PREPARED STATEMENT OF
MICHAEL W. STEINBERG
ON BEHALF OF THE
SUPERFUND SETTLEMENTS PROJECT
Before the Subcommittee on Superfund,
Toxics, Risk, and Waste Management of the
Senate Committee on Environment & Public Works
April 10, 2002
Status of Superfund Program. 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.
Pace of Cleanups. Ironically, Superfund’s accomplishments have given rise to a concern that cleanups may be slowing down. But cleanups are not slowing down. Instead, Superfund is working on the remaining sites, which include some of the largest, most complex, and most challenging NPL sites. For example, construction has been completed at roughly 75% of the non-federal NPL sites, but at just 20% of the federal facility NPL sites. Selecting, designing, and constructing remedies at these federal facility sites takes longer for a variety of reasons, including the technical challenges they pose.
The NPL Should Become the Tool of Last Resort. Looking ahead, we confront many thousands of sites perceived to be impacted by contamination, most of which either are being addressed by increasingly robust State programs or else pose no immediate risk to human health or the environment. There is no reason to “make a federal case” out of these sites. Instead, NPL listing should be the tool of last resort, reserved for sites that:
(1) are severely contaminated;
(2) pose severe risks; and
(3) have no near-term prospect of cleanup by responsible private parties.
Most Large Mining Sites and Sediment Sites Do Not Belong on the NPL. These two types of sites differ greatly from the type of site that the Superfund process was designed to handle. To date, there has been no Congressional or societal debate about whether the Superfund program – or indeed any other federal program -- should attempt to handle these extremely large and complex sites, which may prove to be so costly that the risks and benefits involved would not warrant such expenditures.
Removal Actions Should Be Limited to “Emergencies.” EPA spends about $250 MM/yr on removal actions, 75% of which do not involve “emergencies” of any kind. The removal program should be refocused to its original purpose.
The Superfund Settlements Project appreciates the opportunity to share with the Subcommittee some perspectives on the status and future of the modern Superfund program. The Superfund Settlements Project is a not-for-profit association of nine major companies from various sectors of American industry. 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.
The members of the Superfund Settlements 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 20 years. Representatives of the Superfund Settlements Project have testified before Congress on numerous occasions regarding various aspects of the Superfund program. The Superfund Settlements 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 first announced in 1995.
Collectively, these nine companies have paid out well over two billion dollars in site cleanup and site study costs since 1980. They have also paid out hundreds of millions of dollars more in dedicated federal Superfund taxes paid during the first 15 years of the program’s life. These payments far exceed any fair or equitable measure of their responsibility for the contamination at these sites.
The Superfund Settlements 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). The gaps in environmental regulatory programs that led to the creation of many Superfund sites have been filled. 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.
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. Ironically, this progress has given rise to a concern that cleanups may be slowing down. But cleanups are not slowing down. Instead, Superfund is working on the remaining sites, which include some of the largest, most complex, and most challenging NPL sites.
For example, construction has been completed at roughly 75% of the non-federal NPL sites, but at just 20% of the federal facility NPL sites. Selecting, designing, and constructing remedies at these sites takes longer due to the technical challenges they pose.
In the body of 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 successes, particularly since the announcement of the administrative reforms in October of 1995.
Second, we address more fully the concern about the current pace of cleanups. In this discussion, we explain why the number of “construction complete” sites is tapering off and why this does not represent a slowdown in the pace of the cleanup program.
Third, we focus on the future scope of the NPL, proposing that it be “the tool of last resort,” to be used only for sites that meet the relevant criteria.
Fourth, we briefly discuss the reasons why large mining sites and contaminated sediment sites, in particular, typically do not belong on the NPL.
Fifth, we show how, despite the passage of recent brownfields legislation, Superfund remains a major impediment to the goal of restoring contaminated sites to productive use.
Sixth, and last, we propose refocusing the removal action program so that it will serve its original intended purpose – 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. 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 National Priorities List, and construction is underway at most of other NPL sites, which are among the most severely contaminated sites.
Superfund, a topic of intense public concern -- once 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 the actions which should be taken now are being taken.
In the process and in recent years, EPA has also worked to improve relationships with 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% 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.
II. Superfund is Making Rapid Progress on Cleaning Up the NPL.
Specifically, in the years since 1995, Superfund has achieved levels of operational progress and public acceptance it had never before experienced. Much of the credit for that improvement is attributable to the set of administrative reforms announced by EPA in October 1995, which reduced the elements of confrontation between the government and PRPs and achieved a number of specific improvements in program management. In addition, building on past experience and accomplishment, EPA made solid progress each year in moving sites on the NPL into remedial construction and bringing sites to construction completion.
Today, Superfund can point to a remarkable 810 sites where construction of the remedy is already complete, and another 400 or so where construction is underway. The vast majority of these cleanups were conducted and paid for by private parties. What does this means in practical terms? It means two things.
First, it means that the great majority of NPL sites either already have remedies in place, or are well on their way toward that status.
Second, and equally important, it means that if we measure progress solely in terms of the number of “construction complete” sites achieved in each fiscal year, then we will see an apparent tapering off in the rate of progress from this point forward. There are fewer sites available each year for “construction completion,” of course, and, more importantly, those that remain are among the largest, most complex, and most challenging sites of all.
This apparent tapering off does not represent a real-world slow-down in the pace of cleanup. Instead, it reflects the fact that Superfund, having addressed most of its original workload, must now focus on those sites that remain. The nature of these sites makes it inherently more difficult – and thus more time-consuming -- to select, design, and construct remedies.
A good example of this phenomenon is the roughly 140 federal facility NPL sites at which construction has not yet been completed. By far the largest and most threatening sites in the country are those created by the federal government, mainly the U.S. Department of Energy and the U.S. Department of Defense. Thus, federal facilities comprise 13% of the total sites listed on the NPL, but a much lower percentage of the “construction complete” sites. Today, construction is complete at nearly 75% of the non-federal NPL sites, but only 20% of the federal facility NPL sites.
Many of these federal facility NPL sites are particularly challenging to remediate for one or more of the following reasons:
(1) they are very large, sometimes extremely large;
(2) they contain numerous distinct operable units;
(3) they have ongoing public missions that cannot easily be disrupted by site study or cleanup activities; and
(4) they are remediated with funds from the DOD or DOE budgets.
These unique features of federal facility NPL sites help explain why only 20% of them have reached the “construction complete” stage to date. It also explains why, going forward, these sites will not reach that stage as quickly as many of the non-federal NPL sites addressed in earlier years.
In sum, Superfund has made remarkable progress in cleaning up the NPL. The sites that remain will likely take somewhat longer to complete than the sites already completed. This should be viewed as an indicator of progress made, not as a sign that the pace of cleanup, or the commitment to cleanup, is waning.
III. The NPL Should Be “the Tool of Last Resort” for Addressing Contaminated Sites.
Based on 20 years’ worth of experience with Superfund, it is also timely to reconsider the purpose and scope of the NPL itself. Indeed, this is one of the specific recommendations made by Resources for the Future in its July 2001 report to Congress. In response to that recommendation, EPA has already taken steps to convene a broad-based dialogue on this subject, with a new NACEPT subcommittee likely to begin meeting in the very near future.
In thinking about the purpose and scope of the NPL, it is helpful to bear in mind the lessons learned during the past 20 years in three main areas:
(1) the universe of contaminated sites;
(2) the alternatives available for addressing those sites; and
(3) the strengths and weaknesses of the Superfund program.
We address each of these points below, before presenting our specific proposal on the future role of the NPL.
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 having only a few hundred of sites, each of which was initially believed to pose severe threats to public health, it now is clear that we have a great many contaminated sites, most of which pose relatively small 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 the situation that existed when Superfund was enacted in 1980. Virtually all states have developed strong regulatory programs to control such sites. Most states also 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 now governs operating facilities, and another program (UST) covers underground storage tanks.
Third, Superfund’s strengths and weaknesses as a cleanup program can now be seen far more clearly with the benefit of 20 years’ worth of experience. As to its strengths, Superfund has focused attention on the need to remediate sites contaminated as a result of the inadequacies of pre-1980 disposal requirements. It has galvanized cleanup efforts, and it has achieved cleanups at most of the nearly 1,500 sites listed on the NPL. Superfund has also performed thousands of successful removal actions, most of them at non-NPL sites.
As to its weaknesses, Superfund has attached a lasting stigma to those sites and to some of 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 – over $30 billion in EPA appropriations alone since 1980, and at least $30 billion 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 of the sites addressed under Superfund never presented major risks to human health or the environment. Instead, sites were listed or targeted based on fairly crude assessments of their potential threats. Once a site is listed or targeted under Superfund, however, the focus shifts from potential risk to “cleanup.” Instead of focusing on risk reduction, where the program has actually achieved dramatic results, Superfund has tended to focus on “cleanup,” where progress is much slower and closure is maddeningly elusive. Ironically, this focus on “cleanup” often delays or limits the reduction of risk that should be Superfund’s principal objective.
In light of this experience, it is clear that the Superfund NPL must be regarded as just one tool among many to address the full range of contaminated sites. In fact, the NPL should be the tool of last resort -- a tool that because of its unique nature should only be used in those rare situations that require such a high-cost, inefficient mechanism. EPA itself adopted this term – “the tool of last resort” -- as its unofficial policy some years ago, but EPA has failed to change its actual decisionmaking in any concrete way to reflect this policy.
The special circumstances that might warrant use of the Superfund NPL as “the tool of last resort” might include sites that:
(1) are severely contaminated;
(2) pose immediate or severe risks; and
(3) have no near-term prospect of cleanup by responsible private parties.
Some so-called “mega sites,” such as large mining sites and sediment sites, might meet these criteria, but not simply because of their size. Many, perhaps most, “mega sites” simply do not belong on the NPL. In fact, their very complexity and potential huge cost make them presumptively unsuited for NPL listing, as we discuss below.
Apart from those sites that meet the above criteria for NPL listing, nearly all other sites should be managed under whatever other programs are most appropriate for them. This would include the RCRA corrective action program as well as the full range of state cleanup programs. If those other programs are viewed as deficient in some respects, then they should be improved rather than shifting sites to Superfund and thereby removing the incentive to remedy the shortcomings of those programs.
It is fully expected that private industry 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 these sites.
The implementation of this “tool of last resort” approach would require only modest changes to current EPA policy and practice. EPA should continue to treat the Superfund NPL the tool of last resort. To that end, EPA should identify in each new proposed NPL listing which other cleanup programs or approaches it has considered, why it believes such other programs or approaches are not suitable, and what it hopes to achieve through listing on the NPL. The Office of Emergency and Remedial Response at EPA Headquarters should carefully review these findings before it concurs with a proposed NPL listing. These issues should also be explored during the public comment period on proposed new NPL listings.
Finally, it would be consistent with the above to implement this approach with regard to NPL delistings or deletions, not just NPL listings. This raises some additional complications, and careful thought would be needed as to practical aspects of changing the current criteria for NPL deletion. 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.
IV. Most Large Mining Sites and Most Sediment Sites Do Not Belong on the NPL.
A special case of the NPL listing issue discussed above involves the large mining sites and sediment sites that make up many of what are now called “mega sites” due to the extraordinarily high cost of cleaning them up under Superfund. Like any other sites, they should not be listed on the NPL unless they meet the criteria described above. In addition, however, these two types of sites present some unique features that warrant a presumption against adding them to the NPL. We summarize below some of those distinctive features.
First, these sites are very different from the type of site that Superfund was intended to address. Unlike abandoned disposal sites and drum burial sites, there has never been a public debate about whether large mining sites or sediment sites belong in the Superfund program. Nor has Congress ever indicated its view as to whether the federal government should assume responsibility for these sites or whether they would be properly addressed through the Superfund approach.
Second, in the case of large mining sites, we are looking at the legacy of a domestic industry that has been economically devastated. Many large mining sites will therefore be orphan sites. Their cleanup costs will be staggeringly high, and those costs will be paid by the Trust Fund if these sites are added to the NPL. At a minimum, it would be fiscally prudent to explore alternative options for addressing these sites before seizing on the Superfund program as a vehicle for obtaining cleanups. It would also be appropriate to consider ways in which the industry responsible for creating these sites can absorb as large a share of the costs as possible.
Third, in the case of sediment sites, the question of how to deal with contaminated sediments in rivers, harbors, and estuaries remains a daunting challenge. EPA is beginning to recognize that dredging is not the solution for all instances of contaminated sediments. Unfortunately, dredging remedies are being selected at certain locations but without any clear policy rationale as to their selection.
The implications of starting down this path are staggering. Virtually every industrialized river system in this country could trigger remediation if overly stringent criteria were to be applied. However, given the limitations of existing dredging technology, these remedial efforts may cause more damage than allowing natural processes to address the contamination.
Society presently faces the prospect of enormous disparities in treatment between sediment sites that are subjected to dredging action and those that are not. Ironically, municipalities are among the larger sources at many sediment sites. Along with much of private industry, these cities and towns will face the prospect of sharing in the extreme costs of dredging remedies. These potentially responsible parties will have little choice but to seek judicial review of these ad hoc remedies, and the courts should be able to hear such challenges (on an expedited basis, so that cleanup is not delayed).
In sum, most large mining sites and most sediment sites presumptively should not be listed on the NPL.
In recent years, it has been increasingly recognized that a major objective of programs addressing contaminated sites must be to achieve the return of such property to productive use in society. Particularly in areas of historical industrial development where major sections of urban and
metropolitan areas were long devoted to industrial operations, it is unacceptable to leave those properties sealed off and consigned to
"warehouse" status simply because the costs of remediation of such areas would exceed their market value after remediation. The prevalence of such areas, commonly referred to as "brownfields," has driven policy debate to confront difficult realities of the tension between goals of restoration to original background purity and goals of returning land to productive use after effective controls have been achieved to prevent risks to health.
During the past five years, increasing attention has been placed on returning contaminated sites to productive use. Often that has involved
redevelopment for industrial or commercial purposes, while other sites have been converted to recreational use or wildlife preservation. Such
constructive accomplishment may easily be precluded by unrealistic requirements as to acceptable levels of concentration that must be achieved before reuse will be permitted. That risk would be exacerbated if these sites were addressed under Superfund. The unwillingness of EPA and the Department of Justice to support state decisions on brownfields by withdrawing the threat of future Superfund action is a serious deterrent to many projects.
An intensive bipartisan effort to address these problems resulted in the Brownfields Revitalization and Environmental Restoration Act of 2001, Pub. L. No. 107-118, which is an important first step. But Superfund – particularly the fear of EPA second-guessing state cleanup decisions – remains an enormous obstacle to redevelopment at many brownfields sites around the country. EPA and the Department of Justice should seriously reassess their policies on waiving Superfund claims at sites cleaned up under state programs. Incentives also must be provided to owners of contaminated property, analogous to those currently authorized for purchasers of contaminated property, in order for the full potential brownfields programs to be achieved.
VI. The Removal Action Program Should Be Refocused In Order to Address its Original Intended Purpose.
The Superfund removal action program poses somewhat different issues. The true emergencies it was originally meant to address now account for only one-fourth of all removals. The other three-fourths consist of so-called “time-critical” actions, where EPA believes work should be commenced within a period of six months, and even “non-time-critical” actions. For example, of the 2,440 removal actions commenced during the period from FY 1992 through FY 1999, a total of 1,892 (77.5%) were either “time-critical” or “non-time-critical” actions.
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 removal actions. Instead, Superfund removal actions should be limited to those contaminated sites, orphan or otherwise, that need immediate action to avert an actual health or environmental emergency.
The idea here is not to bog down in endless debate about 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, simply do not involve “emergencies” in any sense of the term. Accordingly, the removal program should be narrowed in order to refocus on its original intended purpose. EPA can accomplish this change as a matter of policy, without the need for any legislative action or any protracted rulemaking.
 The current members of the Superfund Settlements Project are Ciba Specialty Chemicals Corporation, E.I. duPont de Nemours & Co., Inc., [CHECK SPELLING!!] General Electric Company, General Motors Corporation, Honeywell International Inc., IBM Corporation, Solutia Inc., United Technologies Corporation, and Waste Management, Inc.
 In addition, members of the Superfund Settlements Project are also active members of other organizations analyzing the Superfund program, including the Superfund Action Alliance, the American Chemistry Council, the Business Roundtable, and the National Association of Manufacturers.
 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 policy debate tends to focus on the sites associated with private industry, especially because Superfund dollars are not used to clean up the federally owned DOD or DOE sites. But in evaluating both problems and successes, we should not forget the huge involvement by government on both sides of this program.
 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).
 The issue is further complicated by the fact that sediment sites, unlike most Superfund sites, typically involve both (1) continuing movement of contamination into the area being remediated and (2) continuing expectation of public use and/or access to the area for recreational or commercial purposes.
 Probst et al., Superfund’s Future – What Will It Cost? at 25, Table 2-4 (2001).