[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]
FEDERAL AND STATE PARTNERSHIP FOR
ENVIRONMENTAL PROTECTION ACT OF 2013; REDUCING EXCESSIVE DEADLINE
OBLIGATIONS ACT OF 2013; AND FEDERAL FACILITY
ACCOUNTABILITY ACT OF 2013
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON ENVIRONMENT AND THE ECONOMY
OF THE
COMMITTEE ON ENERGY AND COMMERCE
HOUSE OF REPRESENTATIVES
ONE HUNDRED THIRTEENTH CONGRESS
FIRST SESSION
__________
MAY 17 & 22, 2013
__________
Serial No. 113-43
Printed for the use of the Committee on Energy and Commerce
energycommerce.house.gov
----------
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COMMITTEE ON ENERGY AND COMMERCE
FRED UPTON, Michigan
Chairman
RALPH M. HALL, Texas HENRY A. WAXMAN, California
JOE BARTON, Texas Ranking Member
Chairman Emeritus JOHN D. DINGELL, Michigan
ED WHITFIELD, Kentucky Chairman Emeritus
JOHN SHIMKUS, Illinois EDWARD J. MARKEY, Massachusetts
JOSEPH R. PITTS, Pennsylvania FRANK PALLONE, Jr., New Jersey
GREG WALDEN, Oregon BOBBY L. RUSH, Illinois
LEE TERRY, Nebraska ANNA G. ESHOO, California
MIKE ROGERS, Michigan ELIOT L. ENGEL, New York
TIM MURPHY, Pennsylvania GENE GREEN, Texas
MICHAEL C. BURGESS, Texas DIANA DeGETTE, Colorado
MARSHA BLACKBURN, Tennessee LOIS CAPPS, California
Vice Chairman MICHAEL F. DOYLE, Pennsylvania
PHIL GINGREY, Georgia JANICE D. SCHAKOWSKY, Illinois
STEVE SCALISE, Louisiana JIM MATHESON, Utah
ROBERT E. LATTA, Ohio G.K. BUTTERFIELD, North Carolina
CATHY McMORRIS RODGERS, Washington JOHN BARROW, Georgia
GREGG HARPER, Mississippi DORIS O. MATSUI, California
LEONARD LANCE, New Jersey DONNA M. CHRISTENSEN, Virgin
BILL CASSIDY, Louisiana Islands
BRETT GUTHRIE, Kentucky KATHY CASTOR, Florida
PETE OLSON, Texas JOHN P. SARBANES, Maryland
DAVID B. McKINLEY, West Virginia JERRY McNERNEY, California
CORY GARDNER, Colorado BRUCE L. BRALEY, Iowa
MIKE POMPEO, Kansas PETER WELCH, Vermont
ADAM KINZINGER, Illinois BEN RAY LUJAN, New Mexico
H. MORGAN GRIFFITH, Virginia PAUL TONKO, New York
GUS M. BILIRAKIS, Florida
BILL JOHNSON, Missouri
BILLY LONG, Missouri
RENEE L. ELLMERS, North Carolina
Subcommittee on Environment and the Economy
JOHN SHIMKUS, Illinois
Chairman
PHIL GINGREY, Georgia PAUL TONKO, New York
Vice Chairman Ranking Member
RALPH M. HALL, Texas FRANK PALLONE, Jr., New Jersey
ED WHITFIELD, Kentucky GENE GREEN, Texas
JOSEPH R. PITTS, Pennsylvania DIANA DeGETTE, Colorado
TIM MURPHY, Pennsylvania LOIS CAPPS, California
ROBERT E. LATTA, Ohio JERRY McNERNEY, California
GREGG HARPER, Mississippi JOHN D. DINGELL, Michigan
BILL CASSIDY, Louisiana JANICE D. SCHAKOWSKY, Illinois
DAVID B. McKINLEY, West Virginia JOHN BARROW, Georgia
GUS M. BILIRAKIS, Florida DORIS O. MATSUI, California
BILL JOHNSON, Missouri HENRY A. WAXMAN, California, ex
JOE BARTON, Texas officio
FRED UPTON, Michigan, ex officio
C O N T E N T S
----------
MAY 17, 2013
Page
Hon. John Shimkus, a Representative in Congress from the State of
Illinois, opening statement.................................... 1
Prepared statement........................................... 3
Hon. Paul Tonko, a Representative in Congress from the State of
New York, opening statement.................................... 4
Prepared statement........................................... 5
Hon. John D. Dingell, a Representative in Congress from the State
of Michigan, opening statement................................. 6
Prepared statement........................................... 7
Hon. Henry A. Waxman, a Representative in Congress from the State
of California, prepared statement.............................. 148
Witnesses
Carolyn Hanson, Deputy Executive Director, Environmental Council
of the States.................................................. 9
Prepared statement........................................... 11
Answers to submitted questions............................... 163
Jeffery Steers, Director, Central Office Division of Land
Protection and Revitalization, Virginia Department of
Environmental Quality, on Behalf of the Association of State
Territorial Solid Waste Management Officials................... 22
Prepared statement........................................... 25
Daniel S. Miller, Senior Assistant Attorney General, Natural
Resources and Environment Section, Colorado Department of Law.. 34
Prepared statement........................................... 36
Answers to submitted questions............................... 165
Abigail Dillen, Coal Program Director, Earthjustice.............. 54
Prepared statement........................................... 56
Answers to submitted questions............................... 167
Thomas Duch, City Manager, Garfield, NJ.......................... 105
Prepared statement........................................... 107
Submitted Material
Prepared statement of Hon. Mathy Stanislaus, Assistant
Administrator, Office of Solid Waste and Emergency Response,
U.S. Environmental Protection Agency........................... 111
Answers to submitted questions............................... 169
Discussion drafts................................................ 135
Letter of May 22, 2013, from public interest groups regarding
RCRA and CERCLA to the Subcommittee, submitted by Mr. Shimkus.. 149
Letter of May 22, 2013, from public interest groups regarding
CERCLA to the Subcommittee, submitted by Mr. Shimkus........... 157
Letter of May 21, 2013, from Headwaters Resources, Inc. and Boral
Material Technologies, Inc. regarding RCRA to the Subcommittee,
submitted by Mr. Shimkus....................................... 161
MAY 22, 2013
Witnesses
David M. Bearden, Specialist in Environmental Policy for the
Congressional Research Service................................. 198
Prepared statement........................................... 202
Answers to submitted questions............................... 251
David Trimble, Director of Natural Resources and Environment,
Government Accountability Office............................... 208
Prepared statement........................................... 210
Answers to submitted questions............................... 263
FEDERAL AND STATE PARTNERSHIP FOR ENVIRONMENTAL PROTECTION ACT OF 2013;
REDUCING EXCESSIVE DEADLINE OBLIGATIONS ACT OF 2013; AND FEDERAL
FACILITY ACCOUNTABILITY ACT OF 2013
----------
FRIDAY, MAY 17, 2013
House of Representatives,
Subcommittee on Environment and the Economy,
Committee on Energy and Commerce
Washington, DC.
The subcommittee met, pursuant to call, at 9:30 a.m., in
room 2123, Rayburn House Office Building, Hon. John Shimkus,
(chairman of the subcommittee) presiding.
Present: Representatives Shimkus, Whitfield, Pitts, Murphy,
Latta, Harper, Cassidy, McKinley, Bilirakis, Johnson, Barton,
Tonko, Green, McNerney, Dingell, Schakowsky, and Barrow.
Staff Present: Nick Abraham, Legislative Clerk; Charlotte
Baker, Press Secretary; Matt Bravo, Professional Staff Member;
Jerry Couri, Senior Environmental Policy Advisor; David
McCarthy, Chief Counsel, Environment/Economy; Brandon Mooney,
Professional Staff Member; Tina Richards, Counsel, Environment;
Chris Sarley, Policy Coordinator, Environment & Economy;
Jacqueline Cohen, Minority Senior Counsel; Greg Dotson,
Minority Staff Director, Energy and Environment; and Caitlin
Haberman, Minority Policy Analyst.
OPENING STATEMENT OF HON. JOHN SHIMKUS, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF ILLINOIS
Mr. Shimkus. We call the hearing to order, and the chair
recognizes himself for 5 minutes. Here in the Environment and
Economy Subcommittee, our goal is to modernize some of the
environmental laws that we oversee and make sure that the
states are playing a significant role in implementing them. To
do that, we began this Congress with a hearing on the role of
states in protecting the environment. state environmental
protection officials shared their experience and expertise with
us and helped us better understand the complex partnership
between states and the Federal Government as states implemented
Federal laws such as the Solid Waste Disposal Act and EPA
implements the Comprehensive Response Compensation and
Liability Act, CERCLA, or the Superfund law, and the relation
to state and environmental protection laws.
Today we consider three bills that are a logical outgrowth
of that discussion. One, the Federal Facility Accountability
Act, would bring CERCLA waiver of sovereign immunity into
conformity with Solid Waste Disposal Act, and for that matter
the Clean Air Act, by requiring that all Federal Superfund
sites comply with the same state laws and regulations as a
private entity. This is not a new concept. Legislation has been
introduced previously by my friends across the aisle to ensure
that Federal agencies comply with all federal and state
environmental laws.
The second bill, the Federal and state Partnership for
Environmental Protection Act, does exactly what the title
implies and would go a long way toward making the states
partners with EPA in cleaning up hazardous waste sites. CERCLA
is implemented by the EPA, but often states are in the best
position to understand the sites in their state. This bill
would allow states to play a larger role in the CERCLA process
in several ways. The bill would allow states to list a site it
believes needs to be on the National Priorities List every 5
years and would provide transparency to the states if they
suggest a site for listing. The bill would also allow states to
be consulted before EPA selects remedial action. The states are
on the front lines, understand at the ground level how to
prioritize in taking environmental action within their state,
and they often come up with innovative solutions that better
fit the local problem.
We heard examples in our earlier hearing on the role of the
states in protecting the environment. CERCLA is a key example
of a statute passed more than 30 years ago that we are in the
perfect position to now update, and to strengthen the federal-
state partnership and get these sites cleaned up. Besides, the
states are required to sink their money in these cleanup
projects, and while we understand there are budget constraints
at all levels of government, if states have a significant cost,
they should have more of a say in how the cleanup money is
spent.
Continuing the theme of updating our environmental statutes
passed in the 1970s and 1980s, the third bill, the Reducing
Excessive Deadline Obligation, or the REDO Act of 2013, would
give EPA flexibility by correcting a couple of arbitrary action
deadlines that were written into the Solid Waste Disposal Act
and CERCLA years ago. The mandate that EPA review and, if
necessary, revise all RCRA regulations every 3 years has proven
unnecessary and unworkable. The bill would allow the
Administrator to review and, if necessary, revise regulations
she thinks appropriate. It also reduces the requirement that
only seems to be good for generating lawsuits against the EPA.
In fact, they did some testimony, I would have people look at
the testimony provided by the Environmental Protection Agency,
and I quote that, ``the current statutory provisions requiring
review every 3 years can pose a significant resource burden on
EPA, given the complexity and volume of EPA's RCRA
regulations.'' So they are in agreement that this is overly
burdensome and costly.
Shimkus and the EPA on the same side. It is a beautiful
thing.
The bill also lists an action deadline in CERCLA requiring
EPA to identify prior to 1984 classes of facilities for which
to develop financial assurance regulations. More than 30 years
passed without action from EPA. As we approach the 30th
anniversary of the original deadline in CERCLA, a lawsuit and
court order finally prompted EPA action of a few years ago;
however, the states have long since acted, putting in place
strong financial assurance requirements of their own. That is
why the bill also provides that if EPA does get around to
establishing Federal financial assurance regulations, the state
requirements should not be preempted.
We regret that it was not possible for a friend of this
committee, Mr. Stanislaus, Assistant Administrator of the EPA,
to be with us today, but as I quoted, we have his written
statement and we will consult with him and his staff as these
bills move through the legislative process.
Throughout that process, we also welcome suggestions from
our witnesses today and other experts in the field, and that is
why we are having this legislative hearing.
I want to lastly thank our witnesses for being with us
today, and appreciate your willingness to travel to Washington
to share your opinions on the three bills before us.
With that, the chair now recognizes the gentleman from New
York, Mr. Tonko.
[The prepared statement of Mr. Shimkus follows:]
Prepared statement of Hon. John Shimkus
Here in the Environment and the Economy Subcommittee our
goal is to modernize some of these environmental laws that we
oversee and make sure the states are playing a significant role
in implementing them. To do that, we began this Congress with a
hearing on the role of the states in protecting the
environment. state environmental protection officials shared
their experience and expertise with us and helped us better
understand the complex partnership between the states and the
federal government as states implement federal laws, such as
the Solid Waste Disposal Act and EPA implements the
Comprehensive Response, Compensation, and Liability Act (CERCLA
or Superfund law), and the relation to state environmental
protection laws.
Today we consider three bills that are a logical outgrowth
of that discussion.
One, the Federal Facility Accountability Act, would bring
the CERCLA waiver of sovereign immunity into conformity with
the Solid Waste Disposal Act and for that matter, the Clean Air
Act, by requiring that all federal superfund sites comply with
the same state laws and regulations as a private entity. This
is not a new concept. Legislation has been introduced
previously by my friends across the aisle to ensure that
federal agencies comply with all federal and state
environmental laws.
The second bill, ``The Federal and state Partnership for
Environment Protection Act'' does exactly what the title
implies and would go a long way toward making the states
partners with EPA in cleaning up hazardous waste sites. CERCLA
is implemented by EPA, but often states are in the best
position to understand the sites in their state. This bill
would allow states to play a larger role in the CERCLA process
in several ways. The bill would allow states to list a site it
believes needs to be on the National Priorities List every five
years and would provide transparency to the states if they
suggest a site for listing.
The bill would also allow states to be consulted before EPA
selects a remedial action. The states are on the front lines
and understand at the ground level how to prioritize in taking
environmental action within their state and they often come up
with innovative solutions that better fit the local problem. We
heard examples in our earlier hearing on the ``Role of the
states in Protecting the Environment.'' CERCLA is a key example
of a statute passed more than 30 years ago that we are in the
perfect position to now update and strengthen the federal-state
partnership and get these sites cleaned up.
Besides, the states are required to sink their own money in
these cleanup projects and while we understand there are budget
constraints at all levels of government, if states have a
significant cost they should have more of a say in how the
cleanup money is spent.
Continuing the theme of updating environmental statutes
passed in the 70s and 80s, the third bill, ``the Reducing
Excessive Deadline Obligations (REDO) Act of 2013'' would give
EPA flexibility by correcting a couple of arbitrary action
deadlines that were written into the Solid Waste Disposal Act
and CERCLA years ago. The mandate that EPA review and, if
necessary, revise all RCRA regulations every three years has
proven unnecessary and unworkable. The bill would allow the
administrator to review and, if necessary, revise regulations
as she thinks appropriate. It also reduces a requirement that
only seems to be good for generating lawsuits against EPA.
The bill also lifts an action deadline in CERCLA requiring
EPA to identify, prior to 1984, classes of facilities for which
to develop financial assurance regulations. More than 30 years
passed without action from EPA. As we approach the 30th
Anniversary of the original deadline in CERCLA, a lawsuit and
court order finally prompted EPA action a few years ago.
However, the states have long since acted, putting in place
strong financial assurance requirements of their own. That is
why the bill also provides that if EPA does get around to
establishing federal financial assurance regulations, the
states requirements would not be preempted.
We regret that it was not possible for a friend of this
committee, the Honorable Mathy Stanislaus, Assistant
Administrator of EPA, to be with us today, but we welcome his
written statement and will consult with him and his staff as
these bills progress through the legislative process.
Throughout that process we also welcome suggestions of our
witnesses today and of other experts in the field.
I want to lastly thank our witnesses for being with us
today and appreciate their willingness to travel to Washington
to share your opinions on the three bills before us.
# # #
OPENING STATEMENT OF HON. PAUL TONKO, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF NEW YORK
Mr. Tonko. Thank you, Mr. Chairman. Good morning to our
witnesses.
And let me begin by saying how pleased I am that we were
able to come to an agreement and that we will have an
opportunity to receive testimony on the Superfund program from
additional witnesses before we mark up our bills. I appreciate
your willingness to accommodate the desire of the subcommittee
members to hear from witnesses about the current status of this
program.
The Comprehensive Environmental Response Compensation and
Liability Act, commonly known as Superfund, is an important
statute guiding the cleanup of contaminated sites throughout
our country. It is fair to say that this law had a rough start.
Over the years, it has been shaped by amendments, agency
guidance, regulations and extensive litigation. Much of the
dust has now settled. Cleanups are proceeding across the
country. Many communities are safer as a result of this law,
and contaminated, abandoned sites have been returned to
productive reuse.
I want to thank the witnesses for appearing before our
subcommittee this morning and for offering their views on the
three bills before the subcommittee.
Mr. Chair, you characterized the bill as reforms to
Superfund, and I am new to the committee but not new to the
contamination problems that Superfund was enacted to address.
``Simple'' is not an adjective I usually associate with
Superfund, and I hope we are not embarking on an effort that
will negate the progress we have made on site cleanups and the
reuse of brown fields.
One bill we will consider today, for instance, is couched
as legislation designed to repeal so-called, I quote, excessive
deadlines. Section 2 of this bill appears to be designed to
block a lawsuit from coal ash recyclers to bring some certainty
to their markets. Those recyclers have gone to court over EPA's
failure to meet a statutory deadline that they say has, and I
quote, constrained the recycling of coal ash with the attendant
result of wasted resources, adverse economic impacts, and
increased environmental impacts that would otherwise be avoided
through beneficial reuse, close quote.
Many of us support the beneficial reuse of coal ash, which
is what the coal ash recycling industry does. This industry has
gone to court to protect their rights and seek a legal remedy
for their plight. We should not throw their case out of court
by legislative fiat.
Other provisions we will consider today will delay cleanups
in favor of litigation, will decrease the funding available for
cleanup efforts, and will divert resources so that the most
dangerous contaminated sites are not cleaned up first.
There are many questions that surround these bills. They
may delay efforts to adopt financial responsibility
requirements for environmentally damaging mining and they could
preempt those requirements once adopted, but again I look
forward to hearing what everyone has to share with us today.
And with that, I yield back, Mr. Chair.
[The prepared statement of Mr. Tonko follows:]
Prepared statement of Hon. Paul Tonko
Good morning.
Mr. Chairman, I am pleased that we were able to come to an
agreement, and that we will have an opporiunity to receive
testimony on the Superfund program from additional witnesses
before we markup these bills. I appreciate your willingness to
accommodate the desire ofthe Subcommittee members to hear from
witnesses about the current status of this program.
The Comprehensive Environmental Response, Compensation, and
Liability Act--commonly known as Superfund--is an important
statute guiding the cleanup of contaminated sites throughout
the country.
It is fair to say, this law had a rough start. Over the
years, it has been shaped by amendments, Agency guidance,
regulations, and extensive litigation. Much of the dust has now
settled. Cleanups are proceeding across the country. Many
communities are safer as a result of this law. And
contaminated, abandoned sites have been returned to productive
use.
I want to thank the witnesses for appearing before our
Subcommittee this morning and for offering their views on these
three bills.
Mr. Chailman, you characterized the bills as simple reforms
to Superfund. I am new to the Committee, but not new to the
contamination problems that Superfund was enacted to address.
``Simple'' is not an adjective I usually associate with
Superfund. I hope we are not embarking on an effort that will
negate the progress we have made on site cleanups and reuse of
brown fields.
One bill we will consider today is couched as legislation
designed to repeal so-called ``excessive deadlines.'' Section 2
of this bill appears to be designed to block a lawsuit from
coal ash recyclers to bring some certainty to their markets.
Those recyclers have gone to court over EPA's failure to meet a
statutory deadline that they say has ``constrain[ed] the
recycling of [coal ash], with the attendant result of wasted
resources, adverse economic impacts, and increased
environmental impacts that would otherwise be avoided through
beneficial reuse.''
Many of us support the beneficial reuse of coal ash, which
is what the coal ash recycling industry does. This industry has
gone to court to protect their rights and seek a legal remedy
for their plight. We should not throw their case out of court
by legislative fiat.
Other provisions we will consider today will delay clean-
ups in favor of litigation, will decrease the funding available
for clean-up efforts, and will divert resources so that the
most dangerous contaminated sites are not cleaned up first.
I have many questions about these bills. They may delay
efforts to adopt financial responsibility requirements for
environmentally-damaging mining, and they could preempt those
requirements once adopted.
Mr. Chairman, the basic policy behind Superfund is that
polluters should pay to clean up their pollution. I think we
should be very careful about potentially creating new avenues
for litigation that can allow polluters to delay cleanups and
argue for weaker protections. They have a financial incentive
to do so, but that does not align with the public interest.
I appreciate the opportunity for the Subcommittee to
examine the Superfund Program. The citizens living in
communities with these sites are anxious to have them cleaned
up and returned to safe, productive use. The responsible
parties, whether public or private, want to accomplish those
clean-ups in a cost-effective manner. These are goals we can
all support, and the lens through which we should consider
these three bills.
Mr. Shimkus. The gentleman yields back his time. Is there
anyone on my side seeking time for an opening statement?
The chair now recognizes the Chairman Emeritus, Mr.
Dingell, for 5 minutes.
OPENING STATEMENT OF HON. JOHN D. DINGELL, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF MICHIGAN
Mr. Dingell. Mr. Chairman, thank you for your courtesy. I
am giving a statement on behalf of myself, but I am using Mr.
Waxman's time.
I have some familiarity with the subject matter before us
today since I have chaired both the committee and the
conference committee which lasted some 8 months when we
considered the Superfund Amendments and Reauthorization Act of
1986. For many of the members of this subcommittee on both
sides of the aisle that were not in the Congress in 1986, I
would like to recall some of the events of that legislative
effort resulting in the 1986 act and to describe the result of
more than 3 years of legislative hearings and 5 years of
oversight hearings.
The issue was enormously complex and bitterly
controversial. It was also a fully bipartisan effort on the
committee, and we worked very closely with the Reagan
administration, which I saw was present at all the conference
meetings. And the then chairman--rather, the then head of EPA
was of valuable assistance to the committee and the conference
committee in writing the final legislation. The Senate at that
time was under Republican control. President Reagan signed the
act on October 17, 1986, after overwhelming votes of 386 to 27
in the House and 88 to 8 in the Senate.
One of the interesting things about that was my difficulty
was to see to it that the legislation was considered in a
balanced and thoughtful way, but the pressures ofttimes were to
go too far.
I am unaware that this committee has, or any of the
subcommittees have conducted any oversight that has identified
problems necessitating the amendments before us today. I
believe every member of this committee can point out things
that need to be done with regard to the legislation. I have
some of my own.
The Superfund program, after a rocky start, has become a
very successful and an enormously important public health
program, cleaning up some devastatingly dangerous situations
all around the country. And I would note that some of the worst
difficulties that that agency confronts in administering this
legislation is that there is no money. We have been both stingy
in seeing to it that appropriated funds are available, but
worse than that, we have allowed the tax revenues, which funded
the original Superfund, to dry up so the money is not available
to see to it that the matter is properly handled.
And these are hideously technical and politically difficult
questions. And I would suggest that before heading headlong
into the resolution of problems that don't find any support in
a factual record at this time, that the committee should gather
the evidence from the states, from EPA, from local governments,
from industry, and I think industry's comments will be very
important, from the communities and from ordinary citizens so
that we can understand what, if any, problems need to be
addressed and how the interlocked and difficult questions,
political, technical, environmental and financial, work
together.
And I think that the tools necessary to ensure that Federal
sites are properly listed and expeditiously cleaned up are
available to us and can be perfected by a thoughtful and a
decent approach to the legislation before us. And we can
understand then perhaps why it has taken more than 25 years of
fighting on all of these matters to establish financial
responsibility requirements for industries that deal in
hazardous substances.
My district is an industrial district where we have large
numbers of old industrial sites, and these curse us all and
require enormous amounts of effort, cooperation and
understanding for us to solve the problems and clean them up,
but we are making progress, and we will continue to do so if we
don't screw these matters up by legislating in an unwise and
irresponsible fashion.
I hope that my colleagues will try to understand the
purpose of this hearing and the purpose of legislation and
legislative change. And these are more than just to provide
work for us or work for the staffs. And I think we have to
worry, because the committee, or the subcommittee, seems to be
doing well in creating a lot of staff work, but not a lot of
thoughtful effort or understanding of the problems so that we
can legislate well.
This is a massive health problem, a massive environmental
concern, it is a tremendous financial problem, and it is
something that does need our attention, but that attention must
be thoughtful, it must be considerate of the concerns of
everybody, but it must also address the question of facts and
what really has to be done to achieve a balanced and perfected
approach to this matter in which we will do the job better than
we did the first time.
I yield back the balance of my time.
[The prepared statement of Mr. Dingell follows:]
Prepared statement of Hon. John D. Dingell
Mr. Chairman, I have some familiarity with the subject
matter before the Subcommittee today since I chaired the eight
month long conference committee that resulted in the Superfund
Amendments and Reauthorization Act of 1986. With one exception,
the discussion draft amendments before the Subcommittee today
are seeking to amend that Act.
For the many members on the Subcommittee on both sides of
the aisle where were not in the Congress in 1986, I wish to
inform them that legislative effort resulting in the 1986 Act
was the result of more than three years of legislative hearings
and five years of oversight hearings. It was a fully bipartisan
effort on the Committee and we worked very closely with the
Reagan Administration which was present at all conference
meetings. The Senate, at the time, was under Republican
control. President Reagan signed the Act on October 17, 1986
after overwhelming votes of 386-27 in the House and 88-8 in the
Senate.
I am unaware that this Subcommittee has conducted any
oversight that has identified problems necessitating the
amendments before us today. The Superfund program, after a
rocky start, has become a very successful and important public
health program. At the non-federal Superfund National Priority
Sites, the program completed all necessary construction
activities at over 70 percent of the sites. At thousands of
other sites, emergency or shorter-term removal actions have
been completed.
Many of these amendments appear unnecessary and are without
a factual basis or predicate. Others, such as the amendment to
Section 113(h) of CERCLA, expand the opportunities for
litigation before protective cleanup measures are taken. Such
actions will delay cleanup for years while a federal judge
sorts through the technical merits of a selected cleanup
remedy. In 1986, the Conference Committee adopted a policy to
put cleanups before lawsuits so communities would have relief
while preserving the right to challenge agency action of the
cleanup did not meet legal requirements or relevant standards.
If states had the capacity or financial ability to clean up
these most seriously contaminated sites they would not be on
the National Priorities List. states always have the first
crack at cleaning up sites. To authorize lawsuits between the
states and the federal government before cleanup is a fine idea
if your goal is more litigation and lengthy cleanup delays--all
coming at the expense of citizens and communities living nearby
the site.
A number of the amendments seem to rest on the premise that
EPA and state agencies are not communicating with each other.
Where is the evidentiary record in support? These amendments
appear to be solutions in search of a problem. I call my
colleagues attention to Section 121(f) of the existing statute
which sets forth in detail requirements for ``substantial and
meaningful involvement by each state in initiation,
development, and selection of remedial actions.''
Then there is an amendment in an amendment to Section 108.
In this section, Congress wanted EPA to establish financial
responsibility requirements for various classes of facilities
so they would ``maintain evidence of financial responsibility
consistent with the degree and duration of risk associated with
the production, transportation, treatment, storage, or disposal
of hazardous substances.'' The agency has been extremely
dilatory in implementing this provision. However, instead of
calling EPA to task for failing to act, my republican
colleagues' only goal seems to be to eliminate the one
provision that was a mandatory duty forcing EPA to initiate
action.
Before charging headlong into solving problems that are not
backed up with a factual record, I recommend this Subcommittee
gather a body of evidence from EPA, states, local governments,
industry, and communities to better understand what, if any,
problems need to be addressed regarding the state-federal
relationship, the tools necessary to ensure federal sites are
properly listed and expeditiously cleaned up, and why it has
taken more than 25 years to establish financial responsibility
requirements for industries that deal in hazardous substances.
I fail to understand the purpose of this hearing or legislation
other than to provide work for its members and staff. On that
point, the Subcommittee has succeeded wonderfully.
Mr. Shimkus. The gentleman yields back his time. And I
would just quickly note that, you know, I am not a spring
chicken on this committee either, and my first piece of
legislation was a response to the Superfund. When we got small
business out of the liability regulations, the de minimis
parties, and that was a successful piece of legislation that we
were able to pick out what was wrong and how we could fix it
and the like. And I would just refer folks to the EPA's
testimony where it says, the current statutory provisions
requiring review every 3 years can pose a significant resource
burden on the EPA, given the complexity and volume of EPA's
RCRA regulations. So it is not just us; it is even the EPA
saying that this might be helpful.
So with that, I would like to recognize and welcome our
witnesses, and I will just go in order. I already talked to you
about votes being called soon. We will get through as many
witnesses as we can, so then we can come back and go back to
questions.
So first I would like to welcome Ms. Carol Hanson, Deputy
Executive Director at Environmental Councils of the states.
Your full testimony's in the record, and you are recognized for
5 minutes.
STATEMENTS OF CAROLYN HANSON, DEPUTY EXECUTIVE DIRECTOR,
ENVIRONMENTAL COUNCIL OF THE STATES; JEFFERY STEERS, DIRECTOR,
CENTRAL OFFICE DIVISION OF LAND PROTECTION AND REVITALIZATION,
VIRGINIA DEPARTMENT OF ENVIRONMENTAL QUALITY, ON BEHALF OF THE
ASSOCIATION OF STATE TERRITORIAL SOLID WASTE MANAGEMENT
OFFICIALS; DANIEL S. MILLER, SENIOR ASSISTANT ATTORNEY GENERAL,
NATURAL RESOURCES AND ENVIRONMENT SECTION, COLORADO DEPARTMENT
OF LAW; ABIGAIL DILLEN, COAL PROGRAM DIRECTOR, EARTHJUSTICE;
AND THOMAS DUCH, CITY MANAGER, GARFIELD, NJ
STATEMENT OF CAROLYN HANSON
Ms. Hanson. Thank you. Thank you for inviting me here today
to talk about our organization's views on the bills before the
committee. I am representing the Environmental Council of the
states, or ECOS, whose members of the leaders of the state and
territory----
Mr. Shimkus. Can you pull your microphone just a little bit
closer and maybe lift it up?
Ms. Hanson. Sorry.
Mr. Shimkus. And pull it closer. There you go.
Ms. Hanson. I am representing--it is not staying on. There
we go.
I am representing the Environmental Council of the states,
ECOS, whose members are the leaders of the state and
territorial environmental protection agencies. My main points
today are, first, that ECOS supports concepts found in the
three bills addressing RCRA and CERCLA issues. Second, in
particular, ECOS supports the expansion of consultation with
states as described in the bills, and also that ECOS especially
acknowledges that the bills directly address concerns expressed
by the states in two of ECOS's resolutions on Federal
facilities' operations under RCRA and CERCLA. These resolutions
were attached to our written testimony.
We are pleased that the committee has taken an interest in
addressing RCRA and CERCLA in a manner that focuses on
implementation issues that states and EPA regularly face. We
are in an era where funds to implement our Nation's
environmental statutes are tight, but the sites needing
remediation these days are more complex than when the program
started. We are in need of flexibility and efficiency more than
ever both at the state and Federal level.
Overall, we support the changes that these bills seek and
we believe they will improve the implementation of RCRA and
CERCLA and help achieve the goals of those statutes more
quickly.
First I will address the bill entitled the Reducing
Excessive Deadline Obligations Act of 2013. Simply put, this
bill allows EPA to emphasize the administrative priorities that
warrant its attention and to establish in statute a
longstanding practice at EPA regarding matters that it may
undertake at its discretion.
The next bill I will address is entitled the Federal and
state Partnership for Environmental Protection Act of 2013. The
first part of this bill addresses consultation with the states.
ECOS strongly approves this section, which addresses issues
outlined in several ECOS resolutions. The second part of this
bill addresses state credit for other contributions. It is our
understanding that this bill does not expand the state's cost
share for removal actions beyond what is currently required,
and our comments are made with this understanding. This change
will greatly assist during this time of tight budgets and
should help move these projects along more quickly.
Furthermore, assuming the legislation does not intend to create
an additional cost share in removal actions, ECOS supports the
legislation, because if a state performed an action, such as
site stabilization, that the EPA later classified as a removal
action, then there may be an opportunity to get credit for
those state expenditures.
We also endorse Section 4. Placing the site on the National
Priority List is important to a state, as its action must go
all the way to the Governor's office. ECOS believes that EPA's
policy has been to seek state concurrence when listing a site
for the NPL; however, this is a policy, and we believe the
nation would be better served if it were a requirement.
The last bill I will discuss is the Federal Facility
Accountability Act of 2013. ECOS is especially pleased to see
the committee address this longstanding issue. This bill
directly addresses the concerns ECOS described in two of our
resolutions. ECOS believes this legislation will help states
assure environmental compliance on current and former Federal
facilities.
The most important aspect of this legislation is that it
sends a strong and appropriate message to all Federal agencies:
you must follow the Nation's environmental rules the same as
everyone else.
The legislation amends CERCLA to eliminate most, if not
all, of the barriers that states have experienced in dealing
with Federal agency compliance with the act. It is especially
useful to states to see that compliance and cost sections
change to conform with the experiences that non-Federal
entities face every day.
Finally, we support the ability for a state to request a
review by EPA to ensure consistency of some Federal action with
the guidelines, rules, regulations or criteria established by
EPA under Title I of CERCLA. The section closes a potential
loophole in advance.
In summary, ECOS sees that these bills will assist in many
ways, including holding Federal facilities to the same
standards as other regulated entities, clarifying regulations
and procedures, improving state-Federal communications,
improving cleanup financing, and implementing state EPA
concurrence on how to treat Superfund sites, to name a few.
Mr. Shimkus. Thank you.
[The prepared statement of Ms. Hanson follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Shimkus. The chair now recognizes Mr. Jeffery Steers,
Director of Central Office Division of Land Protection and
Revitalization from the Virginia Department of Environmental
Quality, on behalf of the Association of state Territorial
Solid Waste Management Officials. Sir, welcome.
STATEMENT OF JEFFERY STEERS
Mr. Steers. Good morning. And thank you, Mr. Chairman, and
members of the subcommittee for allowing ASTSWMO, the
Association of state and Territorial Waste Management
Officials, to testify before you today regarding these three
bills.
states value the relationship that we currently have with
U.S. EPA, and together, through several types of cooperative
agreements both as individual states and as an association,
continue to make great strides in addressing some of the most
contaminated land in the United states. While we can all agree
that the Superfund program has success stories, 30 years of use
necessitates some changes and updating. The decisions made by
Congress and EPA can have a profound impact on state resources.
states share a common goal with the Federal Government in
ensuring that risks to human health and the environment are
mitigated and appropriately addressed. Our association is
committed to ensuring that this is done in an efficient, cost-
effective manner, and I will briefly summarize our position on
each specific bill.
With respect to the Reducing Deadline Obligations Act of
2013, we support this bill. Specifically our interests
surrounds the proposals that allow the individual states to
maintain financial assurance requirements already in place so
as not to allow Federal preemptions to override state financial
assurance programs. Member states have enacted robust financial
assurance requirements for various classes of facilities and
other types of facilities under RCRA. The impacts of any new
Federal requirement must be carefully coordinated and evaluated
in the context of existing state laws and obligations.
ASTSWMO supports the provisions proposed in the Federal and
State Partnership for the Environmental Protection Act of 2013,
especially with respect to fund lead sites placed on the
National Priorities List. Our members continue to be challenged
with skyrocketing financial obligations, which include 10
percent cost share of the remedial action, and O&M in
perpetuity. EPA consultation with states on removal actions,
listing to the NPL and on remedy selection doesn't, in fact,
occur regularly. The end result of this consultation is often
problematic and inconsistently used across the EPA regions. The
states have no interest in delaying emergency or time critical
removal actions, for example; however, non-time critical
removal actions are not viewed as urgently, and state
concurrence and development of a plan for the status of some of
these sites after a removal action is taken are needed.
With respect to NPL listing, ASTSWMO supports greater
consistent consideration by EPA relative to state obligations
to inclusion on the NPL. states are under a significant
pressure to just concur with individual listing decisions.
CERCLA authority is one tool to address contaminated lands. As
states evaluate proposals for listing, we look for other
opportunities, including economic redevelopment opportunities,
to help drive cleanups. Oftentimes there is a prospective
purchaser willing to adequately mitigate the environmental and
human health risks on a contaminated property, provided they
have future certainty and avoid the stigma of Superfund. state
voluntary programs can in many circumstances serve as a
substitute for the long and costly CERCLA Superfund process.
states should not be pressured into accepting at face value
a listing on the NPL, especially where the fund is being used
and resulting in significant state resources.
The provisions of this bill that seek to give states the
ability to add sites to the NPL is fully supported by ASTSWMO.
While there may be a perceived notion that there are dozens of
state priorities that would be suggested for listing, this is
simply not the case. states recognize the limited resources
that we all have and understand that we have complex sites that
have--we need to get the biggest bang for the buck.
ASTSWMO strongly supports a process for more concurrence
with selected remedies, especially at fund lead sites. Many of
our member states have sophisticated programs, and we can offer
the technical fire power that ensures remedies will be
effective. All too often we come across sites that are turned
over to the states that are nothing more than a pig in a poke
and the state is responsible for the long-term care.
An example of a $100,000 problem that our state and other
states have seen is something as simple as piping that was
clogged and was not able to be properly maintained during the
time that EPA had a site under its control, and the state took
the site over and had to re-fix a lot of the problems.
We strongly support the Federal Accountability Act of 2013.
No entity, whether privately or publicly owned, should be given
special treatment when it comes to protecting human health and
the environment. Federal agencies playing the sovereign
immunity card only serve to delay and put citizens in harm's
way. states continue to believe that the Federal Government
should be accountable to adherence with CERCLA, similar to what
is required under the Clean Air Act, Clean Water Act and RCRA.
The universe of sites subject to CERCLA includes properties
owned by Federal, state and local governments and private
entities. The protection of our citizens should not be seen not
through the color of ownership. Many states and localities are
also limited with the resources that they can bring to bear, so
we all need to work together in our obligations.
It is inherently wrong for the Federal Government to shirk
its responsibilities due to cost considerations. It is
important that Federal facilities and agencies be accountable
to the same requirements as all other regulated entities,
including state-specific requirements to ensure equal treatment
and protection under the law.
In closing, let me just say that the CERCLA process is
complex and we ought to take a page from business where they
look at processes and quality improvement and using things such
as value stream mapping and lien to look at the national
contingency plan in the way that Superfund is managed.
I would like to thank you again for allowing me the
opportunity to speak before you, and I will be available to
answer any questions.
Mr. Shimkus. Thank you.
[The prepared statement of Mr. Steers follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Shimkus. The chair now recognizes Mr. Dan Miller,
Senior Assistant Attorney General, Natural Resources and
Environmental Section of the Colorado Department of Law. Sir,
you are welcome; you are recognized for 5 minutes.
STATEMENT OF DANIEL S. MILLER
Mr. Miller. Thank you, Mr. Chairman, members of the
subcommittee. I am here today on behalf of the Hazardous
Materials and Waste Management Division of the Colorado
Department of Public Health and Environment. That is the agency
that works with EPA in implementing the Superfund program and
it also implements the state equivalent of RCRA.
My written statement addresses all three bills, but----
Mr. Shimkus. If you can just pull that--just bend it so the
mike's closer to your mouth. There you go.
Mr. Miller. My written statement addresses all three bills,
but due to time limits, I will probably just be able to focus
on sovereign immunity and state rule and remedy selection
today.
The Federal Facility Accountability Act broadens the CERCLA
sovereign immunity waiver, a change Colorado and other states
have long supported. There is simply no reason why Federal
agencies should be above the law. Private entities have to
clean up their mess, states and cities have to clean up their
mess. There is no reason Federal agencies should be any
different, especially since they have some of the most
contaminated sites in the country, yet Federal agencies have
relied on the current wording of the CERCLA waiver to argue
that they are immune from the application of state laws at
sites that they once contaminated but no longer own. They have
also used it to argue that state laws do not apply at Federal
facilities that are listed on the Superfund National Priorities
List.
On a cursory review, the bill before us appears to resolve
these concerns; however, sovereign immunity is a very complex
area of the law and we would welcome the opportunity to work
with the committee--subcommittee and the committee to be sure
that the proposed bill really does accomplish its intended
purpose and addresses the issues that the states commonly face
in cleaning up Federal facilities.
One of these issues that I would like to call out is
Federal agency reluctance to comply with what is known as state
institutional control laws, laws like environmental covenant
laws. These are legal mechanisms that restrict land use at
remediated sites and help limit exposure to residual
contamination or protect the engineered components of a remedy.
We don't have any problem getting private entities to comply
with these laws, but Federal agencies have long resisted their
application.
Turning to the state role in CERCLA remedy selection, our
main concern is that CERCLA's cost sharing structure creates
incentives for EPA to choose remedies that cost less for the
initial cleanup at the expense of more costly long-term
maintenance. Under the current statute and regulations, EPA
pays 90 percent of upfront remedy costs and states pay the
remaining 10 percent, but after 10 years states have to pay all
of the operation and maintenance costs, which can be
substantial. At historic mining sites, for example, EPA
remedies often rely on water treatment plants that must
essentially be operated in perpetuity. These plants may cost
millions of dollars a year to run. Over the decades, these
operation and maintenance costs will eventually overwhelm the
amount of money that was spent on the remedy and change the
fundamental balance of the Superfund program cost share from
predominantly Federal to predominantly state funded.
A second concern we have is that EPA and other Federal
agencies implementing CERCLA sometimes resist Colorado's
efforts to have its state laws designated as ARARs, the CERCLA
term for cleanup standards that a particular cleanup has to
meet. Once again a common area of dispute is the state's
environmental covenant law, which is frequently ignored in
removal actions and sometimes even at remedial actions.
With these concerns in mind, let's turn to the Federal and
state Partnership for Environmental Protection Act. Section 2
emphasizes CERCLA's existing mandate that EPA consult with
affected states in remedy selection. While we agree that EPA
certainly sometimes views its obligation to consult rather
narrowly, we are concerned, based on our understanding of the
congressional process, that because this bill proposes to amend
Section 104 and Section 120, it could open the door to other
more controversial amendments to these sections. Perhaps there
is a procedural way to limit the scope of any amendments.
Section 5 of the bill creates a new exception to CERCLA's
bar on pre-enforcement judicial review of remedies. This is one
of the key provisions of the statute. The pre-enforcement bar
prevents litigation from delaying needed cleanup actions. The
proposed amendment undermines this fundamental protection by
allowing any person to challenge a remedy before implementation
whenever a state has simply objected in writing to the proposed
remedy.
We don't think this is the proper response to address the
concerns we have cited above. Instead, we would address a
concern about the fiscal impact to states of expensive long-
term O&M by revisiting the cost sharing allocation in the
statute and regulations. If legislation is needed to address
the concern that EPA doesn't consistently recognize state laws
as ARARs or otherwise limits state input on cleanup decisions,
it should be possible to craft a narrow legislative solution
that does not undermine the bar on pre-enforcement judicial
review.
Thank you.
Mr. Shimkus. Thank you.
[The prepared statement of Mr. Miller follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Shimkus. The chair now recognizes Ms. Abigail Dillen,
Coal Program Director from Earthjustice.
STATEMENT OF ABIGAIL DILLEN
Ms. Dillen. Thank you. Good morning, Chairman Shimkus, and
members of the subcommittee. Thank you for the opportunity to
offer testimony this morning. I will be addressing the proposed
amendment of RCRA, Section 2002(b) under the Reducing Excessive
Deadline Obligations Act of 2013.
I am Abigail Dillen. I direct the Coal Program at
Earthjustice and I am also a managing attorney there.
Earthjustice is a non-profit public interest law firm dedicated
to protecting the environment.
RCRA, Section 2002(b) provides for periodic review and
revision of the regulations implementing RCRA, as you know. And
to be clear, the Environmental Protection Agency always enjoys
the discretion to determine when revisions are necessary. As
this provision is currently written, it strikes a careful
balance, ensuring that regulations are updated to address
evolving waste management issues while still leaving EPA broad
discretion to manage RCRA programs as it sees fit and determine
regulatory priorities.
This bill would upset that balance in order to derail three
parallel lawsuits that were filed to compel an EPA decision on
badly needed regulation of coal ash and other waste from coal-
fired power plants.
As EPA acknowledges, regulation of coal ash is already long
overdue, but the agency continues to delay issuance of final
regulations. This delay is harming the many communities around
the country that are contending with water contamination,
fugitive ash dust and the risk of catastrophic collapse of ash
impoundments in the absence of effective safeguards.
At the same time, ongoing regulatory uncertainty is bad for
business, according to the coal ash recycling industry. And
that is why the ash recycling industry and conservation groups
are both suing under Section 2002(b) to prompt overdue action
by EPA. This bill would deliberately undercut those lawsuits,
leaving coal ash regulated indefinitely. More broadly, it would
upset a longstanding statutory scheme for updating RCRA that
has never proven to be unworkable.
This bill's supporters are claiming that current law
requires EPA to review or promulgate regulations within time
frames that have proven unworkable and that this provision has,
quote, only led to lawsuits for failure to meet these
deadlines. However, in the 37 years since Congress established
Section 2002(b), a total of three lawsuits have been filed, and
those are the three lawsuits pertaining to regulation of coal
ash. One has been brought by conservation groups represented by
Earthjustice. And, again, the others have been brought by
Headwaters Resources and Boral Material Technologies, two of
the leading companies that market coal ash to make commercially
valuable building products.
The transparent intent of this bill is to undercut these
lawsuits and prevent a Federal court from imposing needed
deadlines: one, for coal ash regulations that EPA has
acknowledged are needed; and, two, for a decision on the
threshold question whether coal ash should be regulated as a
hazardous waste under RCRA, subtitle (c) or as a solid waste
under RCRA, subtitle (d).
I want to underscore, it is simply not the case that this
deadline has ever proven unworkable. And to Chairman Shimkus,
your point about EPA's testimony, we have not had the benefit
of seeing it yet, but I am not surprised the agency is eager to
avoid any deadlines whenever possible. Of course it is an
agency that contends with many deadlines, but if there is one
thing that many of us can agree upon in this room is that
without deadlines, work doesn't get done.
And I can't overstate the importance of addressing
longstanding environmental harms that are associated with the
regulatory failure to address coal ash. In 2000, 13 years ago,
following years of study in the 1990s, EPA concluded that
establishment of national standards under RCRA, subtitle (d)
was necessary, quote, to ensure a consistent level of
protection of human health in the environment. But in the 13
years since EPA made that formal finding, EPA has yet to
undertake any of the requisite regulatory revisions that are
needed to end the unsafe dumping of coal ash. This delay poses
an unacceptable threat to the environment and it perpetuates
regulatory uncertainty that is unacceptable to the ash
recycling industry.
In short, this bill would eliminate a statutory provision
that has operated for 37 years without incident, only to
exacerbate the problems caused by EPA's inexcusable delay in
regulating coal ash.
Thank you.
Mr. Shimkus. Thank you.
[The prepared statement of Ms. Dillen follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Shimkus. The chair now recognizes Mr. Thomas Duch, City
Manager, city of Garfield, New Jersey. Sir, you are recognized
for 5 minutes.
STATEMENT OF THOMAS DUCH
Mr. Duch. Mr. Chairman, committee members, I appear before
you today on behalf of the people of the City of Garfield, a
community of approximately 31,000 people located in south
Bergen County in the State of New Jersey. We are multi-ethnic,
multi-cultural and a multi-religious community. We are a
microcosm of America itself.
Our city is an old industrial city filled with tired
factory buildings, many of which are beyond their useful life.
Many of these former industrial sites have contamination
problems which are beyond the grasp of local government to
handle.
Back in 1983 at the EC electroplating factory in our
community, there was a spill of hexavalent chromium. 3,640
gallons of chromium were released into the Earth. Of that,
1,056 gallons were recovered, with the rest remaining in our
soil.
Over the last 25 years, the NJ DEP handled this site. They
made a determination in the late 1980s that no further action
was required and that there were no health concerns.
In early 1993, Fire Company Number 3, located in the
downstream plume of the underground water table had to be
closed due to the detection of hexavalent chromium in the
basement of that firehouse facility.
As we have learned, once hexavalent chromium enters a
building and crystallizes, it can be dispersed into the air.
Scientific evidence tells us that if you breathe that dust into
your lungs, it will likely cause cancer.
Approximately 5 years ago, in the fall of 2008, I was
contacted by the U.S. EPA. I was told that they were taking on
the responsibility for the chromium spill in our city. My
initial meeting was productive and I was impressed with the
competence and the genuine interest of the EPA in helping our
people. We provided them with lists of residents, property
owners and tenants in an effort to get notice out to the
community that the EPA would investigate and examine homes and
properties in the affected area.
The EC electroplating facility is located in a densely
populated section of Garfield. Within the spill area, there are
approximately 600 separate parcels of property. These include
one and two-family homes, multi-family dwellings, an elementary
school, a daycare facility, houses of worship and industrial
and commercial properties. We have approximately 6,300 separate
parcels of property in our city, therefore, almost 10 percent
of our community has been affected.
Notification has been made to residents in multiple
languages: English, Spanish, Polish and Macedonian. We have
conducted many public hearings with the EPA to provide
information to our people and to answer their questions.
The EPA's team on the ground in Garfield has been
exceptional. They have answered our concerns professionally,
knowledgeably and competently. They have given reassurance to a
scared populace, but despite that reassurance, property values
in the area have declined significantly.
With the assistance of the EPA, 400 homes and properties
have been examined. Contaminated properties detected to date
have been cleaned up and monitoring wells have been installed
throughout the affected area in order to fingerprint exactly
where the contamination lies below the surface.
To get into the ground below the EC electroplating
facility, demolition of the building on the surface was
required. Due to safety concerns expressed by residents that
chromium-tainted dust could be released from the property
during demolition, an additional public hearing was held with
the staff and administration of a kindergarten through fifth
grade elementary school one half block from the site. That
hearing included residents throughout the affected area.
The factory itself has now been demolished. The site is
fenced and ready for the next phase of study to plan for the
removal of the chromium that sits below ground in the water
table of this neighborhood.
This phase, the analysis and cleanup phase, will absolutely
require continued funding of the U.S. EPA initiative in the
City of Garfield. We are a Superfund site. We are a Superfund
cleanup priority. We are a community living in fear that this
chromium in our water table may be impacting the health, safety
and welfare of our residents. Our cleanup need is immediate.
I urge your committee to continue with the necessary
funding to address Superfund sites, not only in the City of
Garfield, but throughout the Nation. It is incumbent upon all
of us as public officials to prioritize and to fund those
budgetary requests that provide the greatest good for the
people that we answer to. I respectfully request your support
for all of the cleanup funding that is necessary in the City of
Garfield and all other sites which present immediate health
hazards to the people who live in or near them.
Thank you, Mr. Chairman, members of the committee, for
giving me the opportunity to appear before this prestigious
committee.
Mr. Shimkus. Thank you.
[The prepared statement of Mr. Duch follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
[The prepared statement of Mr. Stanislaus follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Shimkus. Now the chair recognizes himself for 5 minutes
for 5 minutes of questioning.
Let me start with Ms. Dillen. When Earthjustice has engaged
in litigation with the EPA, does Earthjustice receive
compensation from the Federal Government for attorney fees and
court costs?
Ms. Dillen. Only if we prevail in a lawsuit. The Federal
Government is like any other party, and if it is----
Mr. Shimkus. So the answer is yes. And can you give us how
much you received in 2012?
Ms. Dillen. No. I don't have that figure.
Mr. Shimkus. Well, can you submit that to the committee for
the record?
Ms. Dillen. Yes, I certainly can.
Mr. Shimkus. Great. Thank you.
Let me follow up with you. Do you have a position on any
other legislation we are discussing today?
Ms. Dillen. Not that I am prepared to discuss.
Mr. Shimkus. So a hearing on three pieces of legislation,
so you decided just to testify on one?
Ms. Dillen. Chairman, I was asked to address the 2002(b)
issue, which I have particular knowledge about. I am not an
expert on CERCLA, and wouldn't care to----
Mr. Shimkus. Let me ask a question as a citizen. If there
is a state and has a Federal facility that has major
contamination, do you think that the Federal Government should
comply with the same laws that states, local communities and
businesses have to abide by?
Ms. Dillen. Chairman, I am here to testify about 2002(b),
and I would prefer not to wade in to CERCLA, which is an area
that requires, I think----
Mr. Shimkus. Thank you.
Ms. Dillen [continuing]. Tremendous sensitivity----
Mr. Shimkus. Thank you.
Ms. Dillen [continuing]. And expertise.
Mr. Shimkus. Mr. Duch, let me ask you that same question on
just Federal facilities. If a Federal facility is in your
community and it has the same type of problem as you just
outlined by a private sector business, should that Federal
facility have to comply with the Federal laws in your
community?
Mr. Duch. Mr. Chairman, in my opinion, a Federal facility
should apply just like every other facility.
Mr. Shimkus. All right. Thank you very much.
Let me now go to Ms. Hanson. ECOS has adopted a resolution
that it advocates clarification of the CERCLA waiver of
sovereign immunity to ensure that Federal facilities are
subject to appropriate state regulations. Does the Federal
Facilities Accountability Act accomplish the purposes of the
ECOS resolution?
Ms. Hanson. According to our understanding of the bills, we
do believe that it addresses concerns expressed by the states
in that resolution.
Mr. Shimkus. Does ECOS support the Federal and state
Environment Partnership for Environmental Protection Act?
Ms. Hanson. I will have to double-check on that.
Mr. Shimkus. Well, that is----
Ms. Hanson. I am--yes.
Mr. Shimkus. The name, we have the REDO Act, the state
Partnership Act and we have the Federal Accountability Act,
three pieces of legislation in this oversight hearing today.
Ms. Hanson. And which one were you asking about? I am
sorry.
Mr. Shimkus. In essence, the state Partnership Act, giving
states more of a role in the whole process as----
Ms. Hanson. I am sorry. I got my pages out of order.
We addressed certain part--we agree with certain parts of
the bill: the consultation with the states and the credit for
state contributions.
Mr. Shimkus. Mr. Steers, can you describe the role states
currently have in administering the CERCLA cleanup program?
Mr. Steers. Yes. Many of the states work with the EPA on
oversight and also assist the U.S. Government through
cooperative agreements on doing site assessments and
preliminary investigations at the very front end of the CERCLA
process where we identify sites.
So the states have a role in working with U.S. EPA in
identifying sites that may be at risk. We also have a role in
using state Superfund contracts for the process of state input
and oversight, at least to be able to offer that; not always
used, but we do get that opportunity.
Mr. Shimkus. Do you have any decision-making authority
under CERCLA?
Mr. Steers. I will say it is very limited. And typically
what--and what we would hope by these bills is that we have
more authority, especially when it comes to determining whether
to even put a site on the NPL, or with the remedy; especially
with the selection of a remedy.
Mr. Shimkus. Yes. And I think you followed--that was my
follow-up question. Why would that--why is it important that
the states at least have some role? So it is really the NPL
issue, too. You may want to more rapidly identify a location on
the NPL. And correct me if I am wrong, by empowering you all,
you may be able to leverage that and get a site on the NPL
sooner?
Mr. Steers. We may be able to do that. We have--states
understand their sites the most and have the greatest boots on
the ground with being able to identify what our priority sites
are. So having the ability to suggest sites for the NPL is also
something that I think we all as states would support where it
is appropriate.
Mr. Shimkus. Great. My time has expired. The chair now
yields to Mr. Tonko for 5 minutes.
Mr. Tonko. Thank you, Mr. Chair. And, again, good morning
to our witnesses. I would like to examine one legislative
provision in the bills before us that may be particularly
controversial.
Section 113 of CERCLA includes a statutory bar on pre-
enforcement review of cleanup remedies. My understanding is
that when this committee crafted the law decades ago, this was
considered a very important key provision.
Mr. Miller, your testimony refers to this bar on pre-
enforcement judicial review as, and I quote, one of the key
provisions of the statute. Can you explain why that provision
is so important?
Mr. Miller. Certainly. The concern was that without the bar
on the pre-enforcement review, anyone would be allowed to
challenge an EPA decision on a remedy and thereby delay the
implementation of the remedy potentially for years while the
litigation runs its course. And so obviously there was a
concern that responsible parties at these sites might seek to
delay their obligation to clean up the site, but it could go
the other way. Everybody is precluded pretty much from
challenging remedies prior to their implementation,
environmental groups, industry, states.
Mr. Tonko. And so is the result, then, of that perhaps
added or extended hazardous and human health concerns?
Mr. Miller. Well, because the statute bars that type of
litigation, it allows the remedies to be implemented in a
timely fashion, and then people can sue after the remedy has
been implemented to challenge whether it was a correct decision
or not, but in the meantime you have addressed the human health
concerns by implementing the remedy.
Mr. Tonko. So then what problems would arise if Congress
did indeed lift this bar and allowed judicial review of cleanup
remedies?
Mr. Miller. As I read the provision, any time a state has
expressed an objection to a remedy, it would allow any entity
to sue to block implementation of the remedy, and so at sites
where that occurred cleanup could be delayed for years.
Mr. Tonko. And an increased litigation that would result?
Mr. Miller. It would--I mean, yes.
Mr. Tonko. So, Mr. Miller, it appears that the way the
proposal is drafted, even a responsible party would be able to
go to court to challenge a remedy before its implementation.
Mr. Miller. That is how I read the provision.
Mr. Tonko. And the responsible party could have a financial
incentive to go to court, delay a cleanup and argue for a less
protective cleanup remedy? Is that correct?
Mr. Miller. Yes, that is correct.
Mr. Tonko. I guess someone could argue that despite those
drawbacks, this provision might still be worth it if it
resulted in better cleanups, but this provision would result in
judges deciding the best way to clean up Superfund sites.
Does anyone on the panel think that judges would make the
best technical cleanup decisions? Anyone?
Mr. Miller. I guess it depends on the standards they are
applying. Typically judges give some deference to agency
decisions within the area of their expertise, but the main
concern here is with the timing of the litigation and the
timing of when the cleanups would happen.
Mr. Tonko. Anyone else that might have an opinion on having
it fall to a judicial interpretation? Anyone?
If not, Mr. Duch, you are a city manager trying to get a
site cleaned up in your community. What would be your advice to
the committee when you hear that we are considering a
legislative proposal that could increase litigation and in fact
delay cleanups?
Mr. Duch. My primary concern as a city manager is really
the health, safety and welfare of the people who live in that
area. Any litigation that would slow up the process is
certainly not desired. Anything that allows the filing of more
litigation could present a problem in my community. Right now
there is no litigation. We are proceeding. Litigation would
slow us down.
Mr. Tonko. And, Mr. Chair, the basic policy behind
Superfund is that polluters should pay for their pollution. May
I respectfully share that I think we should be very careful
about potentially creating new avenues for litigation that can
allow polluters to delay cleanups and argue for weaker
protections. They have a financial incentive to do so, but that
does not align with the public interest.
With that, I yield back.
Mr. Shimkus. The gentleman yields back. I think we have
time for one more round of--not round, but one more question
before there is votes. There are 11 minutes left on the floor.
So the chair now will turn to Mr. Murphy for 5 minutes.
Mr. Murphy. Thank you, Mr. Chairman. I was assuming I
wasn't going to get to, so I will pass, go to somebody else. I
am still preparing my questions.
Mr. Shimkus. Well, for the majority time, does anyone want
to seek time for the 5 minutes? Mr. Latta.
Mr. Latta. Well, thank you, Mr. Chairman. And thanks very
much for our witnesses for being here today. I really
appreciate it.
And if I could start with Ms. Hanson, if I may. Kind of
following along the chairman's lines, the question is, has
ECOS, has it adopted a resolution regarding the fact that
states are co-regulators with the Federal Government and that
there should be a meaningful and substantial involvement of the
state environmental agencies as partners?
Ms. Hanson. We have.
Mr. Latta. OK. And does the Federal and state Environmental
Partnership for Environmental Protection Act accomplish the
purpose of the ECOS resolution?
Ms. Hanson. In that it addresses consultation with the
states, it does.
Mr. Latta. OK. And let me just ask to follow up with that,
is that consultation very--you know, I came from state
government. I was in the legislature for 11 years. And I was
also on the receiving end. I was a county commissioner for 6
years. So I was getting it from the Federal and the state.
So does the ECOS support the Federal and state
Environmental Partnership for the Environmental Protection Act?
Does that----
Ms. Hanson. I didn't follow your question. I am sorry.
Mr. Latta. OK. Does the ECOS support the Federal and state
Environmental Partnership for the Environmental Protection Act?
Ms. Hanson. We support parts of the bill: the consultation,
the state credit for their contributions, and placing the sites
on the National Priorities List.
Mr. Latta. OK. And following along those lines, in your
testimony it notes that the EPA is not obligated to listen to
state input about the remedy selection for sites on the
National Priority List. And to what extent does the EPA include
the states in selecting a response action?
Ms. Hanson. I believe that would vary state to state. If
you wanted specific numbers or responses, I would have to get
back to you.
Mr. Latta. OK. Well, when you say it varies from state to
state, is there a wide variance? Or how would you rank that?
Ms. Hanson. Again, I would have to check on exactly what
that would be.
Mr. Latta. OK. And if I could turn to Mr. Steers, if I
could ask you. Do Federal agencies, including the EPA,
implementing the CERCLA routinely comply with all applicable
state requirements, and if not, why not?
Mr. Steers. Well, we often identify and actually we always
do identify the ARARs in the state requirements. Typically,
though, the Federal agencies, especially on former use defense
sites, for example, the agencies tend to use sovereign immunity
as a get-out-of-jail card, if you will, trying to circumvent
state requirements that may be more stringent, and especially
considering them and other media such as the NPDS water
programs and the Clean Air Act. So states have authorized
programs and have regulatory requirements that we end up having
delayed Federal actions because of debates on sovereign
immunity.
Mr. Latta. OK. But in those, who typically determines what
state requirements are applicable?
Mr. Steers. Can you repeat your question again?
Mr. Latta. Yes. Who typically determines what state
requirements are applicable?
Mr. Steers. You know, the states are only in a position to
offer these up. And at the end of the day EPA and the Federal
agencies determine which ARARs that are going to be used.
Mr. Latta. Thank you, Mr. Chairman.
Mr. Shimkus. Will the gentleman yield?
Mr. Latta. I yield to the chairman.
Mr. Shimkus. Thank you. I had a follow-up question for Mr.
Duch. I come out of local government, too. So I appreciate
folks in municipalities, counties, and townships. If you were
required under state statute--I assume cities in New Jersey are
empowered by the state constitution, which allow you to
incorporate as a city--I mean, is that correct?
Mr. Duch. Our city is incorporated. I don't understand, Mr.
Chairman.
Mr. Shimkus. Well, the state gives that you authority to
incorporate to become a city by the state constitution.
Mr. Duch. Correct.
Mr. Shimkus. So let say the state passed a law and said,
City, you have to review all of ordinances every 3 years. Would
that be helpful?
Mr. Duch. It probably would be helpful. New Jersey is known
for having many old, old laws----
Mr. Shimkus. So I can, then, call the State of New Jersey
and say, I have got a city manager who says it is going to be
helpful to him to review all his local ordinances every 3
years. And, if not, then people who are adverse to that would
be able to take the city to court because you haven't reviewed
those laws in 3 years. Is that what you are asking for?
Mr. Duch. I am not asking for that, Mr. Chairman.
Mr. Shimkus. But the point of the question is one of the
pieces of legislation says that the Federal Government, the EPA
has to review every regulation within 3 years. And if they
don't, whether it is a good regulation or not, they have to
review it. And, if not, then outside parties can sue them.
Would you like the same type of venue for your local community?
Mr. Duch. It would slow down our ability to run the
government if there was a review process.
Mr. Shimkus. Yes, sir. And very costly.
Mr. Duch. Absolutely.
Mr. Shimkus. And possibly litigious.
Mr. Duch. If I had to make a choice between doing that and
spending the money on the cleanup, I would spend the money on
the cleanup.
Mr. Shimkus. Amen, brother. Thank you. I am going to recess
the committee till after votes. We will reconvene about 15
minutes after the last vote. The hearing is recessed.
[recess.]
Mr. Latta [presiding]. I would like to call the
subcommittee back to order. I believe I was the last to ask
questions before the recess for votes. And the next questioner
on the Democratic side is the gentleman from Michigan, the
chairman emeritus, Mr. Dingell is recognized.
Mr. Dingell. Mr. Chairman, I thank you for your courtesy.
These questions go to Mr. Miller of Colorado Department of Law.
Mr. Miller, relating to the amendments in Section 108 of
CERCLA, how many states have promulgated the financial
responsibility requirements?
Mr. Miller. I don't know the answer to that question.
Mr. Dingell. We will submit it for the record.
Mr. Miller. But certainly, any state that has a RCRA
program or state equivalent to RCRA, would have financial
assurance for----
Mr. Dingell. But the answer is very few, if any. Is that
right?
Mr. Miller. I am not sure.
Mr. Dingell. OK. Let's go to the next one. I don't want to
be unfair to you.
Relating to the amendment to Section 2002(b) of CERCLA,
which eliminates the requirements of current law that require
the Administrator to review regulations every 3 years, this
requirement has been a part of the Federal law for over 30
years. Do you believe that the efforts to change this
longstanding provision have anything to do with litigation
relating to coal ash regulations? Yes or no.
Mr. Miller. It is my understanding that it does.
Mr. Dingell. Thank you. Now, sir, does anything prevent a
state from obtaining funding for its activities on Superfunds
and things of that sort from fees, taxes, or other revenues to
clean up toxic waste sites in their state?
Mr. Miller. They would just have to do it in compliance
with whatever their state laws are.
Mr. Dingell. So there is no obstacle in any Federal law to
prevent them from doing so?
Mr. Miller. Not that I am aware of.
Mr. Dingell. OK. Now, if states then choose to exercise
this, they have total control over the remedy selected or the
removal action taken. Is that not so?
Mr. Miller. It depends on whether the Federal Government is
also acting. If the EPA----
Mr. Dingell. No, but if the state initiates its own
program, using its own funding, it can then proceed to function
under its own law; right?
Mr. Miller. That is correct.
Mr. Dingell. Now let us draw our attention to Section
113(h). This provides new opportunity for lawsuits where a
state simply writes a letter objecting to a remedy selected by
the President. After such letter is posted by the state, it
would allow this new--under this provision, it would allow the
responsible party who polluted the site to litigate the
challenge and to challenge the remedy. Is that not so?
Mr. Miller. That is correct.
Mr. Dingell. I believe that Ms. Dillen--I have trouble
seeing--I believe you were of the same view. Is that correct?
Ms. Dillen. Yes.
Mr. Dingell. Thank you. Now, the next question is, would it
allow an environmental group also to challenge the remedy if
they could get a state to write such a letter? Yes or no.
Mr. Miller. Yes.
Mr. Dingell. OK. Who would, in fact, be barred from such an
effort; in other words, getting the Governor to write a letter?
Anybody could do it; right?
Mr. Miller. Anybody could try to do that, yes.
Mr. Dingell. Good. Now, in a situation where the state
wants the most gold-plated remedy which might require the
excavation and disposal of hundreds of tons of contaminated
soil so its future operation and maintenance costs for which
the state is responsible are less, could this new lawsuit
provision be used to leverage the Federal cleanup decision up
or down?
Mr. Miller. It would provide the states more leverage in
their discussions with EPA as to what their----
Mr. Dingell. I am not trying to trap you, but the answer is
yes, right?
Mr. Miller. Clearly, it is trying to give the states more
leverage in their negotiations with EPA.
Mr. Dingell. Now, this also affords opportunity for the
process to be delayed, does it not?
Mr. Miller. The way that provision is drafted, because it
affects the 113(h) bar on judicial review, it does----
Mr. Dingell. So again the answer is yes?
Mr. Miller. Yes.
Mr. Dingell. Now, what happens to the citizens surrounding
the community? Here we have a lot of folks living around the
site and they are daily being exposed to these hazardous
substances. And they want the site redeveloped to create jobs
and to make their lives and that of their families and children
more safe. So now we have a process where the decision is going
to be litigated, and this can take years in the Federal court
under this new lawsuit provision. Am I correct?
Mr. Miller. Yes, it could lead to lengthy delays in
cleaning up sites.
Mr. Dingell. And one of the problems I believe with
Superfund is that these things are litigated till hell freezes
over; isn't that right?
Mr. Miller. CERCLA litigation can go on for a long time.
Mr. Dingell. And it is having a prodigious delaying effect
on the cleanup of all of these poison sites and it is creating
huge difficulty in terms of seeing to it that we make the
progress that people desperately want in disposing of these
sites, and it is costing more money. Am I right or wrong?
Mr. Miller. Well, with the pre-enforcement judicial--the
bar on pre-enforcement judicial review in place, that limits
litigation that would delay cleanups. Most of the----
Mr. Dingell. So the answer is it permits a splendid
opportunity to obfuscate the process, delay the cleanup, and
cost a lot more money in litigation, which is a prodigiously
expensive undertaking. Right?
Mr. Miller. Right. It would open the door to a lot more
litigation.
Mr. Dingell. Now, Ms.Hanson----
Mr. Shimkus [presiding]. If the gentleman would suspend.
The clock got started late, and you are already 30 seconds
over.
Mr. Dingell. Am I incorrect that I have got 26 seconds?
Mr. Shimkus. And the clock got started late, so it is
really a minute and 26. But if the gentleman wants to ask
unanimous consent for an additional 30 seconds for----
Mr. Dingell. I will accede to the wishes of the chair. I
thank you.
Mr. Shimkus. Thank you. The chair now recognizes the
gentleman from West Virginia, Mr. McKinley, for 5 minutes.
Mr. McKinley. Thank you, Mr. Chairman. Just a matter of
housekeeping, Mr. Chairman, and for the panel, I think we have
worked under the idea in this committee, in my time, we were to
have all testimony submitted within 48 hours or prior to 48
hours before testimony. And, Ms. Dillen, were you aware of that
requirement from Earthjustice, that there is a 48-hour
restriction?
Ms. Dillen. Mr. McKinley, my understanding is there was
only an agreement reached late yesterday on what witnesses
would be here, and I only received my invitation to testify
yesterday afternoon.
Mr. McKinley. So there is some reason. Because we only got
your last night testimony around 7:30.
Ms. Dillen. Yes, there is a reason.
Mr. McKinley. So I didn't have a lot of chance. But I think
it was interesting because quite frankly, I thought, after
reading your testimony, I thought you were going to testify at
a different hearing. Because it really has little to do with
this hearing when 10 of the 15 pages had to do with fly ash
when--and then when they quizzed you, they were--someone
earlier, you didn't have expertise in all 3, but you did have
about the fly ash. So I hope you come back when we talk with
fly ash so we can have a meaningful, adult conversation with
that.
Ms. Dillen. I would be delighted to.
Mr. McKinley. But, in the meantime, I am trying to
reconcile your testimony. On page 4, you say that, ``In any
deadline enforcement case, the agency has ample time--'' on and
on--``and there is no reason to the courts will impose
unworkable deadlines.'' But yet then in your own brief you said
you think they should be forced to do it within 6 months. Can
you explain that a little bit better why there is this
contradiction in your testimony and in your legal brief?
Ms. Dillen. Certainly. There isn't a contradiction. In our
briefing, we take the position that EPA has had decades to come
forward with revisions of the regulations that should address
coal ash and has failed to do that. It has proposed a rule in
2009. We think that the agency could expeditiously wrap up this
rulemaking process that has created uncertainty for everyone.
Whether----
Mr. McKinley. There seems to be a bit of a moving target. I
am curious, I think some testimony--maybe, Mr. Duch, you
mentioned it, about some of the pollutants. But the legislation
that we passed four times out of here last year would have
resolved a lot of the issues that you are referring to about
groundwater contamination. Because under the legislation we
passed, it called for new liners underneath all new
impoundments that would take care of this, and called for
strict requirements over dam safety and water monitoring. All
the things--but yet your group opposed that. So I am just
curious about that, because you seem to be wanting it both
ways. When the legislation was addressing it. But I think the
real sticking point, if I am correct, is over primacy. You want
the EPA to control the landfills versus the House's position,
and with quite a few from the other side of the aisle, we are
looking for resolution by allowing the states. And the states
themselves have said they are prepared to do that. So you
worked against a resolution to the very problem you are
addressing.
Ms. Dillen. We want environmental protection in whatever
form it comes in. The House bill would not provide it.
Mr. McKinley. We gave it with putting liners underneath it
and dam impoundments so we wouldn't have another Kingston.
Because it wasn't what they were containing was the problem, it
was a failure of a dam that collapsed that caused that.
Ms. Dillen. Respectfully, we disagree. But that is a bill
that is not before the committee today.
Mr. McKinley. Thank you. So I was just curious because you
came and that is all your testimony has been, about fly ash. So
I am just curious to see what you know about it other than just
you want it your way and not in a way the committee--because we
had an earlier discussion with Administrator Stanislaus. And he
showed a very positive attitude about getting this thing
resolved this year. And I am very encouraged with the
possibility. We may very well through bipartisan get some kind
of resolution. But you seem to be stuck outside the table. I
would suggest that perhaps instead of looking for perfect, if
you are willing to compromise with us, we will all come to some
resolution and resolve this matter and remove the stigmas
associated with the recyclable materials.
My time--apparently, I have got a couple seconds. You want
to respond?
Ms. Dillen. We would certainly be interested in any action
by Congress that would resolve the longstanding water pollution
problems and fly ash air pollution problems and dam safety
issues. So far, that has not materialized.
Mr. McKinley. You understand Mr. Stanislaus already said he
is trying to work with us and try to get that resolved.
Ms. Dillen. I am sorry. I----
Mr. McKinley. You are not aware that the Administrator said
he is willing to work with us on a bipartisan----
Ms. Dillen. If the Administrator is willing to work with
Congress and Congress is willing to come to a solution that
actually works to address coal ash, we would be the first
people to endorse such a solution. So far, that solution has
not materialized.
Mr. McKinley. Thank you very much. Yield back.
Mr. Shimkus. Gentleman's time expired. Chair now recognizes
the gentleman from California, Mr. McNerney, for 5 minutes.
Mr. McNerney. Thank you, Mr. Chairman.
Ms. Hanson, could you tell me how many times a site has
been added to the National Priority List without the
concurrence of the state of location?
Ms. Hanson. I don't have a number right off. We would have
to look into that to get an actual number of times.
Mr. McNerney. My understanding is there haven't been any.
And I was wondering if that was because there was a tacit
agreement in place or was it because of financial constraints
at the EPA that states are not adding sites or not wanting to
add sites to the National Priority List?
Ms. Hanson. I don't know specifically why that would be.
Mr. McNerney. Well, my district has two Superfund sites.
And I was going to ask your opinion on what it would take to
get action on those sites. Would it take additional EPA budget
money? Would it take legislation here in Congress?
Ms. Hanson. Not knowing anything about those sites and
where they have fallen and looking at risk and things like
that, it would be hard to make any statement on how you get
those.
Mr. Shimkus. Would the gentleman yield? Are those on the
National Priority List right now, do you know? I am just
curious.
Mr. McNerney. Yes, they are. In fact, I can tell you what
they are, if you want.
Mr. Shimkus. No. I just--because part of this debate is if
states have bad sites, they are trying to use this venue to get
on the National Priorities List. It is not the flip side.
Mr. McNerney. Reclaiming my time.
Ms. Dillen, some have claimed that the deadline set out in
Section 2002(b) of the Solid Waste Disposal Act has proven
impracticable and it results in an avalanche of lawsuits. As
you mentioned in your testimony there has only been 3 lawsuits
under that provision in the last 29 years since the law has
been on the books. Do you believe that the EPA has been under
excessive burdens because of this review requirement?
Ms. Dillen. No. There is no evidence to suggest that it has
been. These 3 lawsuits all relate to a single issue, and that
is regulation of coal ash. And that is something that has been
an issue that EPA has recognized needs to be addressed for the
last two decades. And even in that court case, EPA has said, we
recognize we need to revise these regulations. And so now it is
just a question of getting it done. And I would submit that
without a deadline we won't see regulations to address this
problem in the foreseeable future.
Mr. McNerney. Thank you. Mr. Miller, you mentioned the
issue of Federal financial responsibility requirements,
potentially preempting state requirements. Do you believe the
EPA has the discretion to address that issue under current
authority?
Mr. Miller. My understanding of the existing law is that
EPA does have discretion to write rules that would meet the
intent of Section 108 to provide financial assurance for
releases of hazardous substances without preempting state laws
that address related but separate issues, such as RCRA closure
of hazardous waste impoundments, and the like, or mining bonds
under state mining laws to require reclamation. But they also
have the discretion to preempt.
Mr. McNerney. Thank you.
Ms. Hanson, again, you have expressed support for
protecting state financial responsibility requirements for hard
rock mining. How many states have adopted financial
responsibility requirements for hard rock mining?
Ms. Hanson. I do not have that number with me today.
Mr. McNerney. You will need to get that to us, then.
Ms. Hanson. OK.
Mr. McNerney. Has ECOS conducted a comparative analysis of
those state requirements to know how the requirements are
similar and how they are different?
Ms. Hanson. We have not.
Mr. McNerney. All right. I understand that we may be
marking these bills up in June. Will you commit to provide the
committee that information for the record before the markup
occurs?
Ms. Hanson. We will do our best to get that information as
rapidly as we can.
Mr. McNerney. Thank you. I yield back.
Mr. Shimkus. Gentleman yields back the time. Chair now
recognizes the gentleman from Florida, Mr. Bilirakis, for 5
minutes.
Mr. Bilirakis. Thank you, Mr. Chairman. I appreciate it
very much. Thank you for holding this hearing.
There are 16 Superfund sites in or near my Florida
congressional district, some of which have had the status for
several years. The length of time it takes for EPA and the
Florida Department of Environmental Protection to coordinate is
one of the reasons the process takes so long.
This question is for Ms. Hanson and Mr. Steers. You have
mentioned that EPA's coordination practices are not consistent
across regions or state to state. What legislative
recommendations do you suggest to ensure every state receives
equitable treatment? Whoever would like to go first.
Mr. Steers. Yes. I think in order to solve the--especially
with remedy selection and being able to get some more
consistency across the country by EPA regions, I think having
EPA have more skin in the game, if you will, may help that
concurrence be taken a little more seriously. It is not to say
that they are never concurring with or they are never taking
the information and the recommendations the states have, but it
is not done consistently. And the results when it is not done
on either poor design or performance of some of these long-term
systems are saddling the states with a lot of cost, my pipe
example being one. But there is many out there. And I believe
if EPA had more skin in the game by--you know, if they want to
minimize or marginalize a state's recommendations, then they
should be on the hook for some of the long-term O&M that goes
on with these sites. It is a way to ensure that the state's
voices are heard for the long course of O&M that can result
from not taking our comments into account during the remedy
selection.
Mr. Bilirakis. Thank you.
Ms. Hanson.
Ms. Hanson. Yes. ECOS always advocates for a stronger state
role in working on environmental issues with the Federal
Government. And under the current setup, the Federal Government
is only required to--is not required, actually, it is just a
policy that EPA consult with the states. And we have said in
our testimony that we would like it to be--we approve of it
being required.
Mr. Bilirakis. Thank you. Ms. Hanson, you note in your
testimony that providing a mechanism for states to list sites
that meet the listing criteria would make certain parties more
willing to negotiate with the states and resolve cleanup issues
without having to use Superfund money. Can you please explain
that or elaborate if you will?
Ms. Hanson. I think if sites knew that they could have a
state come to them in addition to just the Federal Government,
there is not just one mechanism but more than one mechanism or
more than one group, that they would be more willing to talk to
states. If they think it is only the Federal Government that is
going to come in on a site, on a complex Superfund-type site,
they are not going to talk to the states, they are going to
wait for the Federal Government to come in.
Mr. Bilirakis. Again for Ms. Hanson. EPA has indicated that
the agency has a policy of not listing its sites on the
National Priorities List over the objection of the states. Is
that policy applied consistently across the regions? And
shouldn't it be a requirement that EPA not list a site over the
objection of the state?
Ms. Hanson. We find that there are regularly variations
state to state, region to region, on all sorts of work with the
EPA. So having something a requirement ensures that it does
occur consistently.
Mr. Bilirakis. Anyone else wish to comment on that?
Mr. Steers. And I would agree. I think a lot of our states,
we feel like we are being pressured through the governance
concurrence process into putting sites on the NPL when, quite
frankly, there are other solutions out there that could
facilitate a cleanup much faster than just being in on the
CERCLA process. I understand there are some EPA regions where
they are actually going through looking at newspaper articles
for sites that potentially could be on the NPL as a way to try
to keep the ball rolling with getting sites enrolled in the
program. That is why I feel, and our association feels, that
having a process where you go through prioritizing the states
sites and what the state knows about the economic and
environmental conditions in a community-- in a previous
testimony I gave in front of this committee, I mentioned that
we have some success stories of watershed approaches that are
used sometimes to clean up several sites without having to go
through the long process on the NPL. And we had one in my
former State of Ohio that I worked for, which was a very big
success story, where a lot of contaminated property along the
Ottawa River was actually restored and cleaned up without the
Superfund stigma attached to it because all the responsible
parties came together, worked together, and facilitated a
cleanup on their own with the state using a voluntary cleanup
program as a way to restore that watershed.
Mr. Bilirakis. Thank you, Mr. Chairman. I yield back.
Mr. Shimkus. The gentleman's time has expired. The chair
now recognizes the gentleman from Texas, Mr. Green, for 5
minutes.
Mr. Green. Thank you, Mr. Chairman, for holding the
hearing. I am glad to hear that this will be the first of at
least two hearings looking at the successes and possible
shortcomings of RCRA and Superfund sites. Our district in East
Houston, on Harris County, Texas, has a number of Superfund
sites close in proximity, including the San Jacinto Waste Pits
and the U.S. Oil Recovery. With my colleague, Congress Ted
Poe's support, the EPA has been conducting studies and we are
in the early stages of cleaning up the San Jacinto River site.
U.S. Oil Recovery site was listed as a proposed addition to the
NPL in 2011. From what I have witnessed at the San Jacinto
Waste Pits, I believe the EPA is making great strides in the
Superfund program. However, as a form state legislator, I am
sensitive to the cost Federal decisions have placed on state
and local governments and hope this hearing will highlight the
importance of the EPA to work with the states as closely as
possible and weigh the long-term cost of remediated Superfund
sites on state governments.
Mr. Miller, the national contingency plan sets out how
cleanups are to be conducted. It includes an expectation that
institutional controls will be used to supplement engineering
controls as appropriate. In your experience, has that
expectation been borne out in the Superfund cleanups?
Mr. Miller. No. That is actually an area where there has
been quite a bit of difficulty. EPA has paid increasing amounts
of attention to institutional controls in recent years and has
developed some policy guidance on it. But it is an issue that
we struggle with, particularly at sites that are cleaned up
under removal authority. And it is an issue that is always
difficult at Federal facilities. Federal agencies routinely
resist imposition of these institutional controls at their
sites. And it is kind of a puzzling position to me because the
institutional controls really don't cost very much at all. It
is just creating a legally binding document and monitoring it,
compliance with it. But the Federal agencies have resisted our
efforts to impose it at a number of sites. We have recently had
some luck with the Department of Defense, has come around. And
they are happy to use a mechanism that we have in Colorado that
a lot of other states don't have at DOD facilities. But we are
continuing to get resistance from the land management agencies.
Mr. Green. The CERCLA as currently written prioritizes
treatment that significantly reduces the volume, toxicity, and
mobility of the contaminants over response actions that do not
have that effect. It also requires a cost-effectiveness
analysis of response actions, including the costs of operation
and maintenance for the entire period during which such
activities are required. Mr. Miller, in your experience, are
these statutory requirements consistently met?
Mr. Miller. It is a balancing act at every site.
Mr. Green. My experience with two sites in our area, the
U.S. Oil Recovery site has been frustrating because of the--it
is in Pasadena, Texas, in our district--because of the
responsible party has been very unwilling, in fact has
disappeared on us. So that has caused other problems.
Are these areas where we might want to conduct more
oversight? And do you think that sometimes just asking the
right question can result in improved performance?
Mr. Miller. It is an issue that varies from site to site. I
do think that, particularly with respect to the long-term
maintenance costs--in Colorado, we are looking at paying
roughly $8 million a year to operate water treatment plants at
two of our larger mining sites. And over time, that O&M cost is
going to eventually exceed the cost of the original remedy. So
this is an issue that the states actually sued EPA over when
the National Contingency Plan was promulgate in 1990 over the
cost-sharing provisions. EPA wrote a rule that interpreted the
statute to require the states to pay 100 percent of the
operation and maintenance. And it was the states' position that
the statute actually required a 90/10 cost split--90 percent
Federal, 10 percent state--for both the initial cost of the
cleanup as well as continued operation and maintenance. So
earlier today when I referred to changing the cost share
provisions, changing the allocation of O&M costs I think could
encourage EPA to pay more attention to remedies that would
minimize, really, the long-term costs of these sites.
Mr. Green. Thank you. I know I am almost out of time.
Mr. Chairman, I agree with Mr. Miller. There are existing
concerns over EPA's enforcement of Superfund, particularly in
light of our hearing yesterday in our Energy Committee on the
President's budget cuts to the Superfund. And I think it is our
subcommittee's responsibility to oversee the EPA actions.
Hopefully, the EPA must work with state and local governments
as closely as possible to weigh the long-term costs of the
remediated sites. But taking a heavy, heavy-handed approach
will only make the problem worse and open up Superfund to more
litigation, which obviously doesn't help us clean up the sites.
So I appreciate the time this morning.
Mr. Shimkus. The gentleman yields back the time. The chair
now recognizes chairman emeritus, Mr. Barton, for 5 minutes.
Mr. Barton. Mr. Chairman, I don't have any questions. I
will just make a general comment. These 3 bills to me look like
common-sense efforts to reform and improve CERCLA. And I know
that former Chairman Dingell seemed to have some pretty serious
reservations. But hopefully we can work through those and have
a good, open process in the markup and move the bills. I mean,
no Federal law was set in stone, and certainly the times have
changed and some of the imperfections in CERCLA need to be
changed. And I think this is good faith effort, these 3 bills,
to do that. So I hope that the committee, the subcommittee can
move forward in a bipartisan, open way to move these bills.
With that, I yield back or yield to you.
Mr. Shimkus. Gentleman yields back. Chair recognizes the
gentlelady from the State of Illinois, Ms. Schakowsky, for 5
minutes.
Ms. Schakowsky. Thank you, Mr. Chairman. Mr. Tonko asked if
I would sit here.
Mr. Shimkus. That is great.
Ms. Schakowsky. Mr. Duch, I want to thank you for being
here today. Your testimony really provided a picture of how
Superfund works in the real world to protect people and
communities from the risks and costs of contamination. It is so
important that any changes this committee considers to
Superfund builds on its success helping communities like yours
instead of undermining it. That is why I really am concerned
that the bills before us today actually undermine our ability
to help communities like yours. Although the EPA couldn't be
here, they did review the bills. And they tell us that the
bills will increase litigation, divert funds, and generally
delay needed cleanups.
So, Mr. Duch, how long has your town been fighting to clean
up the contamination at the Superfund site?
Mr. Duch. The spill that I spoke about earlier took place
in 1983. It was managed by the New Jersey Department of
Environmental Protection for the next 25 years. There was a
determination made by them in the late '80s that there was
really no further problem and no further concern. We were very
fortunate in 2008 that the U.S. EPA was handed the case by the
NJDEP. They came in. They have begun the cleanup. But my
concern is, we have now fingerprinted where our problem is, but
we need to clean up. And the only way we can clean up is if
there is continued funding for the EPA to do that. Right now,
they are doing the analysis phase to determine what is the best
way to clean up. They are monitoring wells, forty-six of them,
that have been drilled throughout this 600-parcel area. Those
monitoring wells are between 8 feet and 400 feet deep. So the
analysis is being done. But a determination needs to be made as
to the best way to clean up. There are a number of alternatives
that the EPA has discussed with us. They are all expensive. And
every other community in the country that has a Superfund site,
in particular, a site like this that is under residential
properties, is threatened. So we do need help.
Ms. Schakowsky. So this is your water supply for your town?
Mr. Duch. Our water supply is not impacted. The problem is
that there is a fairly high water table in this particular
area. So when the water table rises, the hexavalent chromium
can seep into basements. When it seeps into basements and it
dries, it crystallizes. And in that crystallized form, when it
becomes airborne dust, it becomes dangerous. So the sooner we
can get it out of the water table or treat it in the water
table, the sooner our people will be safe.
Ms. Schakowsky. So if the money for the cleanup were just
not available from the EPA, does your town have any other way
to get the site cleaned up?
Mr. Duch. Our community is--we are one of 70 towns in
Bergen County. We are a--on the socioeconomic scale, our people
are working class people. The city does not have that kind of a
budget, nor do we have the technical expertise that would allow
us to address this problem properly.
Ms. Schakowsky. So would you oppose changes to the
Superfund that have the potential to limit the funds available
for cleanups like yours or have the potential to significantly
delay any cleanup?
Mr. Duch. We certainly would oppose that. The sooner the
cleanup can take place the better. The less obstacles that are
placed in front of the EPA, the sooner we can move forward.
Ms. Schakowsky. Thank you very much.
Mr. Duch. Thank you.
Ms. Schakowsky. I wanted to ask Ms. Dillen, we have a local
issue--I don't know, we may disagree on that, Mr. Chairman. But
you probably know about the Badger Ferry that was recently
granted a 2-year permit to continue operating on Lake Michigan
in a settlement with the Environmental Protection Agency. This
has to do with coal ash being dumped right into the lake. And
every time it sails between Wisconsin and Michigan, the Badger
Ferry dumps 4 tons of coal ash into the lake. And each year
more than 500 tons of coal ash is dumped right from the ferry
into the lake. I wondered what--if you could share your
thoughts on the Badger Ferry settlement that would allow
another season for them to continue dumping.
Ms. Dillen. Well, I am not familiar with the details of the
settlement. But I certainly know about the issue. And it is one
of the notorious examples of what can happen when there isn't
proper regulation of coal ash. And I think it underscores what
my message has been to the subcommittee today, which is, please
don't take away the one backstop that we have to ensure that
EPA is forced to address this. And I think the settlement that
you point up suggests that the agency is not going to take the
action that is needed to address even the most notorious
problems like the Badger Ferry if it doesn't have a deadline.
Mr. Shimkus. Gentlelady's time expired. We appreciate the
first panel for being here and for your testimony. The
subcommittee stands in recess until Wednesday, May 22, at 10:15
a.m.
[The bills follow:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
[Whereupon, at 11:45 a.m., the subcommittee was adjourned.]
[Material submitted for inclusion in the record follows:]
Prepared statement of Hon. Henry A. Waxman
Today we begin to examine three legislative proposals
involving the Superfund program and hazardous and solid waste.
These bills cover an expansive number of topics--from how sites
are cleaned up, to who pays for what, to when citizens can go
to court over the decisions.
These are complex issues and changing the law could have
serious consequences. Legislating in this area is no small
undertaking.
That's why I want to thank the Chairman for agreeing to
hear from additional witnesses next Wednesday. We won't be able
to cover every issue, but it will be very helpful to hear
testimony from the Government Accountability Office and the
Congressional Research Service on Superfund and these
legislative proposals.
One bill we will consider today is couched as legislation
designed to repeal so-called ``excessive deadlines.'' Although
some may claim that the targeted review requirement will
require extensive resources and lead to a flurry of lawsuits,
the requirement has been in place for decades with no issue.
EPA has never found the review burden excessive, and only three
suits have ever been brought to enforce the deadline--all three
relate to the long overdue rulemaking on coal ash. The delays
in finalizing that rulemaking are bad for the environment and
are harming the beneficial reuse industry.
These cases do not suggest that the deadline is excessive--
instead, they suggest that it is necessary.
This is just one example of how the provisions before us
today may seem innocuous, or even helpful, on paper. But when
we examine EPA's experience implementing RCRA and Superfund
over the last 30-40 years, it becomes clear that they are
unnecessary at best, and at worst, a threat to the continued
success of this essential program.
Another small provision in the Federal and state
Partnership for Environmental Protect Act would allow
litigation over selected cleanup methods before the cleanup
occurs--adding significant costs and delays to the process. One
expert my staff spoke with called that change ``a hole so big
it could swallow all of Superfund.'' I don't believe any of my
colleagues want to see that happen.
These three bills present a lot of ground to cover. I look
forward to hearing from the witnesses today and when the
hearing reconvenes next week. And I hope that members of the
Subcommittee are given a full opportunity to understand these
bills before they are brought to markup.
I hope we are able to resist the temptation to take
legislative shortcuts, to move legislation before it is
adequately vetted and carefully considered. This Subcommittee
tried that in the last Congress and it resulted in legislative
failure after considerable confusion and wasted effort.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
----------
FEDERAL AND STATE PARTNERSHIP FOR ENVIRONMENTAL PROTECTION ACT OF 2013;
REDUCING EXCESSIVE DEADLINE OBLIGATIONS ACT OF 2013; AND FEDERAL
FACILITY ACCOUNTABILITY ACT OF 2013
----------
TUESDAY, MAY 22, 2013
House of Representatives,
Subcommittee on Environment and the Economy
Committee on Energy and Commerce,
Washington, DC.
The subcommittee met, pursuant to call, at 10:17 a.m., in
room 2322 of the Rayburn House Office Building, Hon. John
Shimkus (chairman of the subcommittee) presiding.
Members present: Representatives Shimkus, Gingrey, Pitts,
Latta, McKinley, Johnson, Tonko, Green, Capps, McNerney,
Dingell, and Waxman (ex officio).
Staff present: Nick Abraham, Legislative Clerk; David
McCarthy, Chief Counsel, Environment/Economy; Tina Richards,
Counsel; Environment; Chris Sarley, Policy Coordinator,
Environment and Economy; Jacqueline Cohen, Democratic Senior
Counsel; Greg Dotson, Democratic Staff Director, Energy and the
Environment; and Caitlin Haberman, Democratic Policy Analyst.
Mr. Shimkus. We are going to call the hearing back to
order. This is a continuation of the hearing that started last
week, and so on the second panel we have Mr. David Bearden, who
is a Specialist in Environmental Policy from the Congressional
Research Service, and also joined by Mr. David Trimble, who is
the Director of Natural Resources and Environment from the
Government Accountability Office.
Gentlemen, your full statements have already been submitted
for the record. You have 5 minutes. As you can see, I don't
think we are really pressed for anything immediately, so we
will be generous. It really gives us a chance to understand
this program and as follow-up questions, so with that, I would
like to recognize Mr. Bearden for 5 minutes. And let us make
sure the microphone is on and it gets pulled close to you.
STATEMENTS OF DAVID M. BEARDEN, SPECIALIST IN ENVIRONMENTAL
POLICY FOR THE CONGRESSIONAL RESEARCH SERVICE; AND DAVID
TRIMBLE, DIRECTOR OF NATURAL RESOURCES AND ENVIRONMENT,
GOVERNMENT ACCOUNTABILITY OFFICE
STATEMENT OF DAVID BEARDEN
Mr. Bearden. Chairman Shimkus, Ranking Member Tonko and
members of the subcommittee, my name is David Bearden and I am
a Specialist in Environmental Policy for the Congressional
Research Service. Thank you for inviting me to testify on
behalf of CRS on legislation that would amend the Comprehensive
Environmental Response, Compensation and Liability Act to
address various aspects of the federal and state roles in the
cleanup of environmental contamination and the applicability of
state clean up requirements at both current and former federal
facilities. In brief, the primary areas that the legislation
would address include the designation of sites on the National
Priorities List; credits toward state matching funds
requirements at non-federal facilities; the selection of
cleanup actions and opportunities for judicial review of such
actions; the establishment of financial responsibility
requirements; and the waiver of sovereign immunity at both
current and former federal facilities.
In serving the U.S. Congress on a non-partisan and
objective basis, CRS takes no position on this legislation but
has been asked by the subcommittee to identify the federal and
state roles under CERCLA in existing law and the aspects of
these roles that the legislation would address. The statements
presented in this testimony are based on a preliminary analysis
of the legislation within the time available. CRS remains
available to assist the subcommittee in its consideration of
this legislation, related issues and potential concerns among
affected stakeholders.
I will now just provide a brief summary of the existing
framework of federal and state roles under CERCLA and then a
summary of the main provisions of all three bills.
Congress enacted CERCLA in 1980 in the 96th Congress in
response to a growing desire for the federal government to
pursue the cleanup of the Nation's most hazardous sites, to
protect human health and the environment. Under the Superfund
program, the Environmental Protection Agency, EPA, may pursue
cleanup and enforcement actions to respond to actual or
threatened releases of hazardous substances into the
environment. CERCLA established a broad liability scheme that
holds past and current owners and operators of facilities,
generators of wastes, and transporters of wastes who selected a
facility for disposal, liable for cleanup costs, natural
resource damages, and the costs of federal public health
studies that are conducted by the Agency for Toxic Substances
and Disease Registry. In conjunction with this liability
scheme, CERCLA directs EPA to establish requirements for
private entities to demonstrate their financial capability to
satisfy cleanup liability if contamination were to occur, but
EPA has not yet promulgated such requirements.
The Superfund Amendments and Reauthorization Act of 1986 in
the 99th Congress amended CERCLA to address the applicability
of the statute and state law to federal facilities, and amended
various cleanup, liability and enforcement provisions of the
statute. Several subsequent laws also have amended CERCLA for
specific purposes. With respect to federal and state roles,
which is the primary area of focus of the three bills, the
Small Business Liability Relief and Brownfields Revitalization
Act of 2002, enacted in the 107th Congress, amended CERCLA to
authorize federal grants to assist states and local governments
for the cleanup of brownfield sites that are not addressed
under the Superfund program, to give substantial deference to
the states in EPA's designation of sites on the National
Priorities List, and to limit the use of federal enforcement
authorities under CERCLA to pursue the cleanup of a site, if a
state already is pursuing the cleanup under its own law.
CERCLA directs EPA to maintain the National Priorities List
to prioritize sites for federal response actions. Under CERCLA,
federal response actions may include interim removal actions,
as they are called, to address more immediate risks, and
broader remedial actions to address long-term risks. Remedial
actions also differ in that the use of federal Superfund
appropriations is conditional upon the state agreeing to share
the costs with the federal government, whereas removal actions
may be fully federally funded with Superfund appropriations.
Under federal regulation, a site also must be on the
National Priorities List as an additional condition for EPA's
use of federal Superfund appropriations to finance the remedial
actions. The cleanup of Superfund sites that are financed with
private funds from the potentially responsible parties are not
subject to this condition, and therefore do not necessarily
require listing on the NPL to perform the remedial actions that
are not funded with federal tax dollars. EPA may fund removal
actions with federal Superfund appropriations to address
immediate hazards, regardless of whether a site is on the
National Priorities List.
The response authorities of CERCLA also are available to
federal agencies for the performance of the cleanup of federal
facilities that are funded with separate appropriations apart
from Superfund, and these separate appropriations are allocated
directly to the agencies that administer those facilities. The
Department of Defense and the Department of Energy administer
the vast majority of federal facilities where cleanup is
performed under the authorities of CERCLA and other relevant
statutes.
EPA and the states still play a role, however, in
overseeing and enforcing the cleanup of federal facilities. EPA
leads the oversight of the cleanup of federal facilities that
are on the National Priorities List but still in conjunction
with the states, and the states primarily are responsible for
leading the oversight of the cleanup of federal facilities that
are not on the National Priorities List where EPA does not have
a similarly prominent role.
CERCLA authorizes various mechanisms for the states and the
public to participate in federal cleanup decisions. However,
EPA, or the lead federal agency at a federal facility,
generally is responsible for making the federal decisions.
Those decisions, though, still may involve the application of
state cleanup requirements if they may be more stringent than
the federal requirement.
CERCLA authorizes citizen suits, including suits by states,
to challenge federal decisions regarding response actions, both
remediation and removal, but limits the timing of judicial
review until after the action is taken. CERCLA also
specifically authorizes states to bring action in U.S. district
court to challenge the selection of remedial actions at a
federal facility within its borders.
Conditions for the use of federal Superfund appropriations
also can be a factor in federal cleanup decisions that are made
in consultation with the states at non-federal facilities. The
use of federal Superfund appropriations to finance remedial
actions generally is conditional upon the state agreeing to pay
10 percent of the capital costs, with the federal government
paying 90 percent, and generally 100 percent of the costs of
long-term operation and maintenance in maintaining any
institutional controls that might be necessary over the long
term. There is an exception for the treatment of groundwater
under which the federal government may pay the full costs of
operation and maintenance for the first 10 years of the remedy
after which point the state would assume its responsibility for
the 100 percent costs of the operation and maintenance. These
state matching funds requirements do not apply to the use of
federal Superfund appropriations for removal actions, nor to
either remedial or removal actions that are carried out at
federal facilities and funded fully by the federal government
separately with appropriations to those agencies that
administer those facilities.
The legislation that is before the committee, the three
bills collectively, would expand the role of the states in the
cleanup of contaminated sites under CERCLA beyond the scope of
the most recent amendments I mentioned earlier that were
enacted in 2002 in the 107th Congress. The following points
that I have outlined briefly identify how each bill would alter
the state role in comparison to existing law.
The first bill, the Federal and state Partnership for
Environmental Protection Act of 2013, would make the following
changes to existing law. It would expand consultation with
affected states to include not only remedial actions but also
removal actions, including consultation with state and local
officials at federal facilities. Another provision would expand
the categories of non-federal funds that states could apply as
credits toward meeting matching funds requirements to include
state oversight costs and in-kind expenditures. In-kind
expenditures essentially are non-monetary contributions that
may offset some of the costs. Another provision would codify in
statute EPA's general practice of obtaining the concurrence of
the Governor of the state in which a site is located in making
a decision to list a site on the National Priorities List and
would give greater deference to state priorities in the listing
process overall. It would also broaden the opportunity for
judicial review of a remedial action, if a state were to object
to the selection of the remedial action in writing.
The next bill, the Reducing Excessive Deadline Obligations
Act of 2013, has two primary provisions. The first provision
would bar federal financial responsibility requirements that
EPA may promulgate in the future from preempting state
financial responsibility requirements that are in place on the
effective date of any federal requirements that EPA may
promulgate. The other provision is related to the Solid Waste
Disposal Act and not CERCLA, and it would amend the Solid Waste
Disposal Act to require EPA to review and revise regulations
promulgated under that statute as determined appropriate by the
agency, rather than under existing law requiring review and
revision as necessary every 3 years.
The last bill, the Federal Facility Accountability Act of
2013, as its title suggests, would focus on federal facilities,
and in two respects would expand the waiver of sovereign
immunity at federal facilities to include not only current but
also former federal facilities, to encompass the entire phase
of the cleanup process for both remedial and removal actions,
and to clarify the extent to which substantive and procedural
requirements of state law apply to federal facilities
regardless of whether a federal facility is on the NPL, the
National Priorities List. The other respect of the bill would
authorize EPA to review the actions taken by other federal
departments and agencies under CERCLA at federal facilities
regardless of whether a facility is on the National Priorities
List, and also would allow states to request such a review by
EPA to ensure consistency with EPA guidelines, rules,
regulations or criteria.
That concludes the remarks of my prepared statement, and
thank you for the opportunity to appear before the subcommittee
today, and I would be happy to address any questions you may
have.
[The prepared statement of Mr. Bearden follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Shimkus. Thank you, Mr. Bearden.
And now I would like to recognize Mr. David Trimble, who is
from the Government Accountability Office. Sir, welcome. Same
thing, your full statement is in the record. You have 5
minutes. Obviously, I was very generous because we are here to
get a good background on these policies and pieces of
legislation, so you are recognized.
STATEMENT OF DAVID TRIMBLE
Mr. Trimble. Thank you. Chairman Shimkus, Ranking Member
Tonko and members of the subcommittee, my testimony today
focuses on GAO's work on four key issues: the role of the
states in cleaning up hazardous waste sites, federal
liabilities in management of sites listed on the NPL, the
National Priorities List, commonly referred to as Superfund
sites, the challenges and liabilities associated with
contaminated hardrock mining operations, and litigation under
environmental statutes including CERCLA, the statute governing
the Superfund program.
First, states play a critical role in cleaning up sites
listed on the NPL and severely contaminated sites that are not
listed on the NPL. After a hazardous site is identified, EPA
often working with a state will evaluate the risks to the
environment and to human health and assign a hazard ranking
score. Sites posing hazards above a certain threshold are
eligible for listing on the NPL. Not all sites with serious
contamination and a high score are placed on the NPL, and the
EPA policy is to not list such sites without approval from the
relevant state. Additionally, EPA cannot use money from
Superfund for long-term remediation activities unless the state
has also agreed to pay at least 10 percent of these costs. The
cleanup of sites not on the NPL can be managed by EPA as a
Superfund alternative site or by the states and other entities
under other cleanup authorities. In April, we reported that 42
percent of sites assessed with contamination severe enough to
be eligible for listing on the NPL were being managed as
Superfund sites or Superfund alternative sites. The remaining
58 percent were managed by other cleanup programs. Notably,
states managed the cleanup of more Superfund-caliber waste
sites outside of the Superfund program than EPA oversees in the
Superfund program.
Second, federal agencies, primarily DOD, have substantial
cleanup and financial liabilities at NPL sites. Specifically,
DOD is responsible for 80 percent of the 156 federal Superfund
sites. The cost to clean up these sites represents a
significant financial liability for the government. In
addition, in 2010, we found that DOD's refusal to sign a
required interagency agreement with EPA on how these cleanups
should proceed had complicated cleanup at 11 DOD NPL sites. As
a result of our work, DOD has decreased this number to two
sites. Let me note, however, that these sites are at bases with
large military and civilian populations. That report also
recommended that EPA seek to increase its authority to hasten
cleanups by other federal agencies, but no changes have been
made to the relevant Executive Order.
Third, the federal government faces significant financial
challenges and liabilities associated with hardrock mining
operations. From 1997 to 2008, the federal government spent
over $2.6 billion to reclaim abandoned hardrock mines on
federal, private and Indian lands with the EPA paying $2.2
billion of this amount. In 2008, GAO estimated that there were
at least 33,000 abandoned hardrock mine sites with
environmental problems. One factor that contributes to
reclamation costs on federal lands disturbed by mining
operations is inadequate financial assurances required by the
Bureau of Land Management. These assurances are imposed on new
mining operations and are used to reclaim a site if the
operator fails to adequately do so. In 2012, BLM reported
implementing our recommendation to improve the sufficiency of
these assurances.
Finally, EPA often faces litigation over its regulations
and other actions. Companies, interest groups, states and
citizens can sue EPA under CERCLA and other environmental
statutes, and these suits can be costly and time-consuming.
Such litigation includes citizen suits to compel EPA to take
action when it does not meet deadlines, challenges to
regulations and permitting decisions, or lawsuits by
potentially responsible parties at hazardous waste sites. In
2011, we reviewed litigation associated with 10 environmental
statutes and found such cases averaged about 155 per year, the
majority of this litigation related to the Clean Air Act.
Overall, trade associations and private companies comprised 48
percent of the litigants followed by environmental groups at 30
percent, and non-federal and other parties made up the
remainder. Superfund cases represented about 2 percent of the
total cases in our study. This is consistent with our 2009
report on Superfund litigation, which found that litigation had
decreased by almost half from fiscal years 1994 through 2007.
Regarding the cost of this litigation, we found that the
Department of Justice spent about $3.3 million per year
defending EPA. Additionally, payments made to the prevailing
parties in these cases to cover attorney fees and court costs
averaged about $2.1 million per year, with about three-quarters
of these payments going to environmental and citizen groups.
This completes my statement. I would be pleased to respond
to any questions.
[The prepared statement of Mr. Trimble follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Shimkus. Thank you, and now I would like to recognize
myself for 5 minutes for initial questions.
Before I go on to the prepared questions, Mr. Bearden, I
was involved with the, I think you called it the Small Business
Liability Relief Act mentioned in the opening statement. That
was one of the pieces of legislation that I helped originally
cosponsor to get to small businesses, the Main Street stores,
out of this litigation trap from the potential responsible
parties who then would go after, and these folks were de
minimis parties to the suit, and it was a great victory, and I
think it helped keep the small actors out of the litigation. So
thanks for mentioning that. I did mention it last week but I
didn't remember the name, couldn't remember the year it passed
and all that other stuff.
Mr. Bearden, can you explain the preference in CERCLA and
environmental law generally for non-preemption of state laws,
and then tell us if the REDO Act would further that objective.
Mr. Bearden. Well, in general, there is a provision in
existing law and CERCLA that doesn't allow preemption of state
laws, or prevent state laws, and states are free, of course, to
enact their own cleanup laws, and many have; this is sort of a
general premise with respect to the bill that would
specifically add preemption in the circumstance of a financial
responsibility requirement. So in that case, when EPA
promulgates financial responsibility requirements and then in
applying those requirements, it would not be allowed to preempt
a state requirement that is in place on the effective date.
Mr. Shimkus. Would the Federal Facilities Accountability
Act also further that objective?
Mr. Bearden. Could you restate the question, please?
Mr. Shimkus. Would the Federal Facilities Accountability
Act also further that objective?
Mr. Bearden. Oh, the objective of preemption?
Mr. Shimkus. Correct.
Mr. Bearden. It expands the waiver of sovereign immunity to
apply state substantive and procedural requirements to federal
facilities, so it is similar to that objective in terms of
allowing state law to apply.
Mr. Shimkus. Thank you. In your opinion, are there aspects
of CERCLA that could be improved or ``modernized'', in
particularly the waiver of sovereign immunity, and do the bills
the subcommittee is considering today take steps toward making
some improvements to the existing statute?
Mr. Bearden. Well, CRS takes no position or opinion about
the legislation, but what I could say in response to your
question is that what the bills would do are similar in the
overall policy vein of the 2002 amendments that would amend the
law in ways to be consistent with a greater number of state
laws that are in place and to address some longstanding issues
about whether the waiver of sovereign immunity applies to both
current and former federal facilities, as those issues have
lingered for a number of years.
Mr. Shimkus. So those are possible positive provisions. Is
there anything in the legislation that could be positive that
we may have left out that could do the same thing and move us
forward?
Mr. Bearden. Well, in terms of positive, that of course
would be a judgment call, and again, CRS would take no position
on it, but the types of issues that are addressed in the bills
are numerous longstanding issues that have been concerns of the
states and other stakeholders about the federal and state
roles, so they are not new issues; they are continuing issues
that have been addressed by Congress previously in different
ways.
Mr. Shimkus. Thank you. Mr. Trimble, your testimony said as
a matter of policy, EPA seeks concurrence from state governors
or environmental agency heads before proposing a site on the
National Priorities List. If it is a matter of established EPA
policy, do you see a problem with codifying the policy in the
statute?
Mr. Trimble. We have not done specific work on that. I
think the questions that would have to be looked at whether
there are specific cases where EPA might still need the
authority to list a site over state objection, and I am
thinking off the top of my head, I am thinking key issues may
be on sites that sort of cross borders between states so there
could be a dispute between states or could be perhaps a
situation where the state is somehow responsible for the
pollution, but I am just----
Mr. Shimkus. But you don't know of any particular example
that we could site right now? I understand that concern, but I
am just wondering if there is an actual case.
Mr. Trimble. I don't know, sir.
Mr. Shimkus. CERCLA and the regulations implementing CERCLA
already provides the states with limited consulting role before
remedy selection. Do you see a problem with amending the
statute to codify the regulations and assure that states are
consulted during selection of the remedy?
Mr. Trimble. Again, we are not taking a position on the
legislation. We have not done any work on this issue of how
effective the state consultation mechanisms are within the
Superfund program. I think it is an interesting question, but
that is not something that we have delved into in our past body
of work.
Mr. Shimkus. In testimony last week, it was interesting,
the point being, there was some desire to ensure that they have
consultation early in the remedy because their complaint was,
we have the costs at the end, we have the operational and
maintenance costs at the end, and so maybe we should have some
role in saying how the remedy or at least give our opinion
because we are going to be on the hook for the longevity of the
program.
Mr. Trimble. Yes, and I think again, because of the
financial requirements for the state to kick in 10 percent on
the remedial costs and also to sign up for the lifetime costs
of the operation and maintenance, there is a hook for the
state, again, but we have not looked at whether that gives them
enough leverage in the process to protect their interests. I
think one of the questions that came up last week, and it is to
your point, is, you know, how effective is the cost-benefit
analysis EPA is doing when they are choosing their path forward
and does that bias toward short upfront costs and higher long-
term costs or not, but that is a good question but it is not
something we have looked at.
Mr. Shimkus. Great. Thank you. The chair now recognizes the
ranking member of the subcommittee, Mr. Tonko, for 5 minutes.
Mr. Tonko. Thank you. Thank you very much. I thank the
chair for reconvening our hearing today. We may not cover every
issue, but as our additional witnesses appear, they help
broaden and improve the record, so thank you very much.
The hearing last week gave me reservations about the bills
under consideration. Not a single witness gave unqualified
support to the bills we are examining today. In fact, we heard
testimony that one of the bills we are considering would
increase litigation and delay the cleanup of contaminated
sites. One of the majority's witnesses explained that Superfund
now contains a bar on pre-enforcement judicial review. This
provision is important because it prevents litigation from
delaying needed actions to address releases of hazardous
substances that threaten human health and the environment.
So Mr. Bearden, one of the bills we are considering today
would reverse this longstanding policy, would it not?
Mr. Bearden. Yes, with respect to states filing objections
to the selection of a remedy.
Mr. Tonko. If enacted, a responsible party or anyone else,
for that matter, could go to court and sue EPA before a cleanup
even begins. Is that correct?
Mr. Bearden. If a state were to file a written objection
and someone were to have standing under that provision, yes.
Mr. Tonko. And that would be before the cleanup begins?
Mr. Bearden. The way the provision is worded, the trigger
of the timing is when the state files its written objection.
Mr. Tonko. OK. That leg could delay then the cleanup of
contaminated sites, could it not?
Mr. Bearden. That would have to be demonstrated over time.
Whether it would delay it would depend on the nature of the
individual suit.
Mr. Tonko. We also received testimony last week that a
responsible party could have a financial incentive to go to
court to delay cleanup and argue for a less protective cleanup
remedy. Do you agree with that assessment?
Mr. Bearden. That would involve speculation, and what a
party may be motivated by, CRS cannot comment on that, but
again, anyone who may have standing under that provision once
the state files its objection could at least pursue the matter.
Mr. Tonko. Which would affect the time element. The end
result could be that judges decide how to clean up Superfund
sites, and none of the witnesses last week seemed to think that
that would be a good scenario.
Mr. Trimble, we have seen the problems with litigation,
haven't we? Has litigation been a problem under Superfund in
the past?
Mr. Trimble. As we have reported, I think initially there
was a heavy amount of litigation but slowed over time as the
court settled some legal issues and the number of sites being
added slowed down, and the EPA increased its reliance on
settlement agreements out of court. The number of those cases
has dramatically gone down. Right now, I believe it's 2 to 5
percent of all litigation cases that we looked at in our list,
not as large as you would think it would be, given the
universe.
Mr. Tonko. And can you give us a sense of the costs of
those litigations?
Mr. Trimble. Yes. There are a couple of costs. One is the
Department of Justice costs to defend EPA, and the numbers we
have are for about 10 environmental statutes, and I think their
costs were about $3 million per year, if I am remembering
correctly, and that payments were about $2 million pear year.
Mr. Tonko. And what have the recent trends been in
Superfund litigation over the recent years?
Mr. Trimble. Well, in our report from a couple years ago,
we found that it had decreased, I believe, by over half.
Mr. Tonko. And that is in duration and in cost?
Mr. Trimble. That was just number of cases.
Mr. Tonko. OK. And can you speak to the complexity of those
cases?
Mr. Trimble. No, I don't have any information on the
complexity in terms of the trends of those.
Mr. Tonko. Well, that certainly is a positive trend, but I
am concerned that it could be reversed by lifting the bar on
pre-enforcement judicial review. Is that a legitimate concern,
in your opinion?
Mr. Trimble. Well, again, we don't opine on the pending
bills, but clearly as sort of the rules of the road have
settled, the litigation has declined over time in the program.
Mr. Tonko. Mr. Chair, I hope we can give this the
bipartisan attention it deserves. No one, in my opinion, would
be well served if we end up moving legislation that increases
litigation and therefore would cause delays in the cleanup of
contaminated sites, which would then really speak to the
overall mission statement and soulfulness of the legislation.
So with that, Mr. Chair, I yield back.
Mr. Shimkus. The gentleman yields back his time, and I want
to assure him that as conservative Republicans, additional
litigation is something that we are not interested in. So I
think there is some language that could be added to ensure that
that does not happen.
The chair now recognizes the gentleman from Ohio, Mr.
Latta, for 5 minutes.
Mr. Latta. Thank you, Mr. Chairman, and gentlemen, thanks
very much for your testimony today.
Mr. Trimble, if I could start my questions with you. In the
1990s, GAO reported that within the EPA's cleanup budget for
CERCLA, less than 50 cents of the dollar was spent on dirt-
moving cleanup versus oversight and administrative costs. Is
that still the case?
Mr. Trimble. We have not done recent work on taking apart
their costs for the recent cleanup so I am not sure what the
ratio is. I know there is a lot of work, I am sure still even
today, in terms of investigation and assessment as opposed to
final construction.
Mr. Latta. Well, I guess when you say that you haven't
really been able to take it apart, is there a way that you
could get a current amount?
Mr. Trimble. It is not something we readily have. We would
have to do a review on that.
Mr. Latta. If you could provide that, I think the Committee
would like to know what that ratio is now because if it is
still at that 50/50--because I know of sites out there that
really needed cleaned up, and at 50 cents on the dollar, that
is not helping those sites.
If I could go on then, it seems also that many states have
developed constructive working relationships with the
Department of Defense, particularly utilizing the Defense-state
Memorandum of Agreement. Are you familiar with the general
working relationship between other federal land managers and
states on non-NPL sites?
Mr. Trimble. I think we have done some work. I am
personally not that familiar with it. I know we had done work
on the cleanup of mines, so the relationship with the EPA and
BLM, for example, and we have done work in that area.
Mr. Latta. Let me ask this: is there a distinction between
the relationship between DOD and DOE may have with the states
versus the federal land managers, for example?
Mr. Trimble. I am not familiar with it. Again, we have not
looked into the relationship between states and DOD or states
and EPA, for that matter. Regarding DOD, we have reported on
difficulties where DOD has refused to sign interagency
agreements with EPA governing the cleanup of NPL sites.
Mr. Latta. You say that DOD has not signed. Is there a
reason for that?
Mr. Trimble. Not that we can understand. This is an ongoing
issue. In our report from a couple years ago, we had identified
11 sites where they had refused to sign the agreement, which is
required under CERCLA. After our report, they took action, and
now there are only two sites. One of these is Tindall Air Force
Base, and even in that situation with Tindall, EPA has issued a
RCRA order, which DOD has also not complied with. So there are
still letters going back and forth regarding the matter.
Regarding the RCRA matter at DOJ, DOD objected to EPA issuing
the order. DOJ upheld EPA's authority to issue it, and we don't
have any ongoing work on this, we are just following the issue
because it is something we have done work in the past on, but
it is a significant issue in terms of hampering the ability of
the EPA to oversee the effectiveness of the cleanup.
Mr. Latta. Thank you.
Mr. Bearden, if I could ask you quickly, can you explain
the state cost share requirement under CERCLA and maybe give us
some insight regarding why states are concerned with the EPA
selecting the remedies that focus on short-term containment
rather than long-term stewardship?
Mr. Bearden. The federal-state cost sharing proportion, as
outlined in my prepared statement, is generally 90 percent
share of the federal government for the capital costs of the
remedial action, 10 percent shared by the state, and again, 100
percent of operation and maintenance with the exception of
treatment of groundwater. So for containment methods that may
be a concern for the state in terms of being responsible for
100 percent of the long-term operation and maintenance, for
example, if there is a waste cap that has to be maintained for
many years, if not decades, the state would be fully
responsible for those costs under existing law.
Mr. Latta. Let me just follow up with that. Would a change
in the cost share provision in CERCLA address these state
concerns?
Mr. Bearden. If the cost share provision were changed to
have the state bear less than 100 percent, then that would
increase the necessity for federal resources and then it may
affect decisions that are made. The requirement in existing law
is for EPA to consider short- and long-term cost-effectiveness
in assessing the selection of the remedy, so there is a
statutory requirement to consider cost-effectiveness.
Mr. Latta. OK. And could you also explain how the criteria
for selecting remedial action may be relevant, and would they
also need to be addressed?
Mr. Bearden. I am not sure if I understand your question,
sir.
Mr. Latta. Well, in explaining the criteria for selecting
remedial action.
Mr. Bearden. The criteria for selecting remedial action
under existing law are that there be applicable, relevant and
appropriate requirements. There is a whole host of criteria in
statute and regulation on determining what is applicable,
relevant and appropriate at a site. Generally, a state
requirement can be applied as well if it is more stringent than
the federal requirement. But then again, those criteria may
allow for exclusions of some standards under those criteria.
Mr. Latta. Just briefly, if I may, Mr. Chairman, I see my
time is expired, but would also need to be addressed, do you
think, those remedial actions if we are looking at that? Should
those actions be addressed out there?
Mr. Bearden. Well, if one is looking at the federal and
state roles in making those decisions and one is concerned
about who is sharing the cost, one would need to consider the
existing criteria under which those decisions would be made.
Mr. Latta. Thank you. Mr. Chairman, my time is expired and
I yield back. Thank you very much.
Mr. Shimkus. The gentleman yields back his time. The chair
now recognizes the chairman emeritus of the committee, Mr.
Dingell, for 5 minutes.
Mr. Dingell. Mr. Chairman, I thank you for your courtesy
and I commend you for holding this hearing. I want to begin
with congratulations to Mr. Bearden and Mr. Trimble. You have
given good testimony this morning, and your agencies have been
agencies that this committee has looked to most urgently for
your help in times past as well as today. These questions are
for Mr. Trimble, and I am hopeful to that the degree you can
you will answer yes or no.
Relating to the amendments to Section 108 of CERCLA, can
you tell the subcommittee how many states have promulgated
financial responsibility requirements?
Mr. Trimble. I do not know the answer.
Mr. Dingell. Could you check and submit that?
Mr. Trimble. I can check to see if we have that.
Mr. Dingell. And perhaps you would want to make a comment
on that, Mr. Trimble, but I assume you will want to do that for
the record, or rather Mr. Bearden.
What are the amounts set in each state and for what classes
of facilities? I assume that is a matter that you will have to
submit for the record also.
Now, the next question: does anything prevent a state from
obtaining funding from fees, taxes or other sources of revenue
to clean up toxic waste sites in the respective states and thus
have total control over the remedy selected or removal action
taken? Yes or no. This is to Mr. Trimble.
Mr. Trimble. Not to my knowledge.
Mr. Dingell. What does that mean?
Mr. Trimble. No.
Mr. Dingell. Next question, if you please, Mr. Trimble.
Section 113(h) provides new opportunity for lawsuits where a
state simply writes a letter objecting to a remedy selected by
the President after such letter is posted by the state. Would
this new provision also allow the responsible party who
polluted the site in the first place to litigate and to
challenge the remedy? Yes or no.
Mr. Trimble. I am not a lawyer, but I would think it would.
Mr. Dingell. You would think it would. Do you have a
comment on that, Mr. Bearden?
Mr. Bearden. I addressed that question, a similar question,
earlier. Assuming someone would have standing under that
provision, the trigger would be, as you mentioned, the state
filing a written objection to the selection of the remedy.
Mr. Dingell. Thank you. Now, this is to Mr. Trimble. Mr.
Trimble, would this provision allow an environmental group to
also challenge the remedy if they could get a state to write
such a letter? Yes or no.
Mr. Trimble. Yes.
Mr. Dingell. And I would assume that almost anybody who
could involve themselves in this could enter the litigation of
the question, could they not?
Mr. Trimble. I would defer to Mr. Bearden but I----
Mr. Dingell. Please, Mr. Trimble.
Mr. Trimble. I would assume so, but again, we have not done
audit work in this area but my understanding would be that is
the case.
Mr. Dingell. Mr. Bearden?
Mr. Bearden. As with any litigation, it would depend on
whether someone has standing, and a judge would have to decide
that based on the circumstances.
Mr. Dingell. We would significantly increase the number of
persons who have standing by this provision, would we not?
Mr. Bearden. It does broaden the opportunity for judicial
review.
Mr. Dingell. Now, what happens to the citizens and the
surrounding communities that is being exposed to the hazardous
substance and hazardous conditions or to communities and
persons in the communities who wish the site to be redeveloped
to create jobs while the remedy decision is litigated in the
federal courts? They just have to sit and grind their teeth,
don't they? Yes or no.
Mr. Trimble. I don't know about the grinding of the teeth
but----
Mr. Dingell. I know if I were, I would. This has a
significant chance of increasing the number of litigants and
the amount of time that is involved in concluding the cleanup
of these sites, does it not?
Mr. Trimble. I would suspect that the delay would add to
the time, yes.
Mr. Dingell. All right. Mr. Chairman, as I stated last
Friday, I do not see the factual record in this matter
justifying significant changes to the existing law here. The
changes to Section 113(h) expand the opportunities for
litigation, meaning communities would have to live longer
without a cleanup remedy. Section 121(f) of current law already
details requirements for substantial and meaningful involvement
by each state in initiation, development and selection of
remedial actions. Then there is an amendment to Section 108. In
this section, the Congress wanted to EPA to establish financial
responsibility requirements for various classes of facilities
so that they could maintain evidence of financial
responsibility consistent with the degree and the duration of
the risk associated with the production, transportation,
treatment, storage or disposal of hazardous substances. The
Agency has been dilatory in implementing this provision.
However, instead of calling the EPA to task for failing to act,
the legislation here seems to have a goal to eliminate the one
provision that was imposing a mandatory duty on EPA to initiate
the action. I feel with regret that the amendments appear to be
solutions in search of a problem, and I hope that as we
continue our discussion of these matters and our evaluation of
these matters, it will be possible to address the concerns that
I have expressed, and I thank you for letting me run over time.
Mr. Shimkus. And I thank the gentleman. The chair now
recognizes the vice chairman of the subcommittee, Mr. Gingrey,
for 5 minutes.
Mr. Gingrey. I thank the chairman for yielding, and Mr.
Trimble, I will address my first question to you. In an October
2009 report on formerly used defense sites--I think that's GAO
report 1046--GAO found that the Army Corps has not consistently
conducted CERCLA 5-year reviews to assure continued
protectiveness of remedies on sites where the chosen remedy
does not allow for unrestricted use and unrestricted exposure.
So did GAO find that the Corps routinely complies with state
land-use control and environmental covenant requirements for
such sites?
Mr. Trimble. I do not recall from that report if it got
into the details of where there was noncompliance of state-
specific requirements. The finding was, if you go through
remedial action and you clean up a site and you say your
construction is complete and you are entering the operation and
maintenance phase, at that point you have to monitor it every 5
years to make sure it is still in good shape. What that review
found was that for the formerly used defense sites, the Army
Corps was not doing a good job at monitoring those sites to
make sure that everything was still as it should be or if new
contamination had emerged or new remedies would have to be put
in place. Now, the basis for how it could have gone off the
rails might have been state requirements versus federal
requirements, and I don't know off the top of my head if that
report got into that level of detail.
Mr. Gingrey. Would that be true for commercial sites as
well?
Mr. Trimble. The 5-year requirement would be there but who
would be doing it would be different.
Mr. Gingrey. But the 5-year requirement is there.
Mr. Bearden, we also understand that there are EPA
regulations pertaining to consultations with the states
regarding remedy selection, and we understand that the statute
already requires consultation at certain points in the process.
Do you think that codifying that regulatory practice in statute
would be a bad thing?
Mr. Bearden. Well, there are many instances where Congress
chooses to codify a regulatory requirement to elevate it in
statute, and that is a policy decision of the Congress.
Mr. Gingrey. Well, wouldn't codifying the regulations
regarding consultation regarding remedy selection ensure
consistency among all the EPA regions and ensure that other
federal agencies also consult with states when selecting a
remedy?
Mr. Bearden. Well, the regulatory requirements already
apply to all regions and to other federal agencies who
implement a national contingency plan, which are the
regulations to which you are referring. Whether in practice
they implement them consistently may be a question, but they
already are required to follow those regulations.
Mr. Gingrey. Well, the question was, wouldn't codifying the
regulations make this work better and more consistently?
Mr. Bearden. It would elevate it as a statutory
requirement. It already is a requirement. There may be
questions of application on a consistent basis.
Mr. Gingrey. Well, that is my whole point. CERCLA
specifically requires consultation with the states before
selecting a remedy. The Federal-state Partnership for
Environmental Protection Act would amend the timing of the
consultation to ensure that states are consulted during the
process of selecting a remedy. What is your opinion about
changing the timing for the consultation?
Mr. Bearden. Well, CRS would make no opinion on any
amendments, but in terms of timing, that difference would be in
current law, it is in determining the remedy, and that may be
interpreted as the point at which you are selecting as opposed
to earlier in the process before a determination is made, so
the bill would expand the time frame to an earlier stage of the
process in statute.
Mr. Gingrey. Mr. Chairman, I see I have got about 45
seconds, if anyone on this side, or do you want me to yield
back to you.
Mr. Shimkus. Just yield back.
Mr. Gingrey. I will yield back.
Mr. Shimkus. The gentleman yields back. The chair now
recognizes the gentleman from California, Mr. McNerney, for 5
minutes.
Mr. McNerney. Thank you, Mr. Chairman, for holding this
follow-up hearing.
Mr. Bearden, in your testimony you stated that the states
have input into the designation of the NPLs. Can the EPA list
sites on the NPL without state concurrence or cooperation?
Mr. Bearden. EPA has the statutory authority to list a site
without state concurrence. I don't know of an example in which
that has occurred. The amendments in 2002 address that very
issue that limited EPA's authority to list a site without the
state's concurrence. A state may request EPA to defer and there
would have to be a set of conditions that EPA would determine
that a state was not making adequate progress toward the
cleanup in order to list the site despite a state's request to
defer the listing. So it is more limited in current law as a
result of the 2002 amendments.
Mr. McNerney. Well, last week we heard from state
organizations who claim to have little or no input into the
process. Could you explain the disconnect?
Mr. Bearden. Well, I can't speak to their level of
understanding but if one reads Section 105(h) of CERCLA, which
was added again in the 2002 amendments, a state merely has to
request that EPA not list a site, and at that point that limits
EPA's authority, again, unless a determination is made under
the statutory criteria that listing is necessary to protect
human health and the environment.
Mr. McNerney. OK. There is a disconnect there, clearly. You
said that the Federal Facility Accountability Act of 2013 would
hold federal agencies more accountable at federal facilities to
include current and former federal facilities to encompass the
entire phase of the cleanup process and to clarify in greater
detail the extent to which substantive and procedural cleanup
requirements of state law apply to federal facilities. Can you
explain the impact that this would have on listing of NPLs?
Mr. Bearden. Well, it would not have a direct bearing on
the listing of sites on the National Priorities List. It would
determine, based on the language in the bill, whether it would
apply to either National Priorities List sites and non-National
Priorities List sites. It would determine what requirements
that are substantive and procedural of the state may be applied
to the cleanup. It would determine how the cleanup may be
performed and apply regardless of listing status.
Mr. McNerney. Thank you. Mr. Trimble, in your testimony you
stated that CERCLA authorizes the EPA to compel potentially
responsible parties to clean up their sites. Do you think that
the proposed bills would undermine the EPA's authority in this
compelling the potentially responsible parties to clean up
their sites?
Mr. Trimble. I don't know if I have any work that would
speak directly to that, and I think you would have to see how
these things were implemented. I think if EPA is restricted in
taking immediate, sort of response actions, that could be one
issue that could come up. I am not sure I have much more to
offer than that on that question.
Mr. McNerney. Well, the authority for funding the actual
cleanup expired 18 years ago despite the increasing financial
liability since that time. Rather than trying to restructure
the authority in CERCLA, Congress should, in my opinion,
reinstate the fees on which the old funds relied. Are there
other funding sources that would be viable to supplement the
fund?
Mr. Trimble. GAO has not taken a position or looked at
alternative funding issues for Superfund. The tax was one
option. Right now it is coming out of general taxes, general
fund. We have done work looking at anticipated future costs in
the Superfund program, and those costs are very difficult to
measure for a variety of reasons. Superfund program managers
have estimated that their costs will likely exceed available
monies going forward as many of these sites get more complex
and complicated, for example, some of the mining sites. But we
don't have an opinion. It is more of a policy question in terms
of where the money comes from, so we don't have a position on
that.
Mr. McNerney. But there is going to be a critical shortage
of funds from all sources to clean up these sites.
Mr. Trimble. Well, the program will continue to need a lot
of money going forward.
Mr. McNerney. Thank you. I yield back, Mr. Chairman.
Mr. Shimkus. The gentleman yields back his time. The chair
now recognizes the gentleman from Ohio, Mr. Johnson, for 5
minutes.
Mr. Johnson. Thank you, Mr. Chairman, for the time, and
gentlemen, thank you both for being here with us today.
Mr. Trimble, has your office ever conducted a review of
other federal agencies' implementation of institutional
controls as a part of removal or remedial actions conducted
pursuant to authorities granted under CERCLA or Executive Order
12580?
Mr. Trimble. To my knowledge, we haven't. I mean, I can
certainly check when I go back, but I am not familiar with
prior work on that issue.
Mr. Johnson. Would you please check and get back with us?
Mr. Trimble. Absolutely.
Mr. Johnson. I would appreciate that. Do you think it would
be constructive to conduct such a review?
Mr. Trimble. Absolutely.
Mr. Johnson. Let me go also to you, Mr. Trimble. In June of
2006, GAO conducted a review of EPA's implementation of
institutional controls by the EPA Superfund program. In this or
any subsequent review, were you able to ascertain whether EPA
routinely complies or requires compliance with state land-use
control or environmental covenant laws and regulations?
Mr. Trimble. And I apologize, I am not familiar with that
report and I would love to take that for the record, if I
could.
Mr. Johnson. Good. I would appreciate that as well. Would
it be fair to anticipate that requiring federal agencies, in
your mind, would it be fair to anticipating that requiring
federal agencies to comply with state laws that require that
institutional control be implemented and enforced in perpetuity
that this would help ensure that these controls are in fact
maintained for as long as they are necessary to protect human
health and the environmental?
Mr. Trimble. I am curious about the work we have done in
the past but I think the key question is whether or not they
currently are considered in the existing procedures and
processes, whether or not there is a disconnect between the
states' desires to apply certain controls and whether those are
actually going on into effect and whether or not they have
enough leverage to make that happen. If there is a breakdown
there, then certainly there is an issue to be looked at.
Mr. Johnson. Thank you. If you would get back to the
committee on that, I would appreciate it.
Mr. Trimble. Absolutely.
Mr. Johnson. Mr. Chairman, with that, I will yield back my
time.
Mr. Shimkus. The gentleman yields back his time. The chair
now recognizes the gentlelady from California, Ms. Capps, for 5
minutes.
Mrs. Capps. The bills before us may affect many aspects of
the program's ability to accomplish this goal but my time is
limited so I want to focus on one particular provision. My
first question is going to be for you, Mr. Bearden. The federal
and state partnership bill we are examining includes an
amendment that could complicate and impede, in my opinion, the
streamlined process currently in place for short-term Superfund
removal actions. So I wanted to ask you, Mr. Bearden, can you
explain what removal actions are and why we need to be able to
undertake them quickly?
Mr. Bearden. Removal actions can be conducted in two
different capacities. One is referred to programmatically as
time critical. The other is non-time critical. At any site
where a release is reported and EPA, state and local officials
become aware of it, the very earliest actions to stabilize the
site may be considered in practical terms to be the early
emergency phase of the response, but the removal action can
continue much longer than that, especially the non-time-
critical removal actions. So there are various phases even for
the removal aspect of the process.
Mrs. Capps. So some removal actions are very pressing and
are needed to address imminent public health threats. I mean,
that could be the trigger that necessitates quick action. Am I
right?
Mr. Bearden. Correct. The initial response is a removal,
and the very earliest stage of the response is to stabilize the
site and prevent potentially harmful exposures at the very
earliest stages.
Mrs. Capps. OK. Moving on, these imminent threats are why
these actions have always been done in a streamlined process.
In testimony they provided last week, the EPA expressed concern
that this legislation as currently drafted would require
consultation before removal actions could even begin. The
Agency said the bill could, and this is a quote from EPA, ``The
bill could have an adverse impact on your emergency removal
program by introducing potential delays when EPA needs to
conduct time-critical emergency removal actions.'' Having a
Superfund site in my district, this is a big concern for me,
the timing that we are talking about.
So Mr. Bearden, do you agree with EPA's assessment that
this procedural change has a potential to delay removal
actions?
Mr. Bearden. Well, CRS would not agree or disagree with an
agency position but what I can say is, at the very earliest
stages of the emergency response, even under the regulations of
the National Contingency Plan that EPA promulgated, state and
local officials are expected in most cases to be the first
responders. So it is actually the state and local officials who
are on site. Most often it is the local fire department, local
police department, to stabilize the emergency conditions and
then it becomes elevated to EPA's attention.
Mrs. Capps. And your careful delineation of those steps
indicates that the reason they are done that way is to enable a
prompt response and timely response.
I have only one question left, but I want to make sure that
I ask you, Mr. Trimble, the GAO has done work on contamination
at Superfund sites nationwide and on health assessments of
Superfund sites done by the Agency for Toxic Substance and
Disease Registry. These assessments find risks of cancer,
development issues, neurological effects. So my question to
you, Mr. Bearden, what could be the consequences of delaying
emergency removal actions?
Mr. Bearden. Assuming the delay actually resulted in
increased exposure to whatever contaminants, then the problems
being cited by ATSDR could be expected to be great.
Mrs. Capps. So you two are sort of in agreement with the
notion that if something is discovered, that the local
responders really are in the best position because they are
close and can make that initial assessment. It doesn't remove
EPA's responsibility but it allows the emergency response to
happen the way emergency responders are trained to do. They
come in and make an assessment when there is a little more time
in their favor. Would you agree? Any other comments you wish to
make on either of these points, either of you?
Mr. Bearden. No.
Mrs. Capps. Then I will yield back the balance of my time.
Mr. Shimkus. The gentlelady yields back her time. The chair
now recognizes the gentleman from Florida, Mr. Bilirakis, for 5
minutes.
Mr. Bilirakis. Thank you. I appreciate it, Mr. Chairman.
Mr. Bearden, what recourse do states currently have if they
disagree with an EPA decision or remedy and what recourse do
states have if they disagree with another federal agency's
decision or remedy?
Mr. Bearden. Under the current existing mechanism, if it is
a site that would be funded with federal Superfund
appropriations for the remedial action, since the state is
responsible for sharing the cost, as I outlined in my prepared
statement, the state may choose not to provide those matching
funds, and under existing law in CERCLA, EPA would not have the
authority to use the federal Superfund appropriations. So that
is some leverage that the state could be provided, and that is
the underlying intent of the way the matching funds
requirements are structured to have a factor be included in the
federal decision on whether or not the state agrees to provide
its match. So those again are circumstances where Superfund
appropriations are used so that would not apply to sites where
private potentially responsible party funds are used through
enforcement actions. In those cases, then the state input is
limited to the consultation process under existing law.
In terms of federal facilities, as was mentioned earlier,
there is a provision in existing law for states to challenge a
selection of a remedial action in a U.S. District Court as
outlined in my statement, so that is a mechanism specifically
at federal facilities where it would be administered and funded
by other federal agencies like the Department of Defense and
Department of Energy.
Mr. Bilirakis. Thank you. Mr. Trimble, during the first day
of this hearing, the subcommittee heard testimony comparing the
compliance rate of federal facilities under the Clean Water Act
and the RCRA. The testimony indicated that due to the ability
of the states to impose and collect penalties under RCRA but
not under the Clean Water Act, that RCRA experiences a
significantly higher compliance rate by federal facilities than
does the Clean Water Act. Has GAO ever conducted a similar
evaluation, and if so, what did you find?
Mr. Trimble. Again, to my knowledge, we have not done such
a study. I am happy again to look to make sure I am not missing
something when I say that. I think in general, the issue of
having a stick to ensure compliance makes people behave better.
As I noted earlier, we have made recommendations in terms of
EPA's ability to make other federal agencies comply. I think
that the issue of DOD's noncompliance with the requirement that
they sign an interagency agreement with the EPA governing the
cleanup at two NPL sites, Tindall Air Force Base in particular
comes to mind, GAO has made recommendations in the past as a
matter of congressional consideration to give EPA more
authority to force compliance by DOD when they are faced with
these kinds of situations.
Mr. Bilirakis. OK. One more question, Mr. Chairman.
Mr. Trimble, in your testimony you mention Executive Order
12580. Does this Executive Order enable some or all federal
agencies including those that are potentially responsible
parties to self-regulate and make determinations regarding
their compliance with state and federal cleanup requirements,
and if you can please explain briefly?
Mr. Trimble. Again, I will probably lean on David to help
me out here.
Mr. Bilirakis. OK. That would be great.
Mr. Trimble. But I think it gives agencies like DOE and DOD
the authority to manage the cleanups. EPA is still in sort of a
partner position but also to provide independent oversight on
those activities to make sure the cleanups are done
appropriately, which, again, speaks to the need for that
interagency agreement at places like Tindall to make sure they
are being done appropriately on time and to the correct
standards.
Mr. Bilirakis. Yes, please.
Mr. Bearden. Yes. All I would add to that is, when it is a
federal agency like the Department of Defense, Department of
Energy, there can be other federal agencies as well, the
Executive Order that you cited authorizes that agency to
execute the President's authority for the response action,
which is carrying out the cleanup itself. But when it is a
National Priorities List site and a federal facility, as Mr.
Trimble mentioned, EPA has a prominent oversight role, and
actually under existing law has final decision-making authority
at the federal level for selecting the cleanup actions and the
deference is to EPA, not the federal agency responsible for
carrying out the cleanup. And in terms of state involvement, if
it is a non-National Priorities List site, the state primarily
is responsible for overseeing that cleanup carried out with the
President's delegated authorities under the Executive Order.
Mr. Bilirakis. Thank you. I yield back, Mr. Chairman.
Mr. Shimkus. The gentleman yields back his time. The chair
now recognizes the gentleman from Pennsylvania, Mr. Pitts, for
5 minutes.
Mr. Pitts. Thank you, Mr. Chairman. I just had a couple
questions. Sorry to be in and out with meetings. I apologize of
this has been asked.
Mr. Bearden, we understand that it is currently EPA's
policy not to list a site on the National Priorities List over
the objection of the state. Do you think that codifying the EPA
policy in the statute would ensure that states could count on
this policy?
Mr. Bearden. Well, codifying it in statute and making it
binding by law would certainly require EPA to adhere to that
policy.
Mr. Pitts. Wouldn't codifying the policy to not list a site
on the National Priorities List eliminate any potential
inconsistent among the regions?
Mr. Bearden. Yes, there would not be any discretion in
implementing the existing policy if it were to become a uniform
statutory requirement in all cases.
Mr. Pitts. Now, do you have any comments or opinions
regarding whether it would be benefit to authorize EPA to
review actions taken by other federal agencies under CERCLA to
ensure consistency with EPA cleanup guidelines, rules and
regulations?
Mr. Bearden. Well, under existing law, when it is a federal
facility on the National Priorities List, already EPA has the
authority under the interagency agreement to make a decision on
the final remedy selection. So there already is that mechanism
for ultimate review in making a decision.
Mr. Trimble. If I could add to that, what is missing,
though, is giving EPA the stick if they find noncompliance. So
I believe the way the language is written, it allows EPA to
review, but what happens if EPA finds somebody is in
noncompliance? And that is sort of the situation we have today.
Mr. Pitts. Thank you. Thank you, Mr. Chairman.
Mr. Shimkus. The gentleman yields back his time. The chair
wants to ask unanimous consent for a couple letters to be
submitted in the record, one letter from public interest groups
on RCRA Section 202(b) and CERCLA 108(b), a letter from other
public interest groups on CERCLA Section 113(h) and Section
105, and a letter from Headwaters Resources, also signed by
Boral Material Technologies. They were referred to in the first
testimony, and I quote a line in here: ``Headwaters and Boral
utilize Section 202(b) of RCRA in an attempt to end the recent
uncertainty as a matter of overall governance. We think Section
202(b) RCRA makes for poor public policy. It could enable
special interest groups through deadline suits to set EPA's
agenda.'' So we will submit those into the record.
[The information appears at the conclusion of the hearing.]
Mr. Shimkus. I am joined by my colleague from Texas, Mr.
Green. You are recognized for 5 minutes.
Mr. Green. Thank you, Mr. Chairman. I apologize to our
witnesses. We are balancing two committees at the same time,
and I just finished in the O&I Committee.
I want to thank you for holding the hearing today. I am
happy to see GAO and CRS come before us subcommittee to speak
on proposals to amend CERCLA and RCRA.
I have a very urban district in Houston, and it is East
Harris County, which is a heavy industrial large petrochemical
complex in the country, and there are a number of Superfund
sites in and near our district that I have been involved with
other the years. The most recent one, although it has been
there a while, includes the U.S. oil recovery site in Pasadena,
which was added to the National Priorities List last year. From
my experience, the Superfund program has played a value role in
protecting the environment and human health of my constituents
and for Americans for all 50 states, and I am concerned how the
proposed legislation would change this program.
Mr. Bearden, is it true that the EPA is already obligated
by federal statute to give substantial deference to the states
on naming sites to the NPL?
Mr. Bearden. The substantial deference is a result of the
2002 amendments. EPA may still list a site if EPA determines it
is necessary to protect human health and the environment but
generally defers to the state if they desire not to list the
site.
Mr. Green. Well, the two I have been involved in, we got
concurrence from the state agency. In fact the state agency was
very happy to have them listed on the site including the
current one.
Mr. Bearden, is it that true that the 2002 amendments to
limit EPA's enforcement authorities to CERCLA to pursue the
cleanup of a site if a state is already pursuing the cleanup
under its own law?
Mr. Bearden. Yes. The 2002 amendments address that issue.
Mr. Green. You know, again, my experience with Texas is
that we have had good cooperation between our regional office
on our Superfund sites. I wish we didn't have them, but again,
in an industrial area, that is going to happen if you have been
producing chemicals and things for 60, 70 years.
Mr. Bearden or Mr. Trimble, to your knowledge, has a site
ever been added to the NPL without the concurrence of the
governor of the state in which a site is located?
Mr. Bearden. I am not aware of one myself.
Mr. Trimble. I am not either.
Mr. Green. Mr. Trimble, in your testimony you noted that
over 40,000 potential hazardous release sites have been
reported to EPA over the past 30 years and yet EPA has
determined only a few thousand of those sites for NPL
designation. Is that true?
Mr. Trimble. That is correct.
Mr. Green. What happens to those sites that are reported to
EPA and not added to the NPL?
Mr. Trimble. They are generally cleaned up under other
cleanup authorities, so in our most recent report, we note that
sites that are assessed at a level where the contamination
would make them eligible for Superfund, so they are severely
contaminated sites, the majority of those sites actually are
not handled by the Superfund program but are cleaned up under
cleanup authorities principally managed by the states. The
states manage about 47 percent of all those sites.
Mr. Green. So the states handle about--so some of the sites
are deferred to the states and so that is about 47 percent of
them?
Mr. Trimble. Yes, the states handle more Superfund-caliber
sites than EPA does under the Superfund program.
Mr. Green. You know, in my experience, though, I haven't
had the state being one to take it over because it has always
been EPA oversight in cleaning up. Our problem is making sure
we do due diligence and find a responsible party. Otherwise it
is going to be the taxpayer that ultimately does it, which
makes it harder, Mr. Chairman, when we don't have budget
appropriations. That is why responsible parties are really
important.
You stated in your testimony the number of NPL site
designations has increased in recent years. Is that true?
Mr. Trimble. That is correct. I believe it is running about
22 a year.
Mr. Green. And again, a few years ago, in Congressman Ted
Poe's district we were borders. It is a dioxin facility that
actually submerged back in the 1960s and nobody knew about it,
but we always knew that the Port of Houston had higher dioxin
levels, but my industries that were there were being blamed for
it and yet it was from an old site that very quickly
Congressman Poe and I worked with EPA to be able to put it on
the NPL. So it was a very bipartisan effort, and again, the
state was happy that we finally were able to find the source of
that. We still have a cleanup problem. It is encapsulated. How
do you deal with sediment in a river that is, you know, 40
years old. Can you explain the number of designations has
increased and why the number of designations increased in
recent years?
Mr. Trimble. A couple of factors that we have discussed in
our reports. One is, it is often linked to states' abilities to
take on these sites so with the economic downturn in the last
few years, the states' ability or willingness to take on the
cleanup responsibilities for these has gone down, which means
the burden gets shifted to the federal government. And then
also there is some emergence of a growing number of complicated
sites, like abandoned mine sites, that have come on over.
Mr. Green. Thank you, Mr. Chairman, for having the hearing.
Mr. Shimkus. The gentleman's time is expired. The chair now
recognizes the ranking member of the full committee, Mr.
Waxman, for 5 minutes.
Mr. Waxman. Thank you very much, Mr. Chairman. I thank you
for reconvening the hearing today, and I am pleased that we
have the opportunity to hear from knowledgeable experts about
the Superfund program.
The legislation before us has been presented as correcting
a problem where states are not sufficiently consulted in the
decisions to clean up contaminated sites through the Superfund
program. The argument is that although Superfund is a federal
program carried out by federal employees using federal
resources, a state should be able to slate sites for cleanup,
veto sites from being slated for cleanup, have a greater say in
cleanup decisions, and even collect their attorney fees from
the U.S. taxpayer when they sue the federal government. I am
not sure this approach strikes the right balance.
Mr. Trimble, if a state wants more control over the cleanup
of a contaminated site, the state can simply conduct its own
cleanup under state law and retain full control of all
decisions. Isn't that right?
Mr. Trimble. That is correct.
Mr. Waxman. And in fact, this happens regularly, doesn't
it?
Mr. Trimble. Yes, it does. About 47 percent of all
Superfund-caliber sites are managed by the states.
Mr. Waxman. The states don't always do that, though,
because they want federal resources and expertise brought to
bear to get sites cleaned up. Isn't that correct?
Mr. Trimble. That is correct.
Mr. Waxman. In fact, the states often request that EPA come
in and conduct expensive removal actions and response actions,
don't they?
Mr. Trimble. Yes.
Mr. Waxman. The federal government pays the entire cost of
a removal action. The states pay just 10 percent of the cost of
a response action. The rest is picked up by the federal
government. Is that correct?
Mr. Trimble. I believe that is true for remedial actions. I
am not sure about removal.
Mr. Waxman. And there is a great variation among the states
in their capacity and resources to carry out site cleanups,
isn't there? Some are better at it than others?
Mr. Trimble. Absolutely.
Mr. Waxman. Even though Superfund is a federal program, the
law provides for significant state involvement. Under the
statute as it currently stands, EPA is required to provide
``substantial and meaningful participation'' to states.
Mr. Trimble, under current law, are states involved in
suggesting sites for cleanup under Superfund?
Mr. Trimble. They are, yes, in terms of reporting sites
with contamination and then EPA has a consultative process.
Mr. Waxman. So they can propose sites and have the ability
to directly list one site on the National Priorities List.
Isn't that the case?
Mr. Trimble. I would defer to Mr. Bearden for a more
thorough answer on that, but I don't think they have the
authority to list. I mean, I wouldn't go quite that far.
Mr. Waxman. Let me continue with my questioning for you.
Under current law, EPA seeks concurrence from states before
slating a site for cleanup on the National Priorities List. Is
that correct?
Mr. Trimble. Under policy, correct.
Mr. Waxman. Under current law, states can block EPA from
carrying out a selected response action by not agreeing to pay
the cost share for that response action. Isn't that right?
Mr. Trimble. Yes, EPA could not use funds to clean that
site up under the Superfund program without state concurrence.
Mr. Waxman. Finally, Mr. Trimble, if a state wants to take
a leadership role at a Superfund site under current law, they
can assume the lead under cooperative agreements with EPA.
Isn't that correct?
Mr. Trimble. That is correct.
Mr. Waxman. Thank you. It is natural that a state would
want to be able to tell EPA what to focus on and what to spend
money on and what not to spend money on. It is natural that a
state would want federal resources available for use at their
discretion. But this is a national program that must be
available to clean up the most contaminated sites in every
state. It is our job to ensure a balanced approach.
Mr. Chairman, I have serious concerns about certain aspects
of these bills. I think they are a work in progress. If you are
interested in moving these bills, I urge you to convene a
process that would allow us to examine whether there are
problems here that need to be addressed and how to address
them.
I thank the witnesses, and I hope the chairman will consult
with us on some of these ideas.
Mr. Shimkus. The gentleman yields back his time. Just to
address the ranking member, we have already had some staff
attempts to talk about this. This is a legislative hearing. I
think there are two issues raised on some of the provisions
that it would be helpful to get input and maybe move forward,
and we will let our staffs give that a try first, and if
members want to be engaged, they know where to find me.
With that, we want to thank our second panel for coming.
This is a legislative hearing, which is for us to gather input,
which we have done today with your help and your expertise. We
thank you, and with that, the hearing is now adjourned.
[Whereupon, at 11:33 a.m., the subcommittee was adjourned.]
[Material submitted for inclusion in the record follows:]
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