Statement of Richard Gimello
Assistant Commissioner for Site Remediation
New Jersey Department of Environmental Protection
before the
Committee on Environment and Public Works
Subcommittee on Superfund, Waste Control and Risk Assessment
March 5, 1997

Introduction

Good morning Mr. Chairman. I am Richard Gimello and I am Assistant Commissioner for Site Remediation for the New Jersey Department of Environmental Protection. This testimony is presented on behalf of the National Governors' Association (NGA). NGA has a strong interest in Superfund reform and believes that a variety of administrative as well as legislative and regulatory changes are needed to improve the Superfund program's ability to clean up the nation's worst hazardous waste sites quickly and efficiently. We realize the importance of passing legislation this year, and we want to ensure that the collective interests of the states are considered carefully in the development of a final bill. We recognize that Superfund reform is particularly critical this year because the taxing authority has lapsed. Funding is essential to the continuation of site cleanups, the ultimate objective of the Superfund program.

The Governors appreciate the opportunity to review and comment on S. 8. I would like to begin by stating that NGA is very appreciative of the many improvements made in this bill over last year's bill, S. 1285. The Governors acknowledge the vast compromises that this bill reflects and commend the committee for introducing legislation that addresses many state concerns with the Superfund program. We would like to continue working cooperatively with you to develop a final bill that enjoys bipartisan support. We truly believe that this type of support requires the types of moderate compromises that you've made in S. 8. Today, I would like to address NGA's overall assessment of the bill and suggest a few areas where improvements could be made.

Brownfields Revitalization and Voluntary Cleanup Programs

The Governors believe that brownfields revitalization is critical to the successful redevelopment of many contaminated former industrial properties, and we commend the committee for including brownfields language in the bill.

The Governors would like to emphasize the importance of state voluntary cleanup programs in contributing to the nation's hazardous waste cleanup goals. Many states have developed highly successful voluntary cleanup programs that have enabled sites to be remediated more quickly and with minimal governmental involvement. It is important that any legislation supports and encourages these successful programs by providing clear incentives and by ensuring that any minimum program criteria set by the Environmental Protection Agency (EPA) are extremely flexible.

It is the view of NGA that voluntary cleanup programs and brownfields redevelopment are currently hindered by the pervasive fear of federal CERCLA liability. We strongly support the provisions in S. 8 that encourage potentially responsible parties and prospective purchasers to voluntarily clean up sites and reuse and redevelop contaminated property, respectively. S. 8 achieves this goal by precluding subsequent federal enforcement at sites where cleanup has occurred under state programs and by providing needed liability protections for prospective purchasers and owners of property contiguous to contaminated sites. However, in the event EPA discovers an imminent and substantial threat to human health and the environment at a site, it should be able to continue using its emergency removal authority. Any assignment of liability, however, must be consistent with liability assigned under state cleanup laws.

State Role

The impacts of hazardous waste sites are felt primarily at the state and local levels. The Governors are very supportive of the efforts that Senators John H. Chafee and Robert C. Smith have made to strengthen the role of states in this program. We appreciate the inclusion of options for both noncomprehensive and comprehensive delegation in the bill and feel that this allows for maximum flexibility to meet state needs and objectives. We especially support allowing states to operate their programs in lieu of the federal program. States need to be able to apply state applicable standards at any site without any cost differential.

We cannot support allowing EPA to withdraw delegation on a site-by-site basis. Withdrawal of delegation should be consistent with the approval or rejection of a state's application for delegation. In addition, EPA should periodically review state performance instead of involving itself in site-by-site oversight.

The Governors strongly support a 10 percent state cost share for both remedial actions and operations and maintenance and appreciate the inclusion of this provision in S. 8. However, we do not support any change that would require a state cost share for removal actions. States are not currently required to cost-sham removals, and we would like to ensure that this remains the case.

In addition, the Governors would like to express concern about the provision for states to petition the Office of Management and Budget (OMB) as a mechanism to deal with any cost shifts resulting from changes in liability. States must have assurance that adequate funding is available and that cost shifts will not be an issue.

Selection of Remedial Actions

The Governors believe that changes in remedy selection should result in more cost- effective cleanups; a simpler, streamlined process for selecting remedies; and a more results-oriented approach.

As you know, allowing state applicable standards to apply at both National Priorities List (NPL) and state sites is an area of great importance to the Governors. We greatly appreciate and strongly support measures to allow state applicable standards and promulgated relevant and appropriate requirements (RARs) to apply to all site cleanups.

The Governors agree with the importance of considering different types of land uses when determining cleanup standards and appreciate the inclusion of provisions in S. 8 that provide the opportunity for state and local control in making determinations of foreseeable land uses. We would like to ensure that, when appropriate, feasible, and cost-effective, the cleanup standards chosen allow for unrestricted use of the site. In addition, we would like to ensure that land-use decisions are not second-guessed by EPA.

The Governors believe groundwater is a critical resource that must be protected. The use of state applicable standards and the opportunity for state and local authorities to determine which groundwater is actually suitable for drinking are essential during the remedy selection process. We appreciate the addition of language in S. 8 offering greater protection for groundwater and surface water that is or could be used as a drinking water source and would like to recognize this provision of the bill as an area of significant improvement over last year's bill.

The Governors recognize that there are some records of decision (RODs) that should be reopened because of cost considerations or technical impracticability. However, we believe the Governor should have the final decision on whether to approve a petition to reopen a ROD in a state. As we understand the bill, a Governor's decision to reject a petition can be denied by EPA's remedy review board. This is a provision we cannot support.

Finally, as we understand Section 134(c)(1), EPA could release a responsible party from any and all future liability, including state and local laws, if a site is cleaned up and deemed available for unrestricted use. This represents a clear preemption of state law that we cannot support.

Liability

The liability scheme employed in any hazardous waste cleanup program is critical to the success of that program. The current CERCLA liability scheme serves some purposes well. It has proved effective at encouraging better waste management, and it has provided resources for site cleanups. However, the current system has a history of leading to expensive litigation and transaction costs. Therefore, the Governors are not averse to changes in liability, though we are concerned with the resulting effects on the states.

In general, we support the elimination of de minimis and de micromis parties and believe the liability of municipalities needs to be addressed. However, we question broader releases of liability for other categories of responsible parties. In any case, we would like to see convincing analysis that any changes in the liability scheme are adequately funded so that sites can continue to be cleaned up and so that there will be no cost shifts to the states.

Further, we support the concept of an allocation process so that costs are assigned appropriately to responsible parties, but we need assurance that funding will be available for this process, including support for state allocation programs.

Finally, as I mentioned earlier, we fully support a release of federal liability at non-NPL sites where a release of liability has been granted under state cleanup laws protective of human health and the environment. We greatly appreciate the addition of language in S. 8 that addresses this issue.

Federal Facilities

The Governors support legislation that ensures a strong state role in the oversight of federal facility cleanups. The double standard of separate rules applying to private citizens and the federal government has a detrimental effect on public confidence in government at all levels. Therefore, the Governors believe that federal facilities should be held to the same process and same standard of compliance as private parties. We would like to make sure that this is the intent of language in the bill that we have interpreted as allowing state applicable standards to be applied at federal facility sites in the same manner that they apply at nonfederal facility sites.

In addition, we believe that states should be able to obtain comprehensive delegation for federal facilities and that the self-certification process should be the same as for private sites. We believe this is not the case in S. 8 as written. Our interpretation is that federal facilities may be delegated to states, but that they must use the federal remedy selection process. We do not understand the justification behind this language.

In addition, in virtually every other environmental statute, Congress has waived sovereign immunity and allowed qualified states to enforce state environmental laws at federal facilities. A clearer, more comprehensive sovereign immunity waiver should be proposed that includes formerly used defense sites. Several states have proposed language for this waiver.

Natural Resource Damages

The current natural resource damage provisions of CERCLA allow federal, state, and tribal natural resource trustees to require the restoration of natural resources injured, lost, or destroyed as a result of a release of a hazardous substance into the environment. The Governors feel this is an important program that must be maintained.

Although this title is greatly improved from last year's bill, there are still a few issues of concern to the Governors. We urge you to strengthen the program by amending the statute of limitations to run three years from the completion of a damage assessment; removing the prohibition on funding natural resource damage assessments from the trust fund; and not eliminating the ability to receive compensation for nonuse damages.

Miscellaneous

The Governors would like to respond to the provision in this title that limits new listings on the NPL to a specific number each year. Although this approach differs slightly from last year's provision to cap the NPL, we still feel that it greatly jeopardizes the intent of the Superfund program - namely, to clean up contaminated sites and protect human health and the environment. Further, by requiring the Governor's concurrence on any new listings, a sufficient and appropriate limitation is placed on new listings. We do not feel that further limitations are necessary. Because of differences in capacities among states, the complexities and costs of some cleanups, the availability of responsible parties, enforcement considerations, and other factors, the Governors are concerned about severe limitations on new listings. We need assurance that there will be a continuing federal commitment to clean up sites under such circumstances.

Conclusion

The National Governors' Association would like to thank you for your hard work on this important program and for providing me with the opportunity to communicate the views of the Governors on Superfund reform. Again, the Governors are very supportive of the direction you have taken with this legislation, and we look forward to working with you to develop a bill that enjoys broad bipartisan support.