[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 ---------- U.S. GOVERNMENT PRINTING OFFICE 82-195 PDF WASHINGTON : 2013 ----------------------------------------------------------------------- For sale by the Superintendent of Documents, U.S. Government Printing Office Internet: bookstore.gpo.gov Phone: toll free (800) 512-1800; DC area (202) 512-1800 Fax: (202) 512-214 Mail: Stop IDCC, Washington, DC 20402-0001 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:] [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]