accomplishments that have occurred in the Superfund program over the last four years, the context in which the program exists is also dramatically different. We recognize and support the continued growth of the State and Tribal regulated and voluntary programs which have greatly expanded the number of hazardous waste sites cleaned up to protect human health and the environment. Superfund legislation should address greater opportunities for States and Tribes to address a full range of hazardous waste sites for which they have the necessary response capacity, while providing the financial and technical support needed to further improve existing programs. We must recognize that retention of strong cleanup standards, enforcement authorities, and sufficient resources at the Federal level provides States and Tribes with resources critical to the effectiveness of their own programs. It is particularly vital that the Federal emergency prevention, preparedness, and response capabilities, which are looked to as a model, and for support the world over, remain vital and effective.
Over the last four years, States, Tribes, and EPA have been finding their own ways of dividing up the broad universe of contaminated site work. Under this emerging model of customized partnerships, all regulators work together to determine which sites should proceed under what authorities, and under whose lead, seeking to reduce overlap and duplication in favor of more complementary, mutually supportive arrangements. In general, States and Tribes have the primary role in the process of discovering new sites and making screening decisions about which sites warrant action. In comparison to just a few years ago, States now exert substantial control over not only which sites will be included on the National Priorities List, but also in the CERCLIS inventory. By contrast, States, in many cases by their choice, are in the lead at only roughly 140 of the 1300 NPL sites. However, the more interesting story here is the tremendous variety of arrangements EPA and States and Tribes have worked out to address waste sites.
When it comes to the role of States and Tribes, Superfund legislative reform must consider comprehensively the scope of the hazardous waste contamination problem Federal, State and Tribal programs are trying to address across this country and where we are succeeding today in our efforts to organize our collective resources to achieve more protective cleanups by more parties. The types of authorities, resources, and flexibilities best suited to harness the positive forces of a Federal program in a manner which supports the cleanup efforts of States and Tribes and, through their voluntary cleanup programs, private parties, needs to be considered in that context.
The Brownfields Economic Redevelopment Initiative has achieved much initial success. The continuing value of the Brownfields Initiative is its evolution and promise for the future. To build upon these successful first steps and launch others, we must not lose sight of our overall goal to revitalize communities. Future efforts under the Brownfields Economic Redevelopment Initiative must be viewed as an important component of any Superfund legislative reform strategy. With the breadth and variety of activities and stakeholders converging on the brownfields issue, we have tried to establish a framework that articulates a complete and comprehensive brownfields program. It is against this framework that we will measure proposals regarding the brownfields.
Brownfields legislative reforms should continue the progress made under EPA's administrative reforms and address the full range of Brownfield issues including: technical assistance funding for brownfields identification, assessment, and reuse planning; cooperative agreement funding to capitalize revolving loan funds for brownfields cleanup; support for State development of voluntary cleanup programs; liability protection for bona fide prospective purchasers and innocent landowners of contaminated property; support for mechanisms for partnering with Federal, State, local and tribal governments, and other non-governmental entities to address Brownfields; and support and long-term planning for fostering training and workforce development.
In summary, the above discussion has highlighted some of the major elements we believe could be addressed in order to achieve consensus based, responsible Superfund legislative reform. Our intent is to work within the Administration over the next few weeks to develop a set of principles and associated key components for this legislative reform process. These principles will also include the topic of Natural Resource Damages (NRD), which will also be addressed in other testimony before this Committee today. When these principles are complete, the Administration will share this product with your Committee.
THE SUPERFUND CLEANUP ACCELERATION ACT OF 1997 The Administration has evaluated S. 8, the Superfund Cleanup Acceleration Act of 1997, against many of the same criteria which have guided our Administrative Reform efforts and which describe our goals for legislative reform.
was pleased to see that one of the top priorities of this body is Superfund reform. The early introduction of S. 8 reflects the commitment with which you, Mr. Chairman, have approached the legislation. The Administration's most serious concerns are that: 1) the bill may fail to ensure long-term protection of human health and the environment; 2) it will slow down cleanups; 3) it lets polluters off the hook and shifts costs to taxpayers and consumers; and 4) it provides incomplete support for communities, States, and Tribes, and economic redevelopment. But perhaps more fundamentally, S. 8 does not reflect the current status of the Superfund program, and fails to recognize the vast changes made to this program in the last 4 years.
Remedies under S. 8 would not assure protection of human health and the environment over the long term because highly toxic, highly mobile waste would not be treated and because contaminated ground water may not be cleaned up in most, if not all, cases.
Elimination of Treatment for Long-Term Reliability
While S. 8 retains a decision process not dissimilar to the current program, in which tradeoffs between cleanup options with respect to a common set of criteria are balanced to select a cost-effective response, the results would be dramatically different. S. 8 eliminates all of the treatment provisions of CERCLA, under which EPA generally seeks to reduce the intrinsic hazards of the highly toxic and/or highly mobile waste constituting the "principal threats" at a site. Treatment of highly toxic, highly mobile wastes helps ensure that any materials managed onsite over the long term would not pose a serious threat to human health and the environment, should engineering and institutional controls fail at some point in the future. And obviously, the more contaminated material that remains onsite and the higher the potential risks it poses, the less likely productive reuse of that property, or significant portions of that property, will occur. Despite improvements in our knowledge about how to make engineering and institutional controls work, significant uncertainties related to the long- term management of hazardous waste remain.
Worse still, S. 8 establishes a new "mega" technical impracticability waiver from the fundamental requirement to protect human health and the environment in addition to the existing (and continued) waiver from applicable or relevant and appropriate requirements (ARAR) waiver for technical impracticability. This "mega" waiver can be invoked if "there is no known reliable means of achieving at a reasonable cost the goals for remedy selection." As a result of this finding, the protectiveness goal is eliminated in favor of "remedial measures that mitigate the risk to human health and the environment." Under this process, cost would receive more emphasis in deciding not only the method of protection for a site, (likely to be cheap exposure controls such as fences), but whether to protect at all. S. 8 may leave the real business of cleanup to a future generation, and it reflects concerns with treatment of wastes based on old anecdotes - not the current program.
Contaminated Ground Water Will Not Be Cleaned Up
Contaminated ground water is a problem at over 85 percent of Superfund sites. With over fifty percent of the U.S. population relying on ground water for their drinking water, the Administration holds firm to the belief that this critical public health and environmental concern should continue to be addressed. I think you would agree that the citizens of this nation want and deserve a safe and reliable supply of water for drinking and household use, industry and agriculture, recreation, and many other beneficial uses, and to know that they will continue to have such a supply available for the generations to come.
Despite this, S. 8 would replace the goal under the current program to restore contaminated ground water to beneficial uses, wherever practicable, with the tragically modest mandate to "prevent or eliminate any actual human ingestion of contaminated drinking water." This goal could be met through treatment at the tap or simply by preventing the use of the water. Though S. 8 does provide for protection of uncontaminated ground water, it relies too heavily on natural attenuation to provide this protection.
Even if actual cleanup of contamination in the ground water were proposed as a cleanup alternative, S. 8 sets up a burdensome three part test which must be passed to justify its selection. The bill would require: 1) "a determination regarding the technical practicability of restoration" ; 2) a justification that demonstrates that active cleanup can "substantially accelerate the availability of ground water for use as drinking water beyond the rate achievable by natural attenuation"; and, in the final analysis; 3) consideration of active cleanup "on an equal basis" with institutional and engineering controls. Under S. 8, we may all need to buy our own water treatment plants. S. 8 reflects concerns about ground water cleanup from the 1980's - not the current Superfund practices.
S. 8 also fails to provide specific cleanup and protection standards for surface water, and adds prescriptive language regarding risk assessment, which is a glaring example of how the bill is out of touch with the Superfund program of today. Under the Administrative Reforms, EPA has met with stakeholder representatives from industry, Indian Tribes, environmental groups, and local government and citizen representatives from communities with hazardous waste sites to develop an agenda for technical improvements to the Risk Assessment Guidance for Superfund and to improving stakeholder involvement in the process of conducting a risk assessment which are very different than the technical and risk communication principles S. 8 would dictate by law. Risk assessment is a key area where policy needs to be able to evolve with new scientific understandings and changing stakeholder needs.
S. 8 DELAYS CLEANUPS
The seminal mission of Superfund is to protect public health and the environment through cleanup. To better accomplish this mission, a reformed Superfund must speed the pace of cleanup. Unfortunately, S. 8 will involve more lawyers in the process and therefore increase the time required for cleanup decisions dramatically, resulting in slower cleanups. Transaction costs will also increase commensurate with delays.
The provision for ROD "reopeners" will cause significant disruption to and delay of ongoing cleanups. The complex thresholds for reopening RODs are based solely on cost savings anticipated, and thus have little to do with modifications of RODs based on advances in science and technology. Delays and disruptions will occur at sites where cleanups are well underway, and have been accepted by the community and PRPs, yet the RODs will be reopened, unless vetoed by the Governor of the affected State. Not only will RODs have to be amended, but consent decrees and interagency agreements that incorporate these RODs would have to be modified as well. This provision will increase, not reduce, transaction costs.
Multiple Reviews of Cleanup Decisions
In a marked departure from EPA's successful Administrative Reform, which provides a review of costly remedies to see if savings can be made, S. 8 institutes a series of decision points for a "remedy review board." While the Agency's National Remedy Review Board was implemented to promote national consistency in prospective decisions in such a manner that minimizes disruptions or delays, the framework of S. 8 provides for a petition process that affects both prospective and past cleanup decisions, and provides for many disruptions and delays that can only be avoided if there is a finding that the delay is so unreasonably long that it threatens human health and the environment. These provisions do not prevent delays, which may cause increased costs as contamination spreads, nor do they give voice to the communities affected by the site caught up in this process.
Overly Prescriptive Risk Assessments
S. 8 institutes new risk assessment provisions that can only be described as redundant, expensive, and time-consuming, but without apparent benefit. The requirement for risk ranges of 10\-4\ to 10\-6\ and risk distributions and central estimates of average exposed individual risk for each facility only adds wasteful steps to the evaluation process, as a central estimate would fall within either a range or distribution, and a distribution is merely a graphical representation of a range. Additionally, because of the requirement to utilize site-specific information, instead of using valid assumptions, risk assessments will no longer benefit from time and cost savings due to the Agency's experience in performing these evaluations. Instead, risk assessments are likely to be more expensive and take more time under S. 8, delaying the cleanup. While we support appropriate uses of site-specific information in risk assessments, the bill's insistence on site-specific data for all key variables would be not only time consuming and impractical, but downright impossible for many factors.
S. 8 HAS BROAD LIABILITY EXEMPTIONS
The Administration has several concerns regarding many of the liability provisions of S. 8. The proposed legislation exempts or limits the liability of parties that are viable and liable and should remain responsible for cleanup of their sites. As an example, S. 8 exempts generators and transporters of any waste, whether municipal solid waste (MSW) or extremely hazardous waste, found at a "co-disposal" site. This provision exempts parties regardless of the hazard associated with their waste or the impact that waste may have on the cleanup. At the Delaware Sand and Gravel Site, for example, S. 8 likely would exempt major industrial generators of hazardous substances merely because they chose to dispose of their hazardous waste at a site which accepted MSW.
S. 8 also limits the liability of private owners and operators of "co-disposal" sites -- a position EPA has never endorsed. Under the terms of S. 8, major waste management companies that are liable, viable and understand the costs of this business, would be relieved of their liability. At many sites, this could mean that cleanup costs will be shifted to the Fund through S. 8's orphan share funding provisions. In fact, as S. 8 is currently written, the collective "co-disposal" provisions result in a de facto co-disposal carve out, which we believe is inconsistent with good public policy.
The co-disposal provisions raise other issues of concern. Under S. 8, a "co- disposal" landfill is one at which there "may" be a "substantial portion" of municipal solid waste. The term "substantial" is not defined. The absence of a definition is certain to encourage litigation. Further, where a site continues to receive municipal solid waste, its status may change over time. These new and vague terms are fertile ground for litigation.
The de minimis exemption found in S. 8 is another example of an exemption that is broader than is needed to address the intended parties of concern. This provision, probably intended to exempt only those very small contributors of waste which we all agree should not be forced to incur the transaction costs associated with Superfund liability, goes well beyond exempting contributors of very small amounts of waste. The 1 % cutoff of this provision potentially will exempt parties that have contributed very large amounts of hazardous waste, and may leave very few responsible parties remaining liable. For example, at the Bypass 601 Site in North Carolina, a 1 % contribution represents approximately 3 million pounds of lead-bearing materials. Only 20 of the approximately 4,000 responsible parties at this site contributed volumes in excess of 1 %. This is another example of an exemption that violates the principle that parties that are responsible for the contamination should remain responsible for the cleanup.
Finally, the liability exemptions and limitations in S. 8, when read together with the Orphan Share Funding provisions, would create an enormous obligation for the Trust Fund and could divert funds from cleanups. Because orphan share funding is not provided from a source separate from cleanup dollars, cleanups will be competing for the same dollars as the Orphan Share claimants. To make matters worse, S. 8 provides that orphan share funding is an entitlement. As such, claims for orphan share funding would be legally superior to other claims against the Fund, including the costs of cleanups.
S. 8 also requires EPA to reimburse responsible parties for costs that exceed their allocated share -- this includes in many cases, costs and work that parties have already agreed to perform. These provisions for "Fund Contribution" present several problems. First, they require EPA to repay recalcitrant parties working under an order in the same manner we would repay a cooperative party working under a consent decree. This would be a windfall to the recalcitrant parties. Second, these provisions require EPA to pay costs within 1 year. If large numbers of applications are received at once, this could cause funding shortfalls and resource drains resulting in major cleanup delays. Third, final settlements will be reopened and parties who have previously incurred the costs of negotiations will have to proceed through an allocation to determine their share of liability for the purpose of reimbursement. Such reconsideration of liability effectively duplicates transaction costs previously incurred.
Narrow and Unworkable "Illegal Activity" Exception
S. 8 attempts to prevent a person from claiming a liability exemption where a court determines, within the applicable statute of limitations, that the person violated a Federal or State law relating to the hazardous substances at issue. Because Superfund addresses the results of acts that frequently took place many decades before cleanup, and at a time when applicable laws may have been unclear, proof of illegal or culpable behavior may have been impossible at most sites, as the provision requires court action at the time of the activity.
The Allocation Process is Broad and Prescriptive
The Administration has a number of concerns with S. 8's allocations provisions. First, the large number of sites subject to a mandatory allocation will result in extraordinary allocation costs, will increase transaction costs, and will slow the settlement process. S. 8 requires formal and prescriptive allocations at all multi-party sites on the NPL where post-enactment costs are outstanding, even where the parties are exempt under S. 8. In addition, Under S. 8, the allocator alone makes the determination as to which parties not already settled out are to be considered exempt or liable. These provisions preclude EPA from excluding small volume contributors or parties with an inability to pay, and thus from protecting them from the transaction costs associated with an allocation. As drafted, courts could interpret S. 8 to require EPA to accept "cashout" settlement offers. This provision could rapidly turn Superfund into a public works program, with the government undertaking the cleanups. Finally, S. 8 allows no means for the allocation process to be set aside if some parties wish to settle, rather than proceed with the allocation. This allows just one party to hold other parties hostage, even in cases where a settlement could be easily reached.
In 1994, as part of Administrative Reforms, EPA implemented an Allocations Pilot Project at 12 Superfund sites. Although the pilots are not yet complete, much has been learned about the strengths and weaknesses of the allocations process. Based on this experience, EPA cannot support a mandatory allocations process at every multi- party site. For example, some responsible parties do not want to use an allocation process, even where EPA has offered orphan share compensation. Based on our experience with allocating and our allocation pilot projects, EPA is reevaluating the need for legislation establishing a detailed allocations process.
Other Liability Concerns
S. 8 imposes a bar on additional enforcement, cost recovery or even private party actions against a party after the issuance of an administrative order, even in situations where an order is used as an interim measure to address an emergency, or where orders are used to achieve portions of work at large or complex sites. Another provision of S. 8 precludes federal or administrative enforcement action at any facility that is subject to a State remedial action plan. There are no exceptions to this provision for emergencies, threats to human health or the environment, or in cases where the State requests EPA to act. S. 8 further requires that where a facility is not subject to a State remedial action plan, that is, in cases where the State is not taking the lead, all CERCLA section 106 orders issued by the U.S. relating to that facility cease to have effect after 90 days if the State does not affirmatively concur on the order. This would put a huge burden on the States, creates a potentially duplicative system, and could disrupt cleanups. Each of these provisions inappropriately impose restrictions on the ability of the U.S. to enforce federal law, and to act to protect public health and the environment.
S.8 PROVIDES INCOMPLETE SUPPORT FOR COMMUNITIES
The Administration supports the principle that communities must be involved in the cleanup process from the time a site is discovered to the time it is finally cleaned up. Because one out of four Americans lives within five miles of a hazardous waste site, Superfund is a Federal program that truly has local impacts. Additionally, EPA recognizes and supports the continued growth of State regulated and voluntary programs, and the successes States have achieved in addressing their sites.
Community Response Organizations
While S. 8 adds many provisions regarding enhanced community involvement, there are significant weaknesses. The bill establishes Community Response Organizations (CRO) to serve as the primary conduit of information to and from the community to appropriate Federal, State and local agencies and PRPs concerning development and implementation of remedial actions. Among the concerns the Agency has with the provisions addressing communities, the CRO provisions limit participation to the remedial action phase of cleanups. We support meaningful community involvement throughout the cleanup process and from the earliest possible opportunity during site assessment and before NPL listing. The Agency supports giving substantial weight to CRO recommendations on future land-use and other significant decisions throughout the cleanup process. The CRO should represent community concerns directly to the Agency, as opposed to the mere requirement for CRO consultation (assuming a CRO exists) on input from the local land use authority. Unfortunately, involvement of this type is absent from the provisions of S. 8.
Technical Assistance Grant Limitations
Another concern with the community involvement provisions of S. 8 is the implementation of a changed Technical Assistance Grant (TAG) program. The purpose of the TAG program is to provide local citizens with resources to obtain and evaluate technical information. S. 8 requires that if a CRO exists, it is the preferred recipient of a TAG. Aside from the inherent conflicts of interest that may arise from PRP participation in CROs, by requiring that the TAG be awarded to a CRO, the bill eliminates the opportunity for other community-based organizations to access TAG funds. Giving preference to CROs when awarding TAGs is not the way to ensure that the local citizen's groups will bring an equal voice to the table. In addition, S. 8 limits TAG grants to sites listed or proposed to the NPL, limiting community involvement in other facets of the Superfund program (i.e., removal actions and non-NPL cleanups).
S. 8 PROVIDES INCOMPLETE SUPPORT FOR STATES AND TRIBES
Problematic State Delegation Process
S. 8 sets up an elaborate "menu" approach for providing delegation of the Federal program to States, which allows States to pick and choose authorities they would like to undertake. Unlike prior legislative provisions that had EPA support, it raises the potential for increased delays and costs due to uneven divisions of labor and could hamper coordination among Federal agencies. Partial or limited delegations can allow States to undertake portions of cleanup activities or studies, and then require EPA to perform the portions that the State declined to perform, either on a site by site or state by state basis. In some cases, this could lead to implementation delays and higher costs associated with attempting to implement a State plan at the Federal level using different personnel or contractors. It could also create inconsistent approaches, confusion, and could greatly compromise cost recovery if the work is Fund-lead.
Even the delegation process itself is problematic in S. 8. The bill provides for no public notice or comment on a proposed approval or disapproval of a State application to take over the program. RCRA, the program most closely related to the Superfund program requires such procedures, however, S. 8 does not. In the case of S. 8, where the decision as to the lead regulatory agency is made on a site-specific basis, this is very troubling. In many cases, the public has very strong views about which agency is best suited to oversee the cleanup. In addition, the default approvals of State programs could have unintended consequences, and could even lead to a lack of protection of public health and the environment in cases where a State is automatically approved to take over a site because of the default provisions, but does not currently have the resources available to devote to the particular site.
Limiting Application of State Law
One of the most troubling aspects of S. 8's treatment of the role of States in the Superfund program is the effective preemption of state law involving remedy selection. Under S. 8, this occurs when a delegated state attempts to select a remedy more costly than what EPA would have selected, in which case the State must pay the difference in cost and cannot recover the costs through State or Federal cost recovery, even if it would otherwise be covered by their own State cleanup requirements. Aside from the question of costs or resources necessary to duplicate the State remedy process for comparison purposes every time a remedy is challenged, this represents a preemption of the State's ability to select remedies under its own authority, as well as a preemption of the State's liability scheme.
Other State Issues
Besides the issues listed above, there are other potential problems with the provisions of S. 8. For example, the new State cost share requirements could add $90 to $100 million to the cost borne by the Trust Fund, based on 1994 estimates, and under S. 8, this cost may be increased by State petitions for further reductions. Additionally, early authority to delist sites from the NPL could negatively impact sites where cleanup has not been completed, or at RCRA facilities or other sites with ongoing activities which might give rise to new problems or releases. S. 8 does not recognize Indian Tribes at all.
S. 8 FAILS TO ADEQUATELY PROMOTE AND ENHANCE ECONOMIC REDEVELOPMENT
One of the most important aspects of any Superfund legislation is its ability to promote and enhance economic redevelopment at Superfund sites. Because of this EPA is very encouraged to see substantial Brownfields provisions, as well as voluntary cleanup program provisions, within S. 8. However, in reviewing the provisions, several concerns were apparent.
Brownfields Grants are Limited
One of the major concerns with S. 8's Brownfields characterization grants provision is the exclusion of States from the list of eligible recipients for the program. EPA's experience with the Brownfields Pilot Program has taught us that in the case of many smaller communities, it may make more sense and be more efficient to provide the grants directly to States. Additionally, the limitation on funding per year for these grants may restrict and inhibit the grant recipient from efficiently managing and benefiting from the grant itself. Finally, in the definition of Brownfields, S. 8 improperly excludes sites where removals have occurred, or are planned to occur, and sites deleted from the NPL with "No Action" RODs. These sites may be appropriate candidates for redevelopment. In addition, EPA has first-hand experience with prospective purchaser redevelopment of these properties.
Voluntary Cleanup Program Concerns
The Administration is opposed to provisions in S. 8 regarding voluntary cleanup that would eliminate the authority of EPA and other Federal agencies to respond to releases of hazardous substances whenever a State remedial action plan has been prepared, whether under a voluntary response program, or any other State program. Under S. 8, the mere existence of such a cleanup plan eliminates any Federal authority to respond to a release or threatened release of hazardous substances - even where there may be an imminent and substantial endangerment to human health and the environment. This compromise of public protection is alarming. The provisions of S. 8 could leave us powerless to respond to immediate threats from the worst toxic sites (Voluntary Response Programs are given authority to clean up NPL sites) even where the State's VRP program lacks the resources and expertise to "qualify" under the provisions of S. 8.
In addition, the level of community involvement provided by S. 8 is questionable. The bill limits the community to an "adequate opportunity" for public involvement and does not guarantee participation in all levels of the cleanup process or determinations regarding end uses of the property. Finally, the preclusion of all private and citizen suits belies the apparent commitment in S. 8 to strengthen community participation.
The problems discussed above are not a complete list of problems in S. 8. The bill significantly restricts restoration of natural resources injured as a result of hazardous waste contamination. Further, the bill prematurely limits Federal involvement in the effort to cleanup hazardous waste sites by mandating that only a limited number of sites may be added to the National Priorities List (NPL) over the next several years. EPA estimates that hundreds of sites currently meet the eligibility criteria for NPL. Without adequate Federal involvement, these sites would become the responsibility of State and local governments that may not have the resources to address them.
The Administration views these and other problems I do not have time or space to mention here as sufficiently numerous and serious to suggest that 5.8 is probably not an effective vehicle by which to forge consensus regarding Superfund legislative reform in this Congress.
The Clinton Administration believes that responsible, consensus based Superfund legislative reform is necessary to remedy some inherent problems in the existing statute. However, any such reform must be based upon an understanding of where the program is today. I have tried in my testimony today to start the process of forging a common understanding of the current Superfund program by describing our accomplishments under the Administrative Reforms. We need to continue this dialogue through a consensus building process in which the full array of stakeholders participate so that we can clear away phantom issues that cloud our ability to share a common vision of what the Superfund program of the future should look like. We are prepared to start over, and work together to develop Superfund reform legislation. The Administration is fully committed to participating in such a process and to seeing that responsible, consensus based Superfund legislative reform is enacted in the 105th Congress.
Mr. Chairman, thank you for this opportunity to address the Committee. Now will be happy to answer any questions you or the other Members may have.